I'll start again, just so that we're all clear here:
There are other limitations to the privilege of freedom of speech, most notably the sub judice (“under the consideration of a judge or court of record”) convention. It is accepted practice that, in the interests of justice and fair play, certain restrictions should be placed on the freedom of Members of Parliament to make reference in the course of debate to matters awaiting judicial decisions, and that such matters should not be the subject of motions or questions in the House. Though loosely defined, the interpretation of this convention is left to the Speaker. The word “convention” is used as no “rule” exists to prevent Parliament from discussing a matter which is sub judice. The acceptance of a restriction is a voluntary restraint on the part of the House to protect an accused person or other party to a court action or judicial inquiry from suffering any prejudicial effect from public discussion of the issue. While certain precedents exist for the guidance of the Chair, no attempt has ever been made to codify the practice in the House of Commons.
The sub judice convention is important in the conduct of business in the House. It protects the rights of interested parties before the courts, and preserves and maintains the separation and mutual respect between the legislature and the judiciary. The convention ensures that a balance is created between the need for a separate, impartial judiciary and free speech.
The practice has evolved so that it is the Speaker who decides what jurisdiction the Chair has over matters sub judice. In 1977, the First Report of the Special Committee on the Rights and Immunities of Members recommended that the imposition of the convention should be done with discretion and, when there was any doubt in the mind of the Chair, a presumption should exist in favour of allowing debate and against the application of the convention. Since the presentation of the report, Speakers have followed these guidelines while using discretion.
It says further:
During debate, restrictions are placed on the freedom of Members of Parliament to make reference to matters awaiting judicial decisions in order to avoid possible prejudice to the participants in the courts. This self-restraint recognizes the courts, as opposed to the House, as the proper forum in which to decide individual cases. Matters before the courts are also prohibited as subjects of debate, motions or questions in the House. While precedents exist for the guidance of the Chair, no attempt has ever been made to codify the practice known as the “sub judice convention”.
The sub judice convention is first and foremost a voluntary exercise of restraint on the part of the House to protect an accused person, or other party to a court action or judicial inquiry, from any prejudicial effect of public discussion of the issue. Secondly, the convention also exists, as Speaker Fraser noted, “to maintain a separation and mutual respect between legislative and judicial branches of government”.
There are some situations in which the application of the sub judice convention is fairly straightforward. The convention has been applied consistently to motions, references in debates, questions and supplementary questions and in all matters relating to criminal cases.
The convention does not apply to legislation....If the sub judice convention were to apply to bills, the whole legislative process could be stopped....
No distinction has ever been made in Canada between criminal courts and civil courts for the purpose of applying the sub judice convention, and it has also had application to certain tribunals other than courts of law. The convention exists to guarantee everyone a fair trial and to prevent any undue influence prejudicing a judicial decision or a report of a tribunal of inquiry.
I would like to repeat that line, as I think it is the crucial line here:
The convention exists to guarantee everyone a fair trial and to prevent any undue influence prejudicing a judicial decision or a report of a tribunal of inquiry. Indeed, in the view of the Special Committee on the Rights and Immunities of Members, “prejudice is most likely to occur in respect of criminal cases and civil cases of defamation where juries are involved”.
Where criminal cases are concerned, the precedents are consistent in barring reference to such matters before judgement has been rendered and during any appeal. Members are expected to refrain from discussing matters that are before a criminal court, not only in order to protect those persons who are undergoing trial and stand to be affected whatever its outcome, but also because the trial could be affected by debate in the House. It has been established that the convention would cease to apply, as far as criminal cases are concerned, when judgement has been rendered. The Speaker has confirmed that a matter becomes sub judice again if an appeal is entered following a judgement.
The precedents are not [quite] as consistent where civil cases are concerned.... However, in 1976, the Speaker ruled that no restriction ought to exist on the right of any Member to put questions...particularly those relating to a civil matter, unless and until that matter is at least at trial. Although nothing resembling a settled practice has developed in relation to civil cases, the Chair has warned on various occasions of the need for caution in referring to matters pending judicial decisions whatever the nature of the court.
In the court of record in commissions and inquiries,
from the precedents, it is clear that the application of the convention is limited to tribunals designated by statute as courts of record.
A court of record [for my colleagues] is defined as follows: “A court that is required to keep a record of its proceedings.... [The court's records are presumed accurate] and cannot be collaterally impeached. [And too, it is a court] that may fine and imprison [people for contempt]. The sub judice convention does not apply...to matters referred to royal commissions, although the Chair has cautioned against making reference to proceedings, evidence, or findings of a royal commission before it has made its report.
The Role of the Speaker
Since the sub judice convention is not codified...the jurisdiction of the Speaker in such matters [has been] difficult to outline. The Speaker's discretionary authority over matters sub judice derives from his or her role as guardian of free speech in the House. The Chair has the duty to balance the rights of the House with the rights and interests of the ordinary citizen undergoing trial. Indeed, the Speaker [intervenes] in exceptional cases only where it [appears likely] that to do otherwise would be harmful.... The problem facing a Speaker is that determining when a comment will have a tendency to influence is speculative business—it cannot be done until after the remarks [are] made.
In its inquiry, the Special Committee on the Rights and Immunities of Members recommended that when 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. The Committee concluded that while there can be no substitute for the discretion of the Chair, in the last resort all Members of the House should share the responsibility of exercising restraint when it seems called for. A Member who feels...there could be a risk of causing prejudice in referring [matters] to a particular case...should refrain from raising the matter. Further...a Member who calls for the suppression—
