Thank you.
The sub judice convention is an unwritten convention whereby the House and its committees voluntarily refrain from discussing matters that are before the courts. The convention has two aims: to protect the parties in a legal dispute from any prejudicial effect that could result from a public discussion of the issue by parliamentarians, and to maintain a separation of mutual respect between legislative and judicial branches of government.
As regards the first aim, the convention seems to apply differently to criminal and civil cases. It applies much more rigorously in criminal matters. Indeed, the House and its committees on principle do not discuss any case in which a person has been formally charged with an offence. The application seems more flexible in civil matters, where parliamentarians' freedom of speech is restricted only when the merits of the case are being heard, and not from the time of action in commencing or during any interlocutory proceedings.
As regards the second aim, which concerns the principle of the separation of powers, the convention should apply equally to criminal and civil cases. The importance of this aim is made clear in the following comment made by the Supreme Court of Canada in Vaid:
It is a wise principle that the courts and Parliament strive to respect each other’s role in the conduct of public affairs. Parliament, for its part, refrains from commenting on matters before the courts under the sub judice rule. The courts, for their part, are careful not to interfere with the workings of Parliament. None of the parties to this proceeding questions the pre-eminent importance of the House of Commons as “the grand inquest of the nation”.
In a number of recent decisions, the courts have recognized the parliamentary privileges of the House of Commons, thereby acknowledging its independence from the judiciary. To maintain that flow of favourable decisions and retain the sympathy of the courts in its regard, the House must, in my opinion, reciprocate by respecting the independence of the courts.
As Marleau and Montpetit state in House of Commons Procedure and Practice, “...the perception and reality of the independence of the judiciary must be jealously guarded.” Therefore, now that the matter is before the courts, the House and its committees should refrain from discussing it in order to avoid the risk of encroaching on the independence of the judiciary.
I should remind all members of the committee that this is the position this committee took a few months ago in the case of Telefilm Canada.
So this is the decision I have taken, in consultation with the clerk and with various other people, and I am open for comment.
Mr. Angus.