Thank you, Mr. Nerysoo. Good afternoon and I hope you had a good break.
Speaker's Ruling
Today, I would like to make a ruling on a point of order raised by the Member for Mackenzie Delta, Mr. Nerysoo, on March 10, 1995, concerning the tabling of unsigned letters and the use of individuals' names in the House and in documents.
I would like to provide the House with some background on the point of order raised. The point of order raised two points for consideration: one being our practice for the tabling of documents; and, the other being the use of individuals' names in the House, whether it be by direct reference or through reference in other procedures such as the tabling of documents.
The Members will recall that when the point of order was raised, I permitted those Members who wished to provide comments on the point to do so. I would like to thank those Members who spoke and, as I indicated, I thanked the Member for Mackenzie Delta, Mr. Nerysoo, for raising the point of order as the issue of tabling of unsigned documents had come up on March 7, 1995. At that time, I had concerns about it, but it is not the chair's responsibility to raise points of order unless they are an obvious infraction of the rules or of parliamentary precedent.
I carefully considered many authorities while preparing this ruling and found that what has developed as practice in our Legislature does not occur in many other jurisdictions. This is not to say that our practices are improper but, as with most procedures and practices, they have to be tested and reviewed in light of changing circumstances and when they arise. I feel it is important to start at the beginning and go through the whole aspect of a ruling on a point of order. A point of order, as outlined in Beauchesne's 6th edition, citation 317, states:
"(1) Points of order are questions raised with the view of calling attention to any departure from the Standing Orders or the customary modes of proceeding in debate or in the conduct of legislative business and may be raised at virtually any time by any Member, whether that Member has previously spoken or not.
"(2) A question of order concerns the interpretation to be put upon the rules of procedure and is a matter for the Speaker or, in a committee, for the Chairman to determine."
It could be argued that the point of order raised by the Member for Mackenzie Delta, Mr. Nerysoo, should have been made earlier when the event occurred, and again I quote from Citation 321: "A point of order against procedure must be raised promptly and before the question has passed to a stage at which the objection would be out of place."
I considered this but was guided by Citation 319 which states:
"Any Member is entitled, even bound, to bring to the Speaker's immediate notice any instance of a breach of order. The Member may interrupt and lay the point in question concisely before the Speaker. This should be done as soon as an irregularity is perceived in the proceedings which are engaging the attention of the House. The Speaker's attention must be directed to a breach of order at the proper moment, namely the moment it occurred."
I would suggest that the Member for Mackenzie Delta, Mr. Nerysoo, raised the point of order as soon as practicable after he had an opportunity to review in detail the tabled document in question, that being Tabled Document 56-12(7), tabled by the Member for Thebacha, Mrs. Marie-Jewell, on March 8, 1995. This issue raised by the Member is not an easy one and I suspect required the Member to carefully review the facts and rules prior to drawing the attention of the House to this issue. As indicated, I asked for Members' opinions on the matter which, again, was permissible and confirmed by Beauchesne's Citation 325:
"In all matters of doubt, the Speaker will consider attentively the opinions of Members. Sometimes, instead of expressing an opinion on either side, the Speaker may ask instructions from the House or reserve his decision on the point of discussion, or suggest that the House may, if it thinks proper, dispense with the Standing Order in a particular case. In doubtful cases, the Speaker will be guided largely by circumstances."
I would like to advise the House that the point of order raised by the Member for Mackenzie Delta became quite far-reaching and I was required to address a number of procedural points. I would now like to address the first issue, that of the tabling of documents, and then I will specifically address the issue of the unsigned letter that was tabled as Tabled Document 56-12(7).
The item "tabling of documents" appears on the order paper daily and, until 1991, there was not even a rule that addressed this item. We now have a rule that only addresses the permissive nature of allowing a document to be tabled. Rule 43 states, and I quote:
"Under the item, "Tabled Documents," a Member may provide to the House any document which is required to be tabled in the House by any Act or order of the Assembly, or which may be in the public interest. A Member may make a brief factual statement to identify the document."
In the majority of other Canadian jurisdictions, documents are only permitted to be tabled by a Minister. Beauchesne's Citation 431 states: "Standing Order 32 provides a way for Ministers to table documents in the House. It does not impose an obligation on the Minister to do so."
The tabling of documents in other jurisdictions is restricted to documents that fall into the following categories and is outlined in Beauchesne's Citation 435:
"(1) Papers are laid before the House in pursuance of:
(a) provisions of an Act of Parliament.
(b) an Order of the House.
(c) an Address to the Crown.
(d) Standing Orders of the House."
I note that the Legislative Assembly of Manitoba does permit Members, other than Ministers, to table documents, but with some restrictions. The Senate of Canada, as recently as 1991, amended their Standing Orders to make reference to the tabling of documents as, like us, they did not have a specific rule regarding the tabling of documents. The Senate rule allows documents to be tabled but they must be presented by the leader of the government in the Senate. They do, however, permit a Senator to table a document as provided for in Rule 29(3) and I quote: "with unanimous consent, any Senator may table a paper relating to the business before the Senate."
It should be noted that the Member for Thebacha, Mrs. Marie-Jewell, did raise concerns regarding certain letters that were tabled by the government on March 2, 1995 as Tabled Document 40-12(7). The Member also noted that the letters were unsigned and that we have no specific rules concerning the tabling of unsigned letters.
Beauchesne's 6th edition again provides us with some guidance in this matter as it relates to the productions of papers:
Citation 444: "There is a general rule that papers should be ordered only on subjects which are of a public or official character."
Citation 445: "The House shall decide after debate, if desired, whether it will order a document to be laid upon the Table."
Citation 446: "In 1973, the government tabled in the House of Commons its view on the general principles governing Notices of Motions for Production of Papers:
1) To enable Members of Parliament to secure factual information about the operations of Government to carry out their parliamentary duties and to make public as much factual information as possible, consistent with effective administration, the protection of the security of the state, rights to privacy and other such matters, government papers, documents and consultant reports should be produced on Notice of Motion for the Production of Papers unless falling within the categories outlined below, in which case an exemption is to be claimed from production."
In addition to the aforementioned citation, there is listed in Beauchesne's Citation 446(2), the criteria that should be applied in determining if government papers or documents should be exempt from production. There are five specific exemptions that I took into consideration in reviewing this matter.
Citation 446(2) subsections:
"(f) Papers reflecting on the personal competence or character of an individual.
(j) Papers relating to negotiations leading up to a contract until the contract has been executed or the negotiations have been concluded.
(l) Cabinet documents and those documents which include a Privy Council confidence.
(n) Papers that are private or confidential and not of a public or official character.
(o) Internal departmental memoranda."
In undertaking the review of authorities, there are a number of procedures that may be appropriate for consideration by the House as to what should or what should not be permitted to be tabled in this House. For example, there are limitations in the House of Commons when it comes to the correspondence of Ministers of a personal nature, or dealing with constituency or general political matters. This limitation is contained in Beauchesne's Citation 446(3), and I quote:
"Ministers' correspondence of a personal nature, or dealing with constituency or general political matters, should not be identified with government papers and therefore should not be subject to production in the House."
If we were to apply the restrictions provided for in the House of Commons, it would require us to cease the practice of allowing any Member to table a document, and I quote from Citation 495(6):
"A private Member has neither the right nor the obligation to table an official, or any other, document."
Do you understand it so far, Members?
This is used as an illustration that there are restrictions in place in other jurisdictions. There is also specific guidelines regarding consultant studies and whether documents which are requested of the government to be tabled, either by oral or written questions and are, in the opinion of the government, confidential, do not have to be tabled. It should be noted that up until now there has not been the need to apply similar restrictions to the tabling of documents in our House, as is the case in other Canadian jurisdictions. However, the time has come to address some of these issues and the point of order raised by Mr. Nerysoo affords us the opportunity to address them. As Members are aware, there have been a number of items that have been tabled in this House over the years that, of course, would not strictly be considered a document and I refer to such items as fish heads, a piece of sewer pipe and photographs. Like all Members, I would hope that our rules and procedures are flexible enough to permit all Members to fulfil their duties to their constituents and the general public without being unduly impeded. There are times, though, when rules or procedures have to be in place to protect not only the elected officials but to safeguard the basic rights of all individuals, despite their status.
On the question of what documents should or should not be allowed to be tabled, I would like to refer this matter to the Standing Committee on Rules, Procedures and Privileges with the instruction to develop procedures and guidelines and recommend rule changes if they feel necessary. The standing committee should consider all aspects of the tabling of documents as to the types that would be permissible with the guiding principle that the privilege of tabling documents is to afford Ministers the opportunity to present documents that provide factual information about the operations of government. Any procedures recommended should also recognize the ability of all Members to table documents also to provide factual information to the House in the interests of the public good. I would further request that this matter be considered in a timely fashion by the Standing Committee on Rules, Procedures and Privileges so that a report is presented to the House as soon as is practicable.
The other question that has arisen is the tabling of letters that are unsigned. There are two incidents that have occurred that have given rise to the concern. The first was raised by the Member for Thebacha, Mrs. Marie-Jewell, on March 7th concerning unsigned letters tabled by the government. The comments on that point are contained on pages 1228 and 1229 of unedited Hansard. The second was raised again by the Member for Thebacha, Mrs. Marie-Jewell, on March 8th with the tabling of an unsigned letter. The Member, while tabling this unsigned letter, indicated in her tabling statement, and I quote from page 1280 of unedited Hansard:
"Mr. Speaker, since we have no rules on unsigned documents in this House, I'd like to table Tabled Document 56-12(7): it's correspondence that I received as a Member, from a Tu Nedhe constituent regarding improper use of government vehicles and warehouse facilities in the community of Fort Resolution."
The Member for Thebacha, Mrs. Marie-Jewell, went on further to explain in her tabling statement, and I quote again from page 1280 of unedited Hansard:
"Mr. Speaker, this correspondence was received in January and it's not my responsibility to address Tu Nedhe concerns as the elected Member for Thebacha. Therefore, I'd like to table this document so the appropriate individual can address it. At this time, I would also like to table the envelope that this letter was sent in. Thank you."
The point of order raised by the Member for Mackenzie Delta, Mr. Nerysoo, is threefold; the first point being the practice of allowing unsigned letters to be tabled. The second point is the use of individuals' names and, in this case, in an unsigned letter, and also the general reference to individuals in the House. The third concern expressed was that the unsigned letter tabled by the Member for Thebacha contained certain allegations against a civil servant. I have reviewed many authorities on this issue and there are no direct references to whether it is or is not permissible to table unsigned letters in an Assembly or the House of Commons. It was necessary to refer to other rules that require documents to be tabled. I refer to the practice of presentations of petitions. The rules currently require the following, and I quote from our Rules 42(1), (2) and (5):
"42(1) A petition to the Assembly may be presented by a Member at any time during a sitting of the Assembly by filing it with the Clerk, or in the manner set out in Rule 42(2).
42(2) A Member may present a petition from his or her place in the House under the item "Petitions." The Member shall endorse his or her name on the petition and shall confine the presentation to a statement of the petition, the number of signatures and the material allegations. A Member shall not exceed five minutes in presenting a petition.
42(5) A Member presenting a petition shall be answerable for any impertinent or improper matter that it contains."
I think a link can be made to the requirement for petitions to be signed as well as having to be endorsed by the Member presenting the petition. Further direction in this regard can be found in Beauchesne's Citation 1020: "All petitions must be endorsed on the back of the first page by a Member and be dated." Also Citation 1024 states: "A petition must have original signatures or marks, and the addresses of the petitioners. The signatures must be written on the petition itself and not pasted upon or otherwise transferred to it."
It should be noted that there are alternative methods for presenting petitions. They may be filed by a Member with the Clerk who will report it in accordance with Rule 42(3). Citation 1038 of Beauchesne's 6th edition also provides for the following:
"(1) A Member cannot be compelled to present a petition;"
"(2) The presentation of a petition does not necessarily commit a Member to the views expressed in it."
I use these references to illustrate the obligations on Members as they relate to the presentation of a document, in this case a petition. I am of the opinion that the basic right of the residents of the Northwest Territories to petition their Legislative Assembly is an important process that has to be protected. The Chair feels that the fact that there are rules and procedures that have to be observed indicates the importance placed on protecting the integrity of the petition being presented and that of the Member. These rules are explicit. The text of a petition cannot state implications or allegations and I quote from Beauchesne's Citation 1029 (1), (2) and (3):
"(1) The language of a petition should be respectful, temperate and free from disrespect to the Sovereign or offensive imputation upon the character and conduct of Parliament, the Courts of Justice, or any other tribunal or constituted authority.
"(2) A petition should seek the redress of grievances and should refrain from expressing an opinion with regard to the House, the Government or the positions taken by Members of the House. Expressions which would be in order from a Member of the House may not be in order when presented as a petition.
(3) A petition should not contain statements which constitute charges of a very strong character against a Minister or senior officials."
The tabling of the unsigned letter by the Member for Thebacha, Mrs. Marie-Jewell, gave rise to the point of order, but I noted that the same concern was expressed concerning unsigned letters that were contained in Tabled Document 40-12(7) which was tabled, at the request of a Member, by the government on March 2, 1995. It should be noted that the Government House Leader, the Honourable John Pollard, indicated on Friday, March 10th, and I quote from page 1416 of unedited Hansard:
"Mr. Speaker, I had made a commitment to table a document today which was an update of the Fort Smith aircraft facility, history of GNWT decisions and communication with Fort Smith, revised.
"Mr. Speaker, in light of the point of order by Mr. Nerysoo today and in light of the fact that you're going to give us a ruling and because there are still some documents that are unsigned in this particular document I was going to put before the House, I will not do it today but await your ruling. Thank you, Mr. Speaker."
One of the most relevant citations that I considered while examining this aspect of my ruling was Citation 498 (1) and (3):
"(1) An unsigned letter should not be read in the House.
"(3) When quoting from a letter in the House, a Member must be willing either to give the name of the author or to take full responsibility for the contents."
Although in the case before us, the unsigned letter was not read in the House, it was tabled and therefore did become part of the public record.
I would also suggest that similar points are made in the Fourth edition of Bourinot's Parliamentary Practice and Procedure in the Dominion of Canada, and I quote from page 336:
"It is not allowable to read any petition referring to debates in the House, and where the language of the document is such as would be unparliamentary, if spoken in debate, it cannot be read. No language can be orderly in a quotation which would be disorderly if spoken."
In my review I was also guided by two rulings of the Legislative Assembly of Manitoba on the same point regarding the tabling of unsigned letters. In Mr. Speaker Rocan's ruling of November 14, 1988, he ruled as follows:
"On November 4th, the Honourable Member for St. Johns tabled in this House a document respecting the Free Trade Agreement. Following precedent, I took the admissibility of the document under advisement because it was unsigned, not directed to any specific individual or organization and its origin was in no way identified. Neither the rules of this House, nor the practices of the House of Commons specifically address the question of admissibility of tabled documents as it applies in this case. Reviewing previous Manitoba Speakers' rulings, I noted that Speaker Hanuschak, in a 1970 ruling, stated that "all letters, when read, must be signed and they become part of the documents of the House." In the same ruling, he indicated that it would not be correct to allow the tabling of such a letter (ie. an unsigned letter.) In 1981, Speaker Graham ruled that "an unsigned and unidentified document is an incomplete document and cannot be considered to be properly before the House. Based on these precedents, I must rule that the document, in its present form, is inadmissible and cannot properly become a document of this House."
After reviewing Parliamentary precedent and rulings from other jurisdictions, I have become clearly aware of the requirements and limitations as to the content for petitions and tabled documents including the concern as to the verification of authenticity of letters and any facts contained therein. It is my ruling that it is not an acceptable practice to table unsigned letters in this House, so therefore all letters tabled, whether it be by the government or by ordinary Members, will have to be forthwith directed from a specific individual or organization, dated and signed.
The other issue that has arisen pertains to the content of letters or documents and in particular the identification of individuals in letters or documents and any allegations that may be part of a letter or document. To provide guidance on this particular issue, I once again could not find any direct ruling or procedure that dealt with naming individuals in tabled documents, or to tabled documents that contain allegations or potential defamation of an individual. As with the requirement for petitions, I had to look at other procedural practices and points that could assist the Chair in providing a ruling on this point. In considering this, I was guided once again by citations from Beauchesne's 6th edition. The two areas of procedure I felt appropriate are covered by the use of oral and written questions. I would like to offer the following citation -- Citation 409(7) -- which refers to oral questions, and I quote:
"In 1975, the Speaker expressed some general principles in order to clarify the regulations and restrict the negative qualifications which traditionally have guided the Question Period:
(7) A question must adhere to the proprieties of the House, in terms of inferences, imputing motives or casting aspersions upon persons within the House or out of it."
A number of points outlined in Citation 428 which refers to written questions may provide further guidance, and I quote:
"A question must not:
(h) contain inferences.
(i) contain imputations.
(n) reflect on or relate to character or conduct of persons other than in a public capacity.
(q) contain or imply charges of a personal character."
As Members are aware, our own rules also give us guidance in dealing with what is considered appropriate in debate. In reviewing the matter further, I considered the issue of whether the general rules of debate that apply to Members in the House should apply to references to those individuals who have traditionally been referred to as protected persons. Beauchesne's offers us some assistance in this regard and I quote to give examples of protected persons. I quote first from Citation 493(1):
"All references to judges and courts of justice of the nature of personal attack and censure have always been considered unparliamentary, and the Speaker has always treated them as breaches of order."
Citation 493(3) goes further by stating:
"The Speaker has traditionally protected from attack a group of individuals commonly referred to as "those of high official station". The extent of this group has never been defined. Over the years it has covered senior public servants, ranking officers of the armed services, diplomatic representatives in Canada, a Minister who was not a Member of either House, and the Prime Minister before he won a seat in the House."
Included in the section on protected persons and under the same citation, it provides the following under subsection (4):
"The Speaker has cautioned Members to exercise great care in making statements about persons who are outside the House and unable to reply."
I further considered citations dealing with the requirement that if a document is read or quoted from by a Minister then it may have to be tabled, and I quote from Beauchesne's Citation 495(1):
"A Minister is not at liberty to read or quote from a despatch or other state paper not before the House without being prepared to lay it on the Table."
There is, however, a limitation on this and I quote from Citation 495(2):
"It has been admitted that a document which has been cited ought to be laid upon the Table of the House, if it can be done without injury to the public interest. The same rule, however, cannot be held to apply to private letters or memoranda."
There is also a long-standing practice that procedures cannot be circumvented in one case by actions that would accomplish something that you cannot do by other means. Once again, I must rely on the procedures for petitions to assist me with this. I also took some time to consider parliamentary privilege as it may or may not apply to the point of order and would like to offer the following from "Parliamentary Privilege in Canada" by Joseph Maingot, Q.C. who states: "that while standing order sets out that: "Members presenting petitions shall be answerable that they do not contain impertinent or improper matter," a petitioner nevertheless could, in a proper case, be held in contempt for delivering to a Member, whether or not it is presented in the House, a petition containing abusive matter notwithstanding that the petitioner would be immune from civil action."
This extract from "Parliamentary Privilege in Canada" of course deals with petitions but in his book, Mr. Maingot goes on to address contempt respecting documents and I would like to provide his comments in that regard which I feel are of assistance:
"Similarly, should any person present documents to a committee of the House of Commons which have been forged, falsified, or fabricated with intent to deceive such committee or the House, or, to be privy to such forging or fraud, this will constitute contempt of Parliament because it is an obvious affront to the House of Commons to present it with such documents. The House of Commons is not only entitled to but demands the utmost respect when material is placed before it for its scrutiny, investigation, or study."
I am of the opinion that a direct relationship can be drawn with our procedures as they pertain to a Member's privilege when a complaint is founded on written words. The most common example of a complaint founded on written or spoken words is based on a newspaper article, editorial or broadcast. When an obviously flagrant case is found to be prima facie by the Speaker, a motion can be introduced to resolve that the article or broadcast was libellous and that its publication is a contempt of the House. This procedure is an indication of the extent to which a Member, or the House collectively, can address allegations or correct wrong information.
As Members are well aware, the privilege of being protected from prosecution for what is said in this House is a fundamental and long-standing right that has been tested and consistently upheld in many court cases. However, as the previous citations and precedents demonstrate, it has also been a long-standing convention that the rights of individuals outside of the Legislature are also protected. The privileges that we have, as Members and as a Legislature, also carry with them great responsibility to ensure that those outside the House are protected. The way in which Members conduct themselves individually and collectively reflects on the institution of the Legislative Assembly.
The chair appreciates the comments of Members who spoke to the point of order which assisted me in preparing this ruling. The respect in which Members hold this institution is clearly evident. In order to uphold and enhance this respect, I will not permit comments, whether written or spoken, in this Legislature that have the tendency to question the personal integrity of others outside the House, or impute motives to those unable to respond or which have the impact of adversely reflecting on the character of those persons outside of this Legislature. The general principle will be that documents will be governed by the same rules that govern debate.
I apologize to the House for such a lengthy ruling but I felt it was important to address as many of the issues as possible, that arose as a result of the point of order by the Member for Mackenzie Delta. Mr. Nerysoo's point of order was quite far-reaching, and I wish to be satisfied that I did not infringe on the rights of any Members or of the House itself. Thank you.
---Applause
I would also like to advise the House that I have received the following communication from the Commissioner: "Dear Mr. Speaker: I wish to advise that I recommend to the Legislative Assembly of the Northwest Territories, the passage of Bill 29, Interim Appropriation Act, April 1 - June 30, 1995, during the Seventh Session of the 12th Legislative Assembly. Yours truly, Helen Maksagak, Commissioner."
---Applause
Mrs. Marie-Jewell, your point of order.
Point Of Order