I am now prepared to rule on the question of privilege raised on Tuesday, May 31, 2005 and on Thursday, June 2, 2005 by the hon. member for Glengarry—Prescott—Russell concerning the blocking of fax lines and the registration of Internet domain names of certain members of the House of Commons by individuals or organizations with no affiliation to the House, which the hon. member claimed has prevented them from carrying out their work as parliamentarians
I would like to thank the hon. member for raising this matter. I would also like to thank the hon. deputy House leader of the official opposition and the hon. members for Charlesbourg--Haute-Saint-Charles, British Columbia Southern Interior, Cambridge, and Prince Albert for their interventions on May 31. In addition, I would like to thank the hon. members for Halton, Scarborough--Rouge River, Edmonton--Sherwood Park, Yorkton--Melville, and Elmwood--Transcona for their contributions to the discussion on June 2.
On May 31 the hon. member for Glengarry--Prescott--Russell claimed that his right to carry out his duties as a member of Parliament had been interfered with by a group called Focus on the Family Canada which was blocking his and other members' office telephone lines by sending multiple computer-generated faxes.
To illustrate, he indicated that during the course of one day he had received over 800 facsimiles. Only a handful of these faxes had been from constituents, whereas on a normal business day his office would receive an average of 30 to 40 faxes from constituents. He argued that because of this, his constituents had been unable to communicate with him and that he had not had access to notices sent out concerning committee and House business. He further claimed that some of the faxes had been sent by someone who was impersonating a member of Parliament.
In his arguments, the hon. member cited the ruling I had given on a similar matter on February 12, 2003 concerning mass e-mails. He also referred to a judgment handed down in the Ontario Court of Justice by Mr. Justice A.L. Eddy on November 22, 2000 in the case of Her Majesty the Queen against a citizen of Ontario who was found guilty of harassing a member of the Ontario legislature.
In conclusion, the hon. member cited Marleau and Montpetit at page 84 which states that Speakers have consistently ruled that members have the right to carry out their parliamentary duties free from obstruction, intimidation and interference. He asserted that, by interfering with the work of individual members, the organization responsible was in contempt of the House. He indicated that if the Chair found a prima facie case of privilege, he was prepared to move the appropriate motion.
In his intervention, the hon. member for Charlesbourg—Haute-Saint-Charles confirmed that his office had also received over 1,000 faxes and 2,300 e-mails in a span of 36 hours, thus monopolizing the tools provided to him as a member of the House, as well as the time of his staff. In addition, he argued that this action was an infringement on the privileges of members of Parliament because they are unable to carry out their parliamentary duties or remain in contact with their constituents
The deputy House leader of the official opposition challenged the claim of harassment, asserting that all Canadian citizens have the right to communicate with all members of Parliament on matters of public interest. He dismissed as absurd the contention that citizens wishing to communicate with members of Parliament on an issue of public moment constituted an attack on anyone. He maintained a logistical solution could be found to the problem and warned against censoring Canadians from communicating with their members of Parliament.
The hon. members for British Columbia Southern Interior, Cambridge, and Prince Albert contributed to the discussion by seeking clarification of certain points raised by the hon. member for Glengarry--Prescott--Russell.
On June 2 the hon. member for Glengarry--Prescott--Russell rose again to bring to the attention of the Chair that in addition to the communication difficulties he and other members were experiencing as he had described on May 31, an organization called Defend Marriage Coalition had taken over the Internet domain names of approximately 40 to 50 members of Parliament. This, he alleged, was not a legitimate use of the domain names.
He also claimed that in the case of 15 of these sites, this organization not only was using the members' names to access the sites, it had also published information about these members of Parliament. These sites, he alleged, were designed to look like the official websites of the members concerned, of which he also questioned the legitimacy. He contended that this constituted a bona fide case of privilege.
In response, the hon. deputy House leader of the official opposition argued that it was incumbent upon members to register their domain names and that this matter was not within the purview of the House or the Speaker.
The hon. member for Halton, in his intervention, informed the Chair that he was one of the members whose domain name had been taken over by the organization in question and it was using his House of Commons photo on its site, thereby creating the impression that it was his official website. The hon. member for Scarborough--Rouge River wondered if this might be a case of impersonation or identity theft, which would interfere with the duties of the members and the functions of the House.
I want to assure all hon. members that I consider this situation to be very troubling. Allegations of obstruction, interference and misrepresentation should not be taken lightly.
Over the years, members have brought to the attention of the House instances which they believed were attempts to obstruct, impede, interfere, intimidate or molest them, their staffs or individuals who had some business with them or the House. Since these matters relate so closely to the right of the House to the services of its members, they are often considered to be breaches of privilege.
That being said, members of Parliament come into contact with a wide range of individuals and groups during the course of their work and are subject to all manner of influences, some legitimate and some not.
First of all, I wish to address the matter of the blocking of members' fax machines and email systems.
The hon. member for Glengarry--Prescott--Russell claimed that he had been obstructed from fulfilling his duties with respect to his constituents because of multiple computer-generated faxes that were preventing them from contacting his office in an expeditious manner. To support his contention, he cited the ruling I gave on February 12, 2003, at pages 3470 and 3471 of the Debates , concerning the disruption a mass emailing from a member's office had on the House's email system. I did not find that there was a prima facie question of privilege, but encouraged hon. members to use alternative means of communication and set in motion administrative changes to rectify the situation.
The hon. member also referred to a decision rendered in a court case before the Ontario Court of Justice in November 2000. I have now had an opportunity to review the particulars of the judgment and wish to share these with you.
In 2000 a resident of Ontario was charged with and found guilty of mischief by wilfully interrupting and interfering with the lawful use and operation of the property of Mr. William Murdoch, a member of the Ontario Legislature, by continually sending numerous lengthy facsimile messages to his Queen's Park and constituency offices.
The judge looked at the broad issue of what were the constraints, if any, on the right of a constituent to contact, consult and relate to his elected member of the provincial Parliament and whether it was open to the court to set reasonable limits.
The judge determined that the faxes were not sent by the accused in any realistic effort to inform and assist the member in carrying out his duties but, rather, they were sent in anger and in frustration in an effort to express his dissatisfaction.
In addition, the judge found that the citizen's actions had the effect of monopolizing the member's fax machines, thereby precluding the ordinary and reasonable use of them by constituents and others, and impeding the member and his staff from carrying out the orderly operation, activity and responsibilities of the member's office.
The judge ruled that the right of a citizen to communicate with a member is not without reasonable limits and that, when a constituent, by his or her actions, affects the ability of others to access and exercise their rights, a boundary has been crossed. The judge found that there is an inherent responsibility on the part of the constituent in his or her dealings to act in a manner that respects others' rights of access.
In the matter raised on May 31, the Chair has examined all the material supplied by the hon. member for Glengarry—Prescott—Russell and has found only one facsimile attributed to a member of the House. In the absence of any complaint from a member that he or she was or is being impersonated, the Chair will set aside the claim that facsimiles had been received from individuals falsely claiming to be members of this House.
With regard to the second issue raised on May 31, namely, whether or not the hon. member has clearly demonstrated that his constituents have been limited or prevented from contacting him in a reasonable and ordinary fashion, it is evident from its website that Focus on the Family Canada is encouraging Canadians to contact the members of the legislative committee and express their views with regard to Bill C-38.
Unlike the court case referred to by the hon. member for Glengarry--Prescott--Russell, where only one individual was involved in a deliberate attempt to obstruct the Ontario MPP, with no intent to inform or influence, dozens or perhaps hundreds of individuals are contacting members as they are free to do. I must ask myself, is the intent of these communications to prevent the members' constituents from contacting them? This is impossible to tell.
While it is clear that large numbers of faxes and emails have been sent to the offices of the hon. member for Glengarry--Prescott--Russell, Charlesbourg--Haute-Sainte-Charles and others, and have interfered with the smooth functioning and ordinary routines of those offices, the hon. members and their constituents have still been able to communicate, albeit somewhat erratically, by facsimile and email, as well as by letter post and telephone.
Most certainly, the hon. member does have a grievance, but does it constitute a prima facie contempt of the House? As is pointed out in Marleau and Montpetit, at pages 91 to 95, there are numerous examples of members raising similar, legitimate complaints, but Speakers have regularly concluded that members have not been prevented from performing their parliamentary duties. Therefore, though the work and the offices of certain members may have been slowed, I cannot find a prima facie question of privilege in this regard.
I now wish to deal with the matter raised by the hon. member on June 2 concerning the cyber squatting of members’ domain names and the creation of websites that resemble those of members.
I am very concerned about this situation and the potential negative impact it is having on some members. When this situation was first brought to my attention, I visited the official website of the hon. member for Glengarry--Prescott--Russell to see for myself what the problem was. On the website, listed under LINKS, I clicked on the link to the federal party association and up came the cybersquatting site. I worried at the time that this indicated that the hon. member's official site had been tampered with. Had that been the case, I might well have been inclined to find a prima facie case of privilege.
However, I have since learned that the offending link was not the result of some hacker, but that there was a far less sinister explanation. Simply put, the link occurred because the cybersquatters had bought the domain name when the hon. member's ownership of his name lapsed and the link, which predated the change in ownership of the domain name, had not been modified to take account of that change.
As a number of hon. members pointed out on June 2, like many things on the Internet, it may well be that it is impossible to resolve this. As was noted, it is incumbent upon members to register their domain names if they wish to prevent others from registering similar or even identical ones. I would urge all hon. members to take such precautionary measures immediately, for once a member's domain name has fallen into other hands, it is not easy to find a remedy to the situation.
In such cases, it appears to the Chair that hon. members may certainly have a grievance in this situation, and a serious grievance, but I cannot find that members have been prevented in any way from carrying out their parliamentary duties. Therefore, I cannot find that this constitutes a prima facie case of privilege.
The question of privilege raised by the hon. member for Glengarry—Prescott—Russell raises important issues in an era where communications technology is ubiquitous and the demand for accessibility grows daily more aggressive. It is, of course, the right of all Canadians to communicate with their members of Parliament, but when does the exercise of the right to communicate with Parliament become unreasonable? What role, if any, should the House take in regulating such communication?
Similarly, with regard to “cybersquatting”, is this a legitimate means of engaging in debate and holding a member accountable in the public square for his or her stand on an issue? Is the inconvenience to the member and the potential confusion in the minds of constituents and citizens irrelevant to that legitimacy? Or ought the House look at safeguarding the Internet identity of its members in the interests of ensuring clear democratic discourse? Or ought this situation simply be left to the forces of the marketplace, leaving members who have not taken steps to protect their domain names to bear the consequences?
In conclusion, it is evidence that the matters raised last week are serious and bear further discussion and examination. It seems clear to the Chair that, given the realities of communication technologies in 2005, members of all parties will doubtless be faced with similar situations in the future. As it happens, Standing Order 108(3)(a)(i) mandates the Standing Committee on Procedure and House Affairs, which is chaired coincidentally by the hon. member for Glengarry—Prescott—Russell, “to review and report on the provision of services and facilities to Members”.
Accordingly, the hon. member for Glengarry—Prescott—Russell may well wish to take these matters up with the committee to explore, at a minimum, the ramifications of new communication technologies, including the Internet, as they affect members in the performance of their duties.
I thank all honourable members for their interventions on this very important matter.