The sub judice convention is a constraint imposed by Parliament on itself
to ensure a reasonable balance between free speech for parliamentarians
and fair trials for accused persons. In this article the author argues
that the sub judice convention is commonly misunderstood. Many believe the
rule is you cant talk about any matter that is before the courts. This
article argues that is too broad an interpretation. When used in this way,
the sub judice convention has a tendency to suppress parliamentary debate,
even when there is not the remotest possibility that the fairness of a
trial will be impaired. The author gives a number of examples of the proper
and improper use of the convention and calls for a more balanced approach
to reconciling free speech and fair trials.
The convention in Commonwealth parliaments that some restriction needs
to be placed on the discussion of matters that are before the courts
is known as the sub judice convention. The purpose of the convention is
to balance freedom of speech in parliament and fair trials. Both are important
values. Neither can be permitted entirely to trump the other. There are
six principal reasons why parliament must not permit the sub judice convention
to drift into an over-broad, automatic restriction on parliamentary debate.
First, parliamentary sovereignty must be assiduously protected. The rights
of Westminster parliaments have been achieved over centuries. They should
not lightly be given away. Parliaments must not defer automatically to
Second, the purpose of parliamentary debate is different than the purpose
of judicial proceedings. The purpose of a police investigation, for example,
is to determine if criminal charges should be laid. If charges are laid,
a conviction can be obtained only if there is proof beyond a reasonable
doubt. If a conviction is obtained, punishment is imposed for transgressing
social norms. Parliamentary processes are very different. They are concerned
exclusively with public policy.
Third, there will be many situations where important issues are before
parliament and the courts at the same time. Indeed, the passage of legislation
by Parliament is often deliberately intended to influence the outcome of
Fourth, legal processes can sometimes drag on for years, and can be inconclusive.
Parliament should be loathe to adopt any rule that may have the effect
of stifling debate for an indeterminate period.
Fifth, there are usually less drastic measures that will permit debate
to continue, while ensuring that a trial is not prejudiced.
Finally, it is difficult to find any reported instances where speech in
parliament has demonstrably affected a judicial proceeding. We should perhaps
be cautious about over-using the sub judice convention if the actual threat
to judicial proceedings is so rare.
What the sub judice convention is not
A useful starting-point is to delineate what the sub judice convention is
not. I can think of several reasons why a parliamentarian may want to decline
comment about a case before the courts. In each case, the reason may be
expressed as The matter is before the courts, so I cannot comment...
Each is legitimate, but none must be permitted to shut down parliamentary
Here are the some reasons, other than the sub judice convention, why a person
may decline to comment:
There is the strategic limitation that parties to lawsuits impose upon
themselves. A public statement may tip the partys hand about litigation
strategy, evidence, settlement strategy or negotiations, or witnesses.
Sometimes it is wiser to be silent. This is a strategic choice, imposed
by parties upon themselves. It has no bearing on whether parliamentary
debate should be allowed. It simply means that, if there is a debate, one
side (usually the government) chooses not to participate in the debate.
There is the ethical obligation of lawyers to their clients. In Canada,
this obligation is typically found in a self-governing law societys Code
of Ethics. Lawyers are duty-bound not to make public statements without
the consent of their client. This is a matter between a lawyer and the
client. It has no bearing on whether parliamentary debate should be allowed.
There is the ethical obligation of lawyers to the courts. Again, this obligation
is typically found in a law societys Code of Ethics. It was not too long
ago that most lawyers would routinely decline any comment outside a courtroom.
The idea was that lawyers owed it to the court to present their evidence
and make their arguments in court. It was thought disrespectful, and beneath
the dignity of the judicial process, for a lawyer to say anything to the
media outside a courtroom. Over time, these ethical restrictions have been
loosened. It is now common to see lawyers speaking to the media. However,
they are still operating under an ethical obligation to be fair and accurate
and respectful of the court. This restriction is an ethical obligation
of lawyers to uphold respect for the administration of justice. It has
no bearing on whether parliamentary debate should be allowed.
There is the parliamentary convention that no government minister can be
compelled to answer a question. This parliamentary right to remain silent
applies at all times and to all topics, regardless of whether a matter
is before the courts. It has no bearing on whether parliamentary debate
should be allowed.
There is the practical limitation that other processes may be better suited
than parliament to get the facts. It is quite common for a matter of public
interest to be subject to a police investigation, a public inquiry, an
internal inquiry, or an audit, or any combination of these things. My experience
tells me that these processes are usually better at finding the facts than
a parliamentary committee, although each has a different purpose, different
tools, and different time-lines. Sometimes parliament may believe that
its own inquiries and debates will be more effective if it waits for these
other processes to finish, or at least to be well underway. But this is
a counsel of caution. It has no bearing on whether parliamentary debate
should be allowed.
There is the legal right against self-incrimination. Section 11(c) of the
Charter of Rights says that a person charged with an offence has the
right not to be compelled to be a witness in proceedings against that
person in respect of the offence. Section 13 says that a witness has
the right not to have any incriminating evidence so given used to incriminate
that witness in any other proceedings. Neither of these is grounds for
a person to refuse to speak in parliament (in the case of a member) or
to parliament (in the case of a witness before a committee). Even without
Charter protection, parliamentary immunity and parliamentary privilege
ensure that anything said in parliament cannot be used in any other proceeding.
The right against self-incrimination therefore has no bearing on whether
parliamentary debate should be allowed.
There is protection of privacy legislation, which (among other things)
prevents Cabinet ministers from discussing individual cases in public.
When parliamentarians are motivated by any of these reasons, they may appear
to be invoking the sub judice convention, or may actually think they are
doing so, saying I cannot speak about a matter that is before the courts.
But we must be careful not to let the ideas be confused. What the member
may really be saying is I do not wish to speak about this matter. That
is a different thing entirely.
What is the Convention
Any discussion of the sub judice convention in Canada has to start with
the first report of the House of Commons Special Committee on the Rights
and Immunities of Members in 1977.2 Thirty years later, it is still the
best and most thoughtful Canadian examination of the topic.
Most of the Special Committee report is taken up with a close examination
of the precedents. The Special Committees substantive findings are in
paragraphs 21-24. They can be summarized as follows:
The justification for the convention has not been established beyond all
doubt. The House should not be unduly fettered by a convention the basis
of which is uncertain. (Paragraph 22)
The only possible rationale for the sub judice convention is prevention
of prejudice to a judicial proceeding. (Paragraph 21)
Judges are highly unlikely to be swayed by what is said in Parliament.
The convention is therefore concerned with the protection of juries and
witnesses from undue influences. (Paragraph 21)
Prejudice is most likely to occur in criminal cases and civil cases of
defamation where juries are involved. (Paragraph 24)
The convention is definitely not a rule. (Paragraph 22)
Parliament should not be any more limited in its debates concerning judicial
proceedings than is the press in reporting such proceedings. (Paragraph
All members should be expected to exercise discretion in cases where there
might be prejudice to a judicial proceeding. During Question Period, the
Speakers role should be minimal, and the responsibility to show restraint
should principally rest on the member asking the question and the minister
answering it. (Paragraph 23)
It would be unwise to attempt to define precise rules about how the convention
should be applied. (Paragraph 24)
The Speaker should remain the final arbiter, but he should only exercise
his discretion in exceptional cases where it is clear to him that to do
otherwise could be harmful to specific individuals. (Paragraph 24)
Where there is doubt in the mind of the Chair, a presumption should exist
in favour of allowing debate and against the application of the convention.
In my view, the Special Committees recommendations are, thirty years later,
still wise and useful. They should continue to form the basis for any application
of the sub judice convention in Canada.
At least one Canadian parliament has attempted to codify the sub judice
convention in its Standing Orders. In Ontario, Standing Order 23(g) reads
In debate, a member shall be called to order by the Speaker if he or she:
(g) Refers to any matter that is the subject of a proceeding
(i) that is pending in a court or before a judge for judicial determination,
(ii) that is before any quasi-judicial body constituted by the House or
by or under the authority of an Act of the Legislature,
Where it is shown to the satisfaction of the Speaker that further reference
would create a real and substantial danger of prejudice to the proceeding.
Regardless of whether sub judice is an unwritten convention or codified
in the Standing Orders, a parliamentary presiding officer who adopts the
Special Committees principles is still left to ponder when, exactly, there
is a clear risk of prejudice to a judicial proceeding. Often, this judgment
has to be made without notice and in the heat of debate. In these circumstances,
there is a natural tendency to play it safe and rule the question or
comment out of order. Better safe than sorry, right?
Maybe not. Playing it safe means that the balance between free parliamentary
speech and fair trials is unfairly tilted in one direction. This is contrary
to the advice of the Special Committee, which recommended that doubtful
cases be resolved in favour of free speech. It is also unnecessary, because
there is good, practical guidance available the law on contempt of court.
Parliamentary Immunity and Contempt of Court
Surely, the best judges of when a judicial proceeding might be prejudiced
are judges themselves. And the principal tool used by judges themselves
to prevent prejudice and ensure the fairness of trials is contempt of
court. There is a substantial body of law dealing with contempt of court.
It is there that parliamentary presiding officers can look for guidance.
Before getting into the detail of contempt of court, I should deal with
the obvious objection: Why should parliamentarians pay any attention to
contempt of court? Are not parliamentarians absolutely immune from any
criminal or civil proceedings, including contempt of court, arising from
their speeches in parliament?
In fact a parliamentarian has no immunity from arrest for a criminal contempt
or for any crime; however, this does not mean that there can be contempt,
criminal or otherwise, for words spoken in parliament.
Joseph Maingot has the following passages in the chapter Privilege of
Freedom of Speech:
In 1858, while dealing with a controverted election matter in Lower Canada,
Badgley J. observed that the sitting Member, Bellingham (who had in a written
document made charges of personal corruption against the judge) should
have restricted his abuse to the floor of Parliament or of the Committee
While dealing with a matter of contempt of court, the Superior Court of
Quebec confirmed that whatever is said in debate is protected by parliamentary
immunity and cannot be made the subject matter of any proceedings before
This latter passage is about a case where a federal Cabinet minister harshly
criticized a judge, after the ministers department lost a prosecution
under the Combines Investigation Act. The minister was found in contempt
of court for his remarks. The remarks were made to the press in the House
of Commons lobby adjacent to the chamber. The judge stated as follows:
... it is common ground that anything spoken in the Chamber of the House
of Commons itself cannot be made the subject-matter of any proceedings
before the Courts.
Bearing in mind that the absolute privilege attaches
only to a proceeding in Parliament, it would seem to me almost self-evident
on the authorities that I have quoted above that it would not extend to
declarations made to members of the press in answer to questions, in a
place used for the purpose and physically removed from the floor of the
The decision was confirmed by the Quebec Court of Appeal.5
The central argument of this paper is that if the courts cannot reach into
parliament to protect the fairness of a trial, then the sub judice convention
should be applied when comments in parliament would be subject to proceedings
for contempt if those comments had been made outside the chamber.
The sub judice convention becomes a principled parliamentary courtesy to
the courts. In other words, it is a parliamentary counterpart to contempt
of court, but interpreted and applied by parliamentarians.
Contempt of Court
Contempt of court is part of the courts inherent jurisdiction to manage
its own proceedings. Anyone whose behaviour, inside or outside a courtroom,
threatens the fairness of a trial runs the risk of being punished for contempt.
A person found in contempt can be fined or even jailed.
Contempt of court is the only common-law crime in Canada. That means
it is not codified in the Criminal Code, and its scope is determined solely
by reference to past usage and present needs. It is administered directly
by the court, rather than through the police and prosecutors. The common-law
character of contempt adds a layer of uncertainty to the question of what,
exactly, constitutes contempt.
An added difficulty for parliamentarians is that there are very few precedents
dealing with contempt proceedings against parliamentarians, or even of
cases where a judge has expressed concern about parliamentary comments.
For guidance, we need to look elsewhere.
Fortunately, the 1977 Special Committee has offered a useful and interesting
analogy for us to follow:
...On no account should the convention, which has been applied infrequently
in years past, come to be regarded as a fixed and binding rule. It is not
reasonable, for example, that Parliament should be any more limited in
its debates concerning judicial proceedings than is the press in reporting
Like the Special Committee, I believe we have much to learn from journalists
on the question of sub judice. Journalists face the same sub judice questions
as parliamentarians, but much more often, since they are writing and broadcasting
daily about court proceedings. The sheer volume means that there are many
more examples of contempt proceedings against journalists and media outlets.
The more precedents we have, the more guidance we have.
The question of the constraints under which journalists are working has
been dealt with thoroughly and articulately in a recent book by Professor
Although it is impossible to lay down a complete list of rules about contempt
of court, because of its unique common-law nature, some general principles
can be taken from the precedents:
The courts power to punish for contempt is designed to keep the streams
of justice clear and pure, that parties may proceed with safety both to
themselves and their characters.
Contempt can take a number of forms, including creating prejudice to one
of the parties (usually the defendant in a criminal proceeding), causing
undue delay or expense, or creating an appearance of substantial unfairness.
To be contemptuous, a publication must present a real risk, as opposed
to a mere possibility of interference with the administration of justice.
In the words of Britains House of Lords, the prejudice must be more than
trifling or trivial but less than a certainty. In the same vein, a publication
ban may be imposed only when the information poses a real and substantial
risk to a fair trial, and judges must limit the scope of the ban to ensure
that the public receives as much information about the case as possible.
Because contempt is a common-law crime, each jurisdiction will have its
own standards. Thus certain actions might be found contemptuous in Alberta,
but not in Ontario; and in Ontario, but not in Nova Scotia.
- When considering whether there has been a contempt, all of the surrounding
circumstances must be considered.
- One of the very important factors is timing: the closer a trial, or selection
of a jury, the more likely there is to be prejudice. If a trial is years
or even months away, there is no realistic chance of prejudice. If the
trial is underway, prejudice is more likely.
- Other factors relevant to contempt are whether there will be a jury, how
the information is presented (is it sensationalized or balanced), and
what the issues are at trial.
- Some grey areas for reporters include imputing guilt to an accused person,
attacking an accused persons character, reporting on previous convictions,
reporting that there has been a confession, and showing pictures of an
accused if identification is an issue. The common thread is that jurors,
or potential jurors, may be exposed to information that is inadmissible
in court. And this kind of information is inadmissible in court precisely
because it is unfairly prejudicial.
- Violating a publication ban, or identifying a witness or accused whose
identity is protected, is contemptuous.
These, then, are the restrictions under which journalists operate. They
are, in fact, the very same restrictions under which parliamentarians operate
when speaking outside the parliamentary chamber. But what about inside
Some Red Flags for Presiding Officers
The law of contempt that applies to journalists is broadly applicable to
the parliamentary chamber, with a couple of cautions.
No-one expects presiding officers to apply the law of contempt with precision.
The parliamentary chamber is not a courtroom, and presiding officers and
table officers do not have to be lawyers. The law of contempt, like any
other common-law concept, is always evolving. Nevertheless, the broad outlines
of the law on contempt are reasonably clear, and is no more difficult to
apply than the parliamentary law that presiding officers and table officers
apply every sitting day.
There is also the frank reality that parliamentary comments do not, in
themselves, receive wide publicity. Few people attend parliamentary sessions;
Hansard does not have the readership of the local daily newspaper; and
even a live parliamentary TV broadcast does not have the viewership of
the supper-hour newscast or Canadian Idol. To have an impact on a jury
pool, parliamentary comments would have to be reported through the mass
media. But media outlets are already filtering parliamentary comments through
the law of contempt. They will not report anything a politician says that
might be contemptuous, because then they would themselves be liable to
a citation for contempt. So the situations where a speech in parliament
might pose a real and substantial risk of prejudice dwindles to those rare
cases where the parliamentarian might say something that is prejudicial
if anyone knows it, such as the identity of an accused or victim whose
identity is subject to a publication ban.
With these cautions, we are now ready to list the red flags for which
a parliamentary presiding officer might look. In none of these cases should
it be automatic that the member is ruled out of order. These red flags
are merely signs that the risk is increasing. Nor should the list be considered
exhaustive. In any given case, all of the circumstances must be considered.
The red flags include:
- A trial is imminent, or underway, and it involves a jury. Timing is perhaps
the most critical factor when considering prejudice.
- The member remarks on the personal characteristics of a judge who is hearing
a case, or on the judges handling of a specific case that is not concluded.
- The member attributes guilt to a named criminal defendant whose trial has
not concluded, or comments on the character (including citing previous
convictions) of a person who is being tried.
- The member advocates a particular result in a specific case, which has
not yet been concluded.
- The member starts to reveal information that is not in the public domain,
such as information subject to a public ban, or information about a closed
hearing, or the identity of a suspect who has not been charged.
- The member starts to make remarks that could be construed as intimidating
to witnesses or potential witnesses.
- The member refers to a judicial proceeding in which that member, or some
other member, is personally involved.
Green flags for presiding officers
There are other situations where there is, realistically, little or no
risk of prejudice to a judicial proceeding. I will call these green flags,
because members should normally be permitted to proceed. But, as with red
flags, in none of these cases should it be assumed that the sub judice
convention cannot apply. These green flags are merely signs that the
risk of prejudice is minimal. Nor should the list be considered exhaustive.
In any given case, all of the circumstances must be considered.
The Investigation Stage: It is sometimes suggested that parliament should
not deal with matters that are the subject of a police investigation. (This
must, of course, be carefully distinguished from the common procedure of
the police not to comment on their investigations, on the grounds that
the investigation may be compromised by premature public disclosures. This
police procedure is not itself a reason to curtail debate in parliament).
While that may be a wise counsel of caution, applying the
sub judice convention
at the investigatory stage will almost always be unwarranted. (This must,
of course, be carefully distinguished from the right of Ministers of the
Crown to refuse, in parliament, to confirm or deny whether an investigation
is underway, or to confirm or deny that a particular person is being investigated.
A government policy of non-comment is sound public policy, but it is not
in itself a reason to curtail debate in parliament).
The fundamental reason is that there is, by definition, no judicial proceeding,
and there may never be. The only judicial involvement is peripheral, such
as approving an application for a search warrant. There cannot be a real
and substantial risk of prejudice to a judicial proceeding if there is
not, in fact, a judicial proceeding.
Police investigations, in themselves, may be an important public-policy
issue. The fact that an investigation is being undertaken (or not), or
that a particular person is being investigated (or not), can surely be
a subject of legitimate comment in parliament. No person involved in judicial
proceedings, whether it is the judge, prosecutor, sheriff, police, or otherwise,
can be held to be above comment or criticism.
There are a number of other reasons why parliamentarians should be loathe
to cede their right to free expression because of a police investigation:
- We should probably have more faith in our police than to suggest that they
could be diverted from their task by comments in Parliament. Like judges
and prosecutors, Canadian police forces can justifiably be thought to be
made of sterner stuff.
- Investigations can take years. Parliament should be loathe to curtail debate
for an indefinite period.
- An investigation will not necessarily result in charges.
- The police will not always confirm that an investigation is underway. Parliament
should be loathe to curtail debate based on mere speculation about whether
an investigation might be underway.
Nevertheless, it is possible to imagine cases where parliamentary comment
can be shown to pose a real risk of prejudice to an investigation. In an
extreme case, perhaps a parliamentarian would want to take advantage of
parliamentary immunity to reveal something that would be criminal or contemptuous
if revealed outside parliament, such as the contents of a sealed application
for a search warrant, or the existence or identity of an undercover investigator
or confidential informant. It is scarcely imaginable why a parliamentarian
would want to do such a thing, or how it could be relevant to a public-policy
debate. No media outlet would print or broadcast such a revelation, because
publication would leave the media outlet open to sanctions. But it could
happen, and it would be the right time to invoke the sub judice convention,
or something analogous to it.
The Civil Justice System: A civil court is essentially any non-criminal
court. Typically a civil court adjudicates disputes between private parties.
For purposes of the sub judice convention, there are three major differences
between criminal cases and civil cases. All of these differences will tend
to diminish any possible need to invoke the sub judice convention in civil
First, in Canada the vast majority of civil trials are non-jury. We can
therefore leave aside any question of tainting jury pools or juries.
In some provinces a trial for libel or slander will be in front of a jury,
unless the parties agree otherwise. This makes sense, because the essence
of a defamation suit is the effect on the public of the allegedly defamatory
statements. The problem lies in the fact that defamation suits may be used
precisely to stifle public discussion of certain projects. This is the
phenomenon widely known as a SLAPP-suit (strategic lawsuit against public
Parliamentarians ought to be careful not to stifle their own debate, where
part of the plaintiffs purpose in filing the suit is to do precisely that.
The second major difference between criminal and civil cases is that the
vast majority of civil cases never go to trial. Whereas only a tiny fraction
of criminal cases result in withdrawn charges, any civil litigator will
confirm that at least 90% of lawsuits, and probably more like 95%-98%,
are settled or abandoned before trial.
Third, there is often a passage of years between the filing of a suit and
a trial, or between the filing of a suit and its withdrawal or dismissal.
Unlike criminal cases, there is no constitutional guarantee of a right
to a speedy civil trial. Parliament should be loathe to curtail debate
on an issue that may not come to trial for years, if it ever comes to trial
For these reasons, one should expect the
sub judice convention to be invoked
much more rarely in civil cases than criminal cases. Even in the exceptionally
rare cases where there will be a civil jury, prejudice need not be seriously
considered (just like in criminal trials) until the trial is imminent or
underway. A typical trigger is when the case is set down for trial.
This is the point at which the plaintiff formally signals readiness for
trial. Setting a matter down for trial makes it more likely, though still
far from certain, that a trial will actually be held.
Royal Commissions and Public Inquiries There has been some discussion among
the authorities about whether the sub judice convention applies to Royal
Commissions and other forms of public inquiries.
Although older authorities appear divided, the modern consensus appears
to be that the sub judice convention does, in principle, apply to commissions
and inquiries. The key question is whether the parliamentary speech poses
a real and substantial risk of prejudice to the commission or inquiry.
That is the same test applied to proceedings in the regular courts.
We should nevertheless expect that the
sub judice convention would be applied
only rarely to commissions and inquiries. The main reason is that public
inquiries are just that inquiries. They are not judicial proceedings
in which criminal guilt or civil liability is in issue. Their objectives
are different than the courts. Furthermore, public inquiries, by their
very nature, have a public-interest element. One would not wish to exclude
from parliamentary debate, perhaps for years, a public-policy issue that
is important enough to warrant a public inquiry in the first place. Moreover,
the principal concern of the criminal and civil justice systems, which
is the protection of juries from undue influence, is entirely absent from
There may be situations where there is reason to fear the intimidation
of witnesses, or the revealing of information that the inquiry commissioner
has heard in camera or banned from publication. As always, the most principled
approach is to reason by analogy to contempt of court, with due regard
being had to the differences between a regular court and a public inquiry,
such as the absence of a jury.
The Speaker of the U.K. House of Commons has attempted to distinguish between
royal commissions which are concerned with the conduct of particular persons,
and royal commissions dealing with broader issues of national importance.
The sub judice convention would be applied to the former, but not the latter.
I am not persuaded that this distinction is useful, since public inquiries
do not typically fall neatly on one side or the other. A recent public
inquiry in Nova Scotia, for example, arose from a fatal motor vehicle collision
involving a young offender who should have been in custody. The inquiry
report included both a close examination of the facts of the particular
case, and broader recommendations about dealing with youth at risk. On
which side of the sub judice line would this inquiry fall? It is really
impossible to say, and pointless to try.
Appeals: There is some authority, principally in the United Kingdom, for
the proposition that the sub judice convention applies to the appeal stage
of judicial proceedings. The 1977 Special Committee of our House of Commons
did not address the issue directly.
In keeping with the analysis I have been developing, the
sub judice convention
should not apply to appeals, for two reasons.
First, appeals never involve juries, or witnesses, or new evidence. Appeals
are always heard by judges only. Indeed, Courts of Appeal are generally
made up of the best, most experienced judges. In the entire judicial system,
appeal judges are arguably the people least likely to be influenced by
parliamentary comments. So where, exactly, is the real and substantial
risk of prejudice that is supposed to form the basis for invocation of
the sub judice convention? I cannot see it.
Second, appeals can sometimes go on for years, especially if a case goes
to the Court of Appeal or even to the Supreme Court of Canada. One must
wonder whether the right balance has been struck, if parliament restricts
itself for a period of years from talking about a particular topic.
It seems to me much more sensible to end the use of the
sub judice convention
at the point where the evidence-giving phase of the trial has been completed,
or where there is a jury, at the point where the jury is discharged. In
the rare cases where an appeal is successful and a new trial is ordered,
application of the sub judice convention can resume, following the same
principles as before.
Grey flags for Presiding Officers
The administrative justice system is a grey area. It is a vast array of
agencies, boards, commissions and tribunals that have the power to receive
evidence and render decisions affecting citizens rights and liabilities.
Because of the vast number of these decision-making bodies, it is simply
impossible to state any general rules that could sensibly apply to all
of them. Some tribunals are very close to courts in their structure, process
and powers. Others are regulatory or advisory, paid or unpaid, formal or
informal, trained or untrained, staffed or unstaffed.
It is simply not clear how, if at all, the
sub judice convention might apply
to the administrative justice process. No tribunal shares the superior
courts inherent jurisdiction to punish for contempt. Therefore treating
the sub judice convention as a parliamentary extension of the contempt jurisdiction,
for which I have argued in this paper, immediately breaks down.
Some commentators have attempted to deal with the issue by drawing a distinction
between those tribunals which are a court of record, and those which
are not. The sub judice convention would apply to a court of record.
The difficulty here is that court of record is a vague and old-fashioned
term. One cannot look at a given tribunal and know whether it is, or is
not, a court of record. This distinction is not helpful.
Ontario Standing Order 23(g) attempts to draw the same kind of distinction.
It applies to quasi-judicial tribunals. The same criticism can be offered:
The term quasi-judicial is not precise, and is now rather old-fashioned.
It will not always be obvious whether a given tribunal is quasi-judicial.
The most we can say is that the closer a tribunal is to looking like and
acting like a court, the more likely it is to be quasi-judicial.
Despite these difficulties of application in a given case, it seems clear
on the authorities that the sub judice convention should apply to administrative
tribunals, because they are part of the justice system.
Indeed, I would argue that the threat of prejudice may be greater in the
case of an administrative justice proceeding than in a criminal or civil
trial. That is because the independence of judges (in criminal and civil
trials) is constitutionally protected, and reinforced by salary, tenure
and working conditions that practically guarantee insulation from worldly
cares. They also have powerful procedural tools, and the power to punish
Tribunal members, in contrast, typically have much shorter terms of office,
much lower pay, and no power to punish or even reprimand anyone who is
not a party before them. They are appointed by the government, and may
be beholden to the government for their re-appointment, funding, and working
conditions. If anyone is going to be influenced by captious comments in
parliament, it is more likely to be at the tribunal level than in the courts.
On the other hand, there is a vast number of administrative proceedings
at any given time, and over-broad application of the sub judice convention
would render whole areas of public policy beyond parliamentary debate.
We must also bear in mind that most administrative proceedings, and parliamentary
comments about them, will receive no publicity at all; that almost all
administrative proceedings have a public-interest component that renders
them a legitimate topic of interest to parliamentarians; that what is at
stake is not usually as great as in a criminal trial; and that there is
no administrative equivalent to the jury, the protection of which from
unfair influence is a key focus of the sub judice convention.
Procedural Options for Presiding Officers
A presiding officer who sees one of the red flags has a number of procedural
options that may satisfactorily contain the risk, without having to resort
to the drastic remedy of ruling a member out of order.
Certainly a presiding officer will want to start by cautioning the member,
since we can safely presume that no member wishes deliberately to prejudice
a judicial proceeding. Once alerted to the risk, most members will gladly
take the opportunity to re-think or re-phrase their approach to the issue.
Other procedural options, depending on the circumstances, might include
excusing a witness from answering a question or going in camera (in the
case of a committee), or calling for a brief recess in order to have an
informal discussion with the member about his or her intentions. Depending
on the nature of the debate, a presiding officer might also inquire of
the member whether he or she is willing to defer further discussion of
the issue in order to give the presiding officer sufficient time to get
the facts about a particular judicial proceeding.
If a presiding officer hears something that he or she believes poses a
real and substantial risk of prejudice, but has not been able to stop the
member in time, there may be an option of striking the comment from Hansard,
so there is at least no permanent written record of the prejudicial remark.
In order to strike the right balance between free parliamentary speech
and fair trials, it is reasonable to expect that ruling a member out of
order, curtailing all debate, will be the last resort.
Two Recent Examples of
sub judice in Action
Let us now take the principles and guidance and apply them to two cases,
one in Ontario and one in Nova Scotia where the sub judice convention was
In 2006, an Ontario MPP made comments outside the legislature voicing his
very strong opposition to the possibility that a plea-bargain in a specific
criminal case might include a restitution order (that is, the payment of
money by the defendants to the victim). The members essential point, as
I understand it, was that a criminal defendant with money should not be
able to buy a lesser sentence by paying the victim. The member certainly
supported compensation to the victim through other processes, such as criminal
A complaint was then made under the
Members Integrity Act. The complaint
was that the member had violated the sub judice convention, and thereby
fell afoul of the Members Integrity Act. The complaint was upheld by the
Integrity Commissioner in his report dated October 25, 2006, although he
recommended that no penalty be imposed. This recommendation was endorsed
by a majority vote in the legislature.
I confess to being utterly perplexed by the Integrity Commissioners ruling,
for a number of reasons:
- The MPPs comments were made outside the legislature, so by definition
the sub judice convention cannot apply. The Standing Orders, on their own
terms, apply only to what happens inside the legislature. How can an MPP
violate the Standing Orders if he or she is speaking outside the legislature?
- The Integrity Commissioners report appears to misquote the Standing Order,
which requires not only a finding that there is a judicial proceeding,
but also a finding that there is real and substantial danger of prejudice
to the proceeding. The Integrity Commissioner addressed only whether there
was an ongoing judicial proceeding (there was). He did not address, at
all, how the MPPs remarks posed a real and substantial danger of prejudice
in the particular case.
- The Integrity Commissioner notes that the MPPs comments did not, in fact,
have any impact on the plea bargaining process or the sentence imposed
by the judge. I suspect most prosecutors would deny absolutely that their
judgment could be swayed by other than professional considerations. A prosecutors
conduct is governed by well-established case-law, departmental policy,
and professional standards. In some provinces, the prosecution service
is formally independent of government.
- As the Integrity Commissioner notes, the plea bargain was carried on between
the Crown prosecutor and defence counsel, under the supervision of an experienced
judge. If the judge had any fear for the fairness of the proceeding, he
could have cited the MPP for contempt. The complaint under the Members
Integrity Act came from another MPP (as required under the Act), apparently
acting at the request of the victim and her counsel.
It may be that the victim in this particular case had the right to be unhappy
with, even outraged by the MPPs comments. Some might even judge the MPPs
comments to have been ill-conceived, given that the possibility of a restitution
order is provided for in the Criminal Code, and that restitution orders
are not all that unusual. Nevertheless, applying the sub judice convention
in these circumstances effectively suppresses all discussion, even outside
parliament, of criminal plea bargains, which are a legitimate subject of
public-policy debate. Respectfully, I suggest this to be an unwarranted
extension of the sub judice convention.
The Nova Scotia case involved a controversial quarry development in Digby
County, Nova Scotia, that was a factor in the election of a new MLA in
the August 2003 general election. The new MLA opposed the quarry.
In October 2003, the developer filed two defamation suits, naming a citizen,
the local newspaper, the newspapers owner, and a reporter as defendants.
The paper had run a story which quoted the citizen alleging certain wrongdoing
by the company.
The new MLA rose in the House on October 22, 2003, during Question Period,
to ask the Premier what he intended to do to protect Digby citizens right
of free speech. The Speaker ruled the question out of order on the grounds
that it was on a matter before the courts.
At the end of Question Period, the MLAs House Leader raised a point of
order, asking the Speaker to rule whether the sub judice convention applies
to civil cases. The following day, the Speaker read a formal ruling. He
found that the sub judice convention can apply to both criminal and civil
proceedings. He noted that defamation suits in Nova Scotia are heard by
a jury. Consequently, he ruled that he had correctly found the question
to be out of order.8
Respectfully, I would suggest there were several problems with this ruling.
According to the 1977 Special Committee report, which the Speaker cited
in his ruling, the sub judice convention should apply only in exceptional
cases, where the risk of prejudice is clear. Moreover, the Special Committee
recommended that the convention should almost never be invoked during Question
Period. Finally, the Special Committee recommended that the burden of establishing
prejudice should rest on the person seeking to restrict debate. In this
case, the Speaker himself invoked the sub judice convention, without any
objection (at least, on the record) having been made from the government
The Speakers ruling relied heavily on the fact that defamation trials
are, in Nova Scotia, heard by a jury. What the Speakers ruling did not
take into account was that the lawsuit had been filed only days before,
and therefore the selection of a jury was years away, if indeed the matter
ever came to trial at all.
With the benefit of hindsight, we now know that the plaintiff took no further
action to advance its case. The lawsuits were formally discontinued, one
in late 2005 and the other in early 2006. That is usually a sign that the
parties have reached a settlement. The cases will never come to trial.
Practical Guidance for Members: Restraint
I would be remiss to conclude this paper without pointing out the most
practical guidance of all: that is, that almost all sub judice issues can
be resolved if parliamentarians show some restraint in their approach to
Parliamentarians need to show restraint because the damage can be done
before a presiding officer can intervene.
Parliamentarians must also remind themselves that anything that might be
contemptuous, if said outside parliament, is unlikely to be a constructive
contribution to debate, if said inside parliament.
The most likely scenario is that a parliamentarian will, in the heat of
the moment, accidentally stray into red flag areas. In these cases, where
the trespass is truly accidental, a word of caution from the presiding
officer should be sufficient to encourage the member to re-think or re-phrase
the thought in a more acceptable way.
In cases where the trespass is not accidental, the member would be well
advised to let the presiding officer know in advance that the reference
to a judicial proceeding will be made. This affords the presiding officer
an important courtesy, which is time to gather the facts so that the presiding
officer is in a good position to judge whether there is a real and substantial
risk of prejudice to the judicial proceeding.
A presiding officer may have some procedural options if a
sub judice case
arises without notice. The presiding officer may (especially in committee)
have other procedural options, such as moving in camera, taking a brief
recess to make informal inquiries of the member, or excusing a witness
from answering a question.
If the member persists, and the presiding officer is persuaded that the
statement might be in contempt of court if stated outside the chamber,
the presiding officer may then invoke the sub judice convention, and rule
the member out of order.
But if presiding officers have a realistic idea of what behaviour constitutes
contempt, and if members exercise a modicum of restraint, invocation of
the sub judice convention should be very rare indeed.
1. See Marleau and Montpetit,
House of Commons Procedure and Practice,(Ottawa:
House of Commons, p. 104.
2. See Canada, House of Commons Journals, April 29, 1977, pp. 720-729.
This report followed a fine article by Phillip Laundy, The Sub Judice
Convention in the Canadian House of Commons, The Parliamentarian, Vol.
57, No. 3 (July 1976), which noted that no attempt had hitherto been made
to codify the practice around sub judice.
3. See Joseph Maingot, The Law of Privilege (2nd Edition) pp 29 31.
4. Re Ouellet (No. 1) (1976), 67 D.L.R. (3d) 73 (Que.S.C.). pp. 85 87.
5. Re Ouellet (Nos. 1 and 2) (1976), 72 D.L.R. (3d) 95 (Que.C.A.).
6. Most of the following section on the law of contempt is my paraphrase
of Jobbs chapter 5, Contempt of Court. Mr. Jobb is a former journalist,
and currently a professor in the journalism department at the University
of Kings College, Halifax.
7. See Application of the Sub Judice Convention, in
The Table, Volume
64 (1996) at p. 92, recording a ruling of the Speaker of the U.K. House
of Commons on June 27, 1994.
8. Nova Scotia House of Assembly,
Hansard, October 22, 2003, pp. 1480-1481
(question) and pp. 1501-1502 (point of order); and October 23, 2003, pp.
1571-1572 (Speakers ruling).