McKenna turns the robocalls incident into a question of personal privilege – asks Speaker of Legislature to rule.

By Pepper Parr

BURLINGTON, ON  April 27, 2012  You are not going to believe what follows and I doubt very much that you are going to read all of what follows either – it is more than 4350 words long, but we publish the comments made by Burlington MPP Jane McKenna  at Queen`s Park, the home of the Provincial Legislature.

McKenna stood in the Legislature on “a point of personal privilege” which is the way members of the Legislature talk about the government preventing them from doing what they were elected to do.  It is an old and very honourable tradition.

The Speaker of the Legislature can rule immediately and declare that a member`s privileges were intruded upon or the Speaker can rule at a later date.

If you choose to read the whole debate – and it does get tiresome – you will learn that McKenna was complaining about the now 1500 robocalls that were made to her office.  That number seems kind of high given that just 2000 robocalls were made by the Liberal Party of Ontario, but I guess a small fib is acceptable in the Legislature.

You will not believe what the people at Queen`s Park do on your dime.  And we elected them.  Mercy!

It begins:

The Speaker (Hon. Dave Levac): Yesterday, I made reference to hearing a point of privilege from the member from Burlington. I am prepared to hear that point of privilege today. The member from Burlington.

Mrs. Jane McKenna: I rise on a point of personal privilege. I provided you with the appropriate notice, and I will proceed—can I proceed?

In accordance with standing order 21(c), I would like to bring your attention to a point of privilege. Since Monday, April 16, robocalls have been placed to my riding. As a result, my office has been inundated with over 1,500 phone calls to my office.

I raise this issue with you not only because it involves a breach of my privileges, but rather because this point of privilege is about the need to preserve the privileges of all members. I feel for this reason that this is a matter worthy of serious consideration.

First, I will provide you with a brief background of the issue at hand and will then discuss a parliamentary precedent that supports me.

On April 16, 2012, I was notified that robocalls were being sent to my constituents by the Ontario Liberal Party. Callers were informed that I was being told to vote against the budget. They were told that a vote against the budget would force a needless election, and they were told that a vote against the budget would put funding for Joseph Brant Hospital in jeopardy.

I have forwarded to you a copy of the script that appeared in the Thursday, April 19, 2012, edition of the Hamilton Spectator.

In the course of the recording, my constituents were instructed to press 3 on their keypad to be directed to my office.

I recognize and do not dispute that I must serve my constituents and address any concerns that may come up regarding my riding. However, the issue at hand is that due to the inaccurate and fear mongering statements that are being sent to constituents, I have now had to focus on the 1,500 phone calls. As a result, my privileges as a member of this Legislature have been infringed, and I have not been able to perform all of my duties as MPP.

One duty that an MPP is required to do is to provide assistance to constituents on any provincial matter, which I will refer to as “casework” throughout the rest of my submission.

Casework consists of assisting people with issues that they may be having with ODSP, welfare or something as simple as helping them with a driver’s licence or health card replacement.

However, due to these calls, my voicemail was regularly at capacity, which has provided constituents with difficulty in reaching their member for assistance. In addition, these phone calls have tied up my phone lines throughout business hours, impacting those who use their services most: ODSP recipients, seniors, welfare recipients and those seeking unemployment help.

This campaign has severed my connections with those residents, which severely limits my ability to serve Burlingtonians. Not only have these robocalls tied up my phone lines, but they have prevented me from following up with ministry officials and from working on pre-existing casework.

It concerns me greatly that partisan robocalls are tying up non-partisan resources and ultimately preventing me from representing my constituents to my greatest ability. Legislative phone numbers should not be used in partisan campaigns.

The most cited definition of parliamentary privilege can be found in the 23rd edition of Erskine May, which defines parliamentary privilege as “the sum of the peculiar rights enjoyed by each House collectively … and by members of each House individually, without which they could not discharge their functions….”

Furthermore, O’Brien and Bosc break down the peculiar rights as the rights members share collectively and the rights each individual member has. In particular, I draw your attention to a member’s right to be free from obstruction, interference, intimidation and molestation. Because these calls get redirected to my office, they obstruct and interfere with part of my parliamentary duties and thus constitute a prima facie breach of privilege.

O’Brien and Bosc also state that “the unjust damaging of a member’s good name might be seen as constituting an obstruction if the member is prevented from performing his or her parliamentary functions.”

They illustrate this using a ruling from former House of Commons Speaker the Honourable John Fraser. In his 1987 ruling, Speaker Fraser stated that “the privileges of a member are violated by any action which might impede him or her in the fulfilment of his or her duties and functions. It is obvious that the unjust damaging of a reputation could constitute such an impediment.”

I pride myself on representing my constituents and being able to help them when they need assistance. As a result of the robocalls tying up my office phone lines, I have received numerous complaints regarding the service that I provide, which ultimately has damaged my reputation as an accessible MPP. It troubles me that due to these robocalls, some of my constituents feel that I am inaccessible as an MPP. This is not a reputation that any MPP on any side of the Legislature would want to have.

Lastly, O’Brien and Bosc quote a May 6, 1985, ruling from former Speaker of the House of Commons the Honourable John Bosley, which is very pertinent to this case. The ruling states: “Any action which impedes or tends to impede a member in the discharge of his duties is a breach of privilege.”

I am certain that the government will provide you with the ruling from Speaker Jeanne Sauvé, which stated, “While I am only too aware of the multiple responsibilities, duties, and also the work the member has to do relating to his constituency, as Speaker I am required to consider only those matters which affect the member’s parliamentary work.”

However, I will suggest to you that getting information for our constituents from ministers and ministries and assisting our constituents relating to problems with Ontario’s programs is a significant part of our parliamentary work, and is very much of our parliamentary work. Casework does not only occur when we are in our ridings. Many times we are required to do it while at the Legislature and at Queen’s Park. If you rule that casework is not a part of our parliamentary privileges, you would be saying that casework is only a courtesy to our constituents, as opposed to being one of our duties as provincial parliamentarians.

Mr. Speaker, in conclusion, MPPs’ functions are not limited to the Legislature. It is imperative that we remember that our role as a parliamentarian is not limited to the Legislature, and that we are required to assist our constituents’ needs. This is why I urge you to look into this issue.

My ability to serve my constituents has been hindered as a result of my privileges being impeded. It has been impeded both by my inability to assist them, to focus on these phone calls, and, more importantly, because my reputation as an accessible MPP has been damaged due to these robocalls.

Should you rule that this case is a breach of members’ privileges, I am prepared to move the appropriate motion to send this case to the Standing Committee on the Legislative Assembly.

I thank you for looking into this. If you have any questions, please do not hesitate to contact me. Thank you, Mr. Speaker, for your time. I look forward to your ruling on this serious matter.

The Speaker (Hon. Dave Levac): Further comments?

Hon. John Milloy: I rise to respond to the point of privilege that the member from Burlington has raised in the House.

This morning, I received notice from the member and a copy of a letter that she sent to you. In her letter, the member from Burlington states—and she’s just outlined—that since April 16, her constituency office has been inundated with calls from individuals from her riding. The member further states in her submission that it’s her belief that the large volume of calls being received by her constituency office are a result of robocalls, which she alleges have been placed by the Ontario Liberal Party to her constituents, advising that the member was being told to vote against the budget, which would force an election and jeopardize funding for a hospital in her riding.

As a result of the calls into her constituency office regarding her vote on the budget today, the member believes she has been unable to conduct casework in her constituency office. As I say, she has obviously just finished her presentation on this matter.

I would like to first point out that the member herself acknowledges that members’ privileges do not extend to constituency work. I agree with the member, and point the Speaker to O’Brien and Bosc. At page 61, O’Brien and Bosc states, “The privileges of members of the House of Commons provide the absolute immunity they require to perform their parliamentary work….”

O’Brien and Bosc elaborates on this principle, at page 109: “In order to find a prima facie breach of privilege, the Speaker must be satisfied that there is evidence to support the member’s claim that he or she has been impeded in the performance of his or her parliamentary functions and that the matter is directly related to a proceeding in Parliament….While frequently noting that members raising such matters have legitimate grievances, Speakers have consistently concluded that members have not been prevented from carrying out their parliamentary duties.”

Speaker, I suggest that the member has not shown that her privileges have been breached. First, the member has not pointed to any parliamentary work which she has been precluded from performing as a result of the alleged robocalls; rather, the member’s complaints related entirely to the performance of casework in her constituency office. To my knowledge, the member has continued to be able to perform all of her parliamentary work and has not provided any evidence in her letter or otherwise to the contrary.

Secondly, the member has merely laid out allegations that she has been hindered in her ability to conduct constituency casework. The member has not provided any evidence to show that this is in fact the case.

Finally, Speaker, I’d like to point you to a recent decision from Speaker Scheer in the House of Commons which involves similar circumstances. You may recall that in this instance, the MP from Mount Royal argued that robocalls hindered his ability to perform his duties as an MP. In that case, Speaker Scheer found that no breach of privilege had occurred. On December 13, 2011, Speaker Scheer ruled on this issue, arguing that although the member’s constituency office had been bombarded by telephone calls, emails and faxes, the Speaker had “great difficulty in concluding that the member has been unable to carry out his parliamentary duties as a result of these tactics.”

Once again, Mr. Speaker, having reviewed the presentation that has been made and the material that was submitted, I would argue that this does not constitute a breach of privilege. Thank you.

The Speaker (Hon. Dave Levac): Further comments?

Ms. Cheri DiNovo: It is indeed a privilege to be able to comment on the member’s point of personal privilege and her privileges as a member. I am afraid, however, that I would have to side with the government House leader on this one. Certainly, one would want to comment that such a campaign done by a sitting government is egregious and certainly deserves comment. However, I would have to agree with the government House leader that it is not an abuse of privilege for the reasons he stated, because privilege has to do with the member’s capacity to do her job in this place. Were it not so, one could imagine that the huge volumes of email campaigns that are undertaken by constituents for a variety of reasons, the huge volumes of calls that, again, are undertaken by various stakeholder groups, many of them partisan in nature, would also have to be ruled against.

So that is my input, and I hope it helps.

The Speaker (Hon. Dave Levac): The member from Simcoe–Grey.

Mr. Jim Wilson: I certainly agree with some of the comments from the member from Parkdale–High Park when she said it’s—I’m going to change her language and say it’s reprehensible that the member from Burlington’s riding would be targeted. I know the member for Cambridge was also targeted, and I think out Oakville way and Halton, as far as we can tell anyway, Mr. Speaker, with these robocalls, which clearly the government instigated because, when we first brought it up in the House, the Minister of Health knew all about it. She had done a tour of the hospital, aware the robocalls were going on at very the time she was touring the hospital. She was using the exact language in the press conference that she had at the hospital in Burlington, the exact language that the robocall was using. The minister didn’t deny it in two or three rounds of questions in this House. So clearly it comes from the government.

Just in response—because we’re going to ask you to set new ground on this, Mr. Speaker. It’s nice that we always cite old precedents, but we’re in the Internet age; we’re in an advanced technology age. Surely to goodness the ruling shouldn’t be just confined to something that happens in this building. Surely to God, as the honourable member says in her very articulate letter and presentation, our casework is in our constituency offices. It is wherever you are, folks, nowadays with a BlackBerry on your hip or a tablet in your hand. To say that casework can only happen up in my office, 201 north wing, or sitting right here—by the way, we discourage people from tapping away in here, and we are not allowed laptops, so it’s hard to respond to your constituents and do your casework in this House. I think we’re going to ask for a broader definition of what actually are the duties of a parliamentarian, because I know that’s what has been cited by the honourable House leader for the government.

Secondly, Mr. Speaker, the House leader, as I was listening, said that the breach of privilege has to stem from a procedure in this House, in this Parliament. Well, the procedure in this Parliament that all of this refers to is the upcoming budget vote. That is a procedure in this Parliament, so I think that’s relevant, and I would ask you to take that into consideration.

Surely to goodness, as I said, we would ask that we expand our horizon on this thing and not cite things that happened a hundred years ago. We’re in the high-tech age, and I know all of our colleagues in this House work darned hard almost 24/7. Certainly, when we’re at home and when we’re in our apartments at night, we’re doing casework, we’re doing our parliamentary work, and that should be considered in this case, Mr. Speaker.

The Speaker (Hon. Dave Levac): Thank you. Further comment?

Just a technical reminder; this is probably not the time to say it, but I need to say it because it really drives them nuts. When you turn away from the microphone, it’s very difficult for them to pick it up. So I would remind all members to please face your microphone so that Hansard can make sure that we pick it up.

The second thing I’d like to mention is, if we’re going to continue, I would like you to be brief, if there’s anything new to add to it. I’m getting a sense of where this point of privilege is going, so try to be brief, please.

The member for Renfrew–Nipissing–Pembroke.

Mr. John Yakabuski: Yes, Speaker. Can you hear me? Just kidding. Thank you very much, Speaker.

First of all, I want to thank my colleague from Burlington, Ms. McKenna, for raising this point of privilege. I think it’s vital that she stand, as is her right as a member, to challenge actions on the part of the government.

I know that my colleague our House leader from Simcoe–Grey has articulated some of the points. I want to be very clear about one thing: I believe she has made a prima facie case, as she cited precedents in the past with regard to a member’s work and the vital work they do. I want to make it very clear, when the House leader uses the term “alleges”—Speaker, we have basically received an admission from the Minister of Health that they are aware and knowledgeable about the content of those robocalls.

It was not simply about a budget. Yes, it was precipitated by the budget vote, and they used that as their reason for making those calls. But she went on to say—unlike, as cited by my colleague from Parkdale–High Park, where people get involved in an email campaign, which is generally orchestrated by a third party not involved in the governing of this province, this was a robocall campaign about the budget and the member from Burlington that was orchestrated and initiated right in this House, in the offices of the Minister of Health. This is why her privileges have been violated.

A part of that robocall was not the suggestion that, “If you feel this way, you may want to contact the member.” No. It was well orchestrated: “Simply push 3 and you’ll be connected.” It was very well organized and orchestrated and was designed specifically to impugn the right of that member to do their job. Everyone here who has a busy constituency knows—

Interjections.

The Speaker (Hon. Dave Levac): This is an extremely important and serious issue, and the bantering back and forth is not helping me focus on the points being made. I ask all members to give everyone the respect they deserve in hearing this.

Member, continue, but be brief, please.

Mr. John Yakabuski: Her ability to do her work was clearly impugned by the actions of the government. Therefore, I say that in my humble opinion, Mr. Speaker, and as the member has in my opinion also duly indicated by citing precedents from O’Brien and Bosc and others, her privileges as a member of this assembly were indeed trod upon by this government.

The Speaker (Hon. Dave Levac): The member for Cambridge.

Mr. Rob Leone: I’m pleased to speak in support of my colleague the member for Burlington’s point of privilege. I also was going to raise a point of privilege on this matter, but I thought, to save some time, that I would just support the member for Burlington’s point of privilege.

I do want to address a couple of points that were made in the comments and commentary from people who have had the ability to speak on this already. I think one of the issues that was raised was preventing an MPP from performing his or her functions as an MPP. I can tell you, Mr. Speaker, that I actually have gotten calls here in my Queen’s Park office. I have actually fielded those calls myself. I’m not sure if Ms. McKenna has done the same thing in her office, but it’s just a courtesy to relieve some of the stress our staff are being put under. In the process of doing that, I think our functions have been impeded, because we had to spend some time doing that.

One of the other things I wanted to mention with particular reference to the nature of the robocalls is the fact that these robocalls had inaccurate and fearmongering information and statements that were expressed. If you get a phone call from constituents who have an issue and it’s based on what you’ve done in this House, you can explain that away. But if you are trying to correct misinformation, to correct allegations that you are somehow not supporting the hospital, in the case of Ms. McKenna and myself, in our ridings, if we’re spending time trying to correct a record which has not explicitly been based on fact and what has happened in the Legislature—I think that is one of the most troubling things of the robocalls: the fact that they are spreading misleading and fearmongering information.

If I can just be very brief in terms of what that record is, Mr. Speaker, let me just say that since I have been elected in October, I had the privilege of raising the first private member’s business in this House. That private member’s resolution stated an expressed vote on hospital infrastructure projects right across the province of Ontario, including mine—Cambridge Memorial Hospital—which was actually voted on in this Legislature. I have to say that the voting record will show that members of my party—Ms. McKenna from Burlington, myself and the members of the PC caucus—and all members of the NDP caucus voted in support of that motion, an explicit vote in support of our hospital expansions and those projects in our ridings. That is fact. That is based on what we have done, the conduct of what we’ve done in this place. The words that we’ve said, the statements that we’ve made, on record, in Hansard, show and express support on the part of myself, the member for Burlington and other members for their hospital expansion projects.

Now, the allegations being made on the robocalls, Mr. Speaker, actually were included in the member for Burlington’s letter, I believe. There was a transcript that was provided to the Hamilton Spectator. Included in that transcript was an affiliation to the Liberal Party of Ontario.

Also, I want to address the fact that the government House leader said that these are allegations of robocalls being placed on behalf of the Liberal Party. It’s not just the Minister of Health who essentially agreed to it, but it was also the Minister of Finance, during question period last Tuesday, who basically agreed to the fact that they are going to continue to place phone calls in opposition ridings to—in my view—distort the facts and distort the record that we have had on this.

The allegations made and the reason why I believe they’re inaccurate statements that we have to address, that we have to contend and compete with, relate to the fact that they’re equating the budget vote with a vote against our hospital expansions. As I have endeavoured to discover and explore that very notion, Mr. Speaker, the only way that this budget could affect a hospital project is if it’s specifically negated in the budget document.

On page 40 of the budget document, what we see are some projects being negated, none of which include Cambridge Memorial Hospital, in my case, and Joseph Brant Memorial Hospital, in the case of the member from Burlington. So in essence, a vote against this budget is not a vote against Cambridge Memorial Hospital because it hasn’t specifically been negated. This comes from information that we’ve received from the legislative research branch. This is where we’ve discussed and discovered the protocols with respect to what happens during budget votes.

Again, these robocalls were deliberately trying to confuse the voting record and the specific support that myself and Ms. McKenna have had for our hospital infrastructure projects. I want you to take that into consideration because it’s in the nature of responding to the phone calls that we’re having to correct the misinformation that’s being spread about what we’ve done. I think that if we do engage in these campaigns, we should be focusing on the correct voting record and the correct statements that we’ve made. In essence, that’s what we find in Hansard.

I also want to point to some parliamentary precedent that would also be important, I think, in this case, Mr. Speaker. In 2009, NDP MP Peter Stoffer raised a point of privilege in the federal Parliament concerning a mail-out known as a ten-percenter which went to his riding. The ten-percenter said that Mr. Stoffer was in favour of keeping the gun registry. Mr. Stoffer had opposed the gun registry since being elected. Former Speaker of the House of Commons the Honourable Peter Milliken ruled that a prima facie breach of privilege occurred because the mailing sent to his constituents “did distort their member’s true position … and, at the very least, had the potential to create confusion in their minds.

“It may also have had the effect of unjustly damaging his reputation and his credibility with the voters of his riding and, as such, infringing on his privileges by affecting his ability to function as a member.”

I think the member for Burlington and myself would argue that our reputations have been unjustly attacked in the minds of our voters and the people who have received these robocalls.

Once again, Mr. Speaker, a similar case occurred in 2005, when NDP MP Brian Masse also had a ten-percenter sent to his riding that was inaccurate and was wrong about his position on the gun registry, funding for the RCMP, and also his voting record. Speaker Milliken had ruled that a prima facie breach of privilege occurred and “his ability to function as a member of the House has been interfered with.”

Mr. Speaker, I would like to add those cases of precedent to your deliberations on this matter.

Once again, I want to offer my wholehearted support to the member for Burlington on her point of privilege, because I feel unjustly affected by these robocalls as well. Thank you.

The Speaker (Hon. Dave Levac): First let me thank the member from Burlington for making her point as thorough as she did, and I thank all the members who made comment on this case. I’ll reserve my ruling and report back to the House as quickly as possible. Thank you so much for this important discussion.

Can you beleive it?