By Staff
BURLINGTON, ON May 2, 1012 – A couple of weeks ago the Liberal Party of Ontario pulled a dirty on Jane McKenna, the Burlington member on the provincial Legislature. Jane McKenna, not one to let anyone push her around rose in the Legislature to speak on a matter of personal privilege and then proceeded to tell the speaker all about the dirty trick the Liberals had played on her. She wanted the Speaker to do something about it.
She won the election but she didn't win a ruling from the Speaker in the Legislature. The Liberals will think again before they pull the RoboCall trick on Jane McKenna again.
In a phrase the Speaker said: Not this time Lady Jane; you’re just going to have to suck it up. Here is how the issue played out in the Legislature this afternoon.
On April 24, 2012, the Member for Burlington (Mrs. McKenna) rose on a point of privilege concerning
the impact of automated telephone calls on her ability to carry out her MPP duties. The Government
House Leader (Mr. Milloy), the Member for Parkdale–High Park (Ms. DiNovo), the Member for Simcoe–
Grey (Mr. Wilson), the Member for Renfrew–Nipissing–Pembroke (Mr. Yakabuski), and the Member for
Cambridge (Mr. Leone) also spoke to this matter.
Having had an opportunity to review the Hansard for that day, the information provided in the notice, and
the relevant procedural authorities, I am now prepared to rule on the matter.
The Member’s point of privilege relates to automated telephone calls sent to thousands of constituents in
her riding. The calls, which she claims are sponsored by the Ontario Liberal party, indicate that the
Member was, at the behest of her party, planning to vote against the forthcoming Budget motion, thereby
forcing an expensive, unwanted election and jeopardizing funding for a local hospital. The calls, which
indicated that the Member needed to put families first, allowed constituents to share their concerns with
her by pressing number 3 on their telephone keypad; this action would automatically connect them to the
phone number of the Member’s office. The Member’s office was inundated with over 1,500 telephone
calls that swamped its telephone lines and voicemail system.
According to the Member, this resulted in the following:
• Some constituents could not reach the Member.
• The Member had to deal with the telephone calls generated by the automated calls, instead of
telephone calls from other constituents.
• There were service complaints that unjustly damaged her reputation with her constituents.
The Member was of the view that the automated calls obstructed and interfered with her parliamentary
duties and therefore established a prima facie case of privilege.
Before determining whether there is a prima facie case based on obstruction, let me say first that I will
not assess the veracity or tenor of the allegations and opinions made in the automated calls; it is not for
the Speaker to say that they are misleading, inaccurate, false, or inflammatory. Given the political nature
of their workplace, Members are often exposed to criticisms for their actions or intended actions. Dealing
with allegations, opinions and criticisms is part of the job of being an MPP.
That being said, there can be no doubt that obstruction of or interference with a Member in respect of his
or her parliamentary duties can be a matter of privilege. Many of the relevant authorities on the nature of
obstruction were mentioned by the Members who spoke to the matter on Tuesday, and so I will not refer
to them in this ruling. However, what needs to be said is that a Member’s constituency case work and
other constituency responsibilities, while important, are by their very nature distinct from a Member’s
parliamentary responsibilities. As Speaker Carr indicated at page 30 of the Journals for April 26, 2001:
Speakers have consistently found – supported by the procedural authorities and a multitude of
precedents – that privilege attaches only to a Member’s parliamentary duties, and not to
subsidiary duties away from Parliament.
Furthermore, citation 92 in the 6th edition of Beauchesne’s Parliamentary Rules and Forms states as
follows:
A valid claim of privilege in respect to interference with a Member must relate to the Member’s
parliamentary duties and not to the work the Member does in relation to that Member’s
constituency.
The privilege that protects a Member in respect of what he or she says and does in this House and its
committees is known as “parliamentary privilege”; a privilege known as “constituency privilege” does
not exist in Ontario or any other jurisdiction that subscribes to the Westminster model of parliament. To
those who would claim that this demarcation relegates Members’ constituency responsibilities to a
courtesy or inferior status, I would say that parliamentary privilege provides Members with a set of legal
rights and exemptions that more than 13 million other Ontarians do not have. The glass is half full, not
half empty.
The Member for Burlington states that her reputation has been damaged because of the numerous servicerelated
complaints that were made after the automated calls interfered with her office’s usual routine. I
would agree with the Member that damage to a Member’s reputation can amount to obstruction if the
Member is prevented from carrying out his or her parliamentary functions. I make the following
observations about the application of this proposition to the facts in the case at hand:
First, the Member did not indicate how the remarks in and the unwelcome consequences of the
automated calls prevented her from carrying out her parliamentary duties. For example, the
Member did not claim that the automated calls prevented her from speaking in the House on the
Budget motion, or from voting on that motion. The calls only appear to have affected her nonparliamentary
duties, which (as I have already indicated) are not protected by parliamentary
privilege. The best that can be said is that the impact on the Member’s parliamentary duties has
been indirect or tangential – which is not enough to make a case for obstruction based on damage
to the Member’s reputation.
Second, many of the rulings mentioned in the House of Commons Procedure and Practice that
are authority for the proposition that damage to a Member’s reputation can amount to obstruction
deal with MPs’ use of Commons mailing privileges to send misleading information to another
MP’s constituents. In the case at hand, however, there is no indication that Assembly resources
were used to produce or disseminate the automated calls.
Third, the Member for Burlington refers to a remark made in a 1985 ruling by Speaker Bosley of
the Canadian House of Commons. That ruling is about an advertisement that identified a former
MP as an MP; this is not the situation in the case at hand.
Fourth, I have reviewed a December 13, 2011 Canadian House of Commons ruling involving an
incident where an MP’s constituents were the subject of an organized telephone campaign survey
that, in the view of the MP, negatively affected his reputation. I have also reviewed a March 6,
2012 Canadian House of Commons ruling dealing with an incident in which an MP’s office was
inundated with telephone calls, emails and faxes that, in the view of the MP, hindered him and his
staff from serving his constituents and that prevented constituents from contacting him in a timely
manner. In both cases, Speaker Scheer ruled that a prima facie case of privilege was not
established because the MP had been able to perform his parliamentary duties.
For these reasons, a prima facie case of privilege has not been established.
That being said, I have considerable sympathy for the difficult spot that the Member for Burlington found
herself in last week. Like other Members, I have no doubt that she strives to serve her constituents to the
best of her ability, regardless of how they contact her. Although I cannot prevent an outside organization
from using automated technology to facilitate constituents’ contact with their Member, I would encourage
Members and parties to disassociate themselves from any technology-based communication that is
inspired by a political calculus that detracts from civil discourse on public business, just as I would
discourage any member from crossing into another’s riding by any means for the express purpose of
discrediting that member. In other words, take the high road.
I thank the Member for Burlington, the Government Member for Renfrew–Nipissing–Pembroke, and the Member for Cambridge for speaking to this matter.
And they did all this on your dime. Painfull.
