On a point of order, please.

Speaker, I submit that the motion itself is actually out of order and that any relevant debate of such a motion would also be out of order. A decision to permit this motion to be considered would be unprecedented and set a dangerous new standard for the conduct of future business of the House as it intersects with the judicial branch of government and will negatively affect the delicate balance that is the constitutional separation of powers. With your indulgence, Speaker, I do have several points for your consideration.

The unamendable motion put forward by the Leader of the Opposition includes a significant amount of preamble related to various government policies and initiatives, and alone, that subject matter would be in order for consideration. However, the thrust and crux of the motion, the resolution itself, seeks to have the House adopt a position which would directly insert itself into a matter presently before the Information and Privacy Commissioner, which is a quasi-judicial body constituted under the authority of an act of the Legislature.

Further, adoption of the motion, and the requisite references to the subject matter in debate, would create a real and substantial danger of prejudice to the proceedings presently before the Information and Privacy Commissioner. The subject matter of the opposition leader’s motion is an appeal presently being considered by the Information and Privacy Commissioner, an officer of the Assembly and an office established under section 4 of the Freedom of Information and Protection of Privacy Act passed by this Legislature.

While I acknowledge that the Speaker cannot be aware of every proceeding before every court or every quasi-judicial body or its status, in the case before us the Leader of the Official Opposition has set out the fact that there is a pending proceeding before the Information and Privacy Commissioner’s adjudicative division directly and clearly within the text of the motion. I quote the motion’s last line: “Therefore, the Legislative Assembly calls on the Premier to cease his access-to-information appeal and disclose the contents of his personal phone and email accounts to the Information and Privacy Commissioner.”

Further, I will table a Global News article written by Colin D’Mello, Global’s Queen’s Park bureau chief and member of the Queen’s Park press gallery, and Isaac Callan dated August 15, 2023. This article sets out that a Global News access-to-information request on the subject had been denied and makes clear they are pursuing an ongoing FOI, or freedom-of-information, appeal. As FIPPA sets out, such appeals are to the Information and Privacy Commissioner.

Part IV of the act sets out an appeal process to the Information and Privacy Commissioner in cases of disputes between members of the public and heads of branches of government over the disclosure of information. This part of the act establishes the quasi-judicial nature of the Information and Privacy Commissioner and parts of his or her office by establishing an adjudicative process for the resolution of appeals. The IPC is empowered, under section 52 of the act, to conduct inquiries and hearings related to appeals, to examine records, to summon persons, to examine them under oath, to apply rules of evidence and make orders to resolve appeals, which clearly establishes the commissioner’s quasi-judicial nature.

Further, the IPC’s own materials acknowledge the commissioner to have “quasi-judicial duties and powers” and the commissioner maintains a tribunal and dispute resolution division. I will table a number of references for your review.

Now, I will address the application of the sub judice convention and our own codification of it within our standing orders. House of Commons Procedure and Practice notes the convention “is first and foremost a voluntary exercise of restraint on the part of the House in which restrictions are placed on the freedom of members to make reference in debate to matters which are sub judice, that is, awaiting judicial decisions.” It goes on to say, “It is also understood that matters before the courts are also prohibited as subjects of motions, petitions or questions in the House” but not to legislation or the rights of Parliament to legislate.

Speaker, I’m sure you recall, you ruled to this effect related to the sub judice nature of content of the bill back on September 17, 2018, as several Speakers have before you. What we have before us now is not a piece of legislation. It’s a motion. Its adoption or defeat cannot alter the state of the law in Ontario, but it can serve to prejudice the ongoing appeal before the Information and Privacy Commissioner.

House of Commons Procedure and Practice goes on to note that “no distinction has ever been made in Canada between criminal courts and civil courts for the purpose of applying the sub judice convention. It has also been applied with respect to certain tribunals other than courts of law” but that “the precedents are not as consistent where civil cases are concerned. The convention has been applied on some occasions and not on others” and that “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.”

When discussing the sub judice convention, these procedural authorities must be considered carefully and the House of Commons context distinguished from our assembly.

Itis important to note that the House of Commons, from which the procedural authorities I have referenced originate, has never made any attempt to codify the convention within its standing orders, while this assembly partially has. While the uncodified convention is acknowledged to apply beyond criminal courts to tribunals, which have status as courts of record, our House, under standing order 25, which has existed in some form since 1970, has chosen to go further and specify that matters that are the subject of a proceeding before any quasi-judicial body constituted by the House or by or under the authority of an act of the Legislature are considered sub judice and must be avoided. It is true that standing order 25 respects matters which are out of order in debate. You noted this, Speaker, in your September 2018 ruling, but you noted it to distinguish debate on legislation from the effect of the legislation itself.

You correctly noted that the convention and our standing orders do not and cannot “operate to limit the superior and pre-eminent right of the Legislature to legislate in the first instance.”

It is critical, however, to note that this situation is not precisely the one which was before you in 2018. The NDP leader has not put forth legislation, but a motion, a motion seeking to establish a position of this House directly respecting a matter that is sub judice. In this particular matter, it is also clear that the wording of the motion necessitates that any substantive debate of it would have to discuss the matters which are sub judice.

Certainly, it would be an absurd interpretation of our standing orders that they could allow for a situation in which a motion may address matters which are sub judice when the very debate on that motion would be out of order.

If this House were to adopt this motion, especially in an area where the assembly has, in statute, delegated a specific authority to an officer of Parliament, it would create an extremely dangerous precedent.

If allowed, would it then be permissible in the future for the assembly to consider and adopt motions which sought to take a position in a case before Ontario’s Landlord and Tenant Board? Would it be permissible to take a position in a case before the Human Rights Tribunal? What would distinguish any of these scenarios from a minor criminal case or a civil trial? In any of these cases, permissibility aside, would it be advisable or will we have firmly charged that through the constitutional separation of powers into the domain of the courts?

This motion before us does not seek to assert the assembly’s legislative superiority or pre-eminence, it seeks only to insert the House politically into the Information and Privacy Commissioner’s statutory sphere of competence.

There is another important distinction from the House of Commons. In June 1987, Speaker Fraser considered a similar point of order to the one I am raising today: an opposition day motion respecting a civil matter that was before the courts. The Speaker also noted that there was no settled practice respecting matters of the subject of civil cases and referenced Beauchesne in noting that the convention has historically applied after the matter has reached the trial stage.

The Speaker ruled allowing the opposition day motion to stand as that case had not yet reached the trial stage and further referenced Beauchesne, pointing out that “the opposition prerogative is very board to use the allotted day and ought not to be interfered with except on the clearest and most certain procedural grounds.”

The case before us today is different than the one before Speaker Fraser for several reasons: one being that the House of Commons had not codified any part of the sub judice convention, as we have; a second being that this is not strictly a civil case before a court, it is an appeal before a quasi-judicial body, which is clearly sufficient under our standing order to make its consideration problematic.

Also distinguishing is that the IPC appeal process does not include a formal trial stage; instead the adjudicative part may include an inquiry and hearings which may not be open to the public. Thus, this House has no way to know if they are occurring until a resolution has actually been reached. In such a case, the House ought to show restraint in the spirit of the convention and restrict its deliberations until such a time as an IPC appeal has been settled. It’s even more problematic that the quasi-judicial body responsible for this matter at hand is headed by an officer of this Parliament, unlike a court, which exists entirely outside the jurisdiction of the Legislature, the Information and Privacy Commissioner is hired on the recommendation of an all-party panel of members of this assembly followed by the adoption of a motion in this House.

Despite the statutory powers granted by this Legislature to the commissioner to adjudicate certain matters, the commissioner is independent of only the government but is not independent of this assembly. If this House were to adopt the NDP leader’s motion, is there not a real risk that the commissioner and the commissioner’s office could take such an act of the assembly as a signal from us of a desired outcome in this particular appeal?

We, as an assembly, maintain the ability to remove the commissioner, and even reduce or eliminate the office’s funding. This intersection of authorities is exactly why the member’s motion is out of order and why it would be so dangerous to set the precedent that the House should consider any such motions.

By considering this motion, this House creates a real and substantial danger of prejudice to the proceeding before the IPC, the outcome of which would not be risk to an initiative of government, but potentially significant invasion of the Premier’s personal privacy.

I submit that the NDP leader could possibly have rephrased the motion to make it more orderly and achieve her political objective. With matters sub judice, I admit there has typically been a balance between the legitimate objectives of a Parliament and the need to respect the constitutional separation of powers.

I have mentioned the right to legislate cannot be subverted. Looking to the Laurentian University Speaker’s warrants which were issued by this House in the last Parliament, I can imagine a situation in which further action of the House was warranted while the matter remained before another court. In that case, I believe several motions and debate would have been justified despite the sub judice convention and standing order because the Speaker was, in fact, party to those matters on behalf of this House.

In preparing these documents, I have reviewed all of the opposition day motions considered by this House since 1989. In some cases, the House has come quite close to crossing the boundary set by the convention and our standing orders but has not crossed it.

In June 1997, the House considered a motion calling for an independent inquiry into the events at Ipperwash and mentioned the death of Dudley George; however, the House waited to consider this until after the criminal matter was settled at the trial stage and concluded consideration before the matter was appealed.

Another motion related to the very same matter was considered in May 2001 prior to the resolution of a pending civil case. However, that motion did not refer to the civil case in any way and called only for a public inquiry, not action of this House in the lawsuit or desired action of any parties to it.

In May 2002, the House considered a motion with respect to the sale of Hydro One. While there was an appeal in a civil case pending from April to June of that year, the government had simultaneously tabled legislation. The motion called on the government only to withdraw its legislation or to call a general election on the issue. It did not mention the civil case. In this case, it was certainly within the jurisdiction of the House to consider its position on a piece of legislation before it.

Other similar examples exist, and it is to some regret that, on occasion, the House treaded as close as it has to the fundamental constitutional boundary between Parliament and the courts; but of key importance is that it has not made a practice of crossing the boundary as this motion does. Even if the House had crossed this boundary in the past, the intentional or unintentional disregard for a rule does not forever abrogate it.

Where the subject of opposition day motions has treaded near the judicial sphere, the record shows that the thrust of such motions have dealt with a more general public policy position and that members have generally shown restraint during debate when departing the policy discussions and approaching the case-specific subject matter. However, no motion has so directly sought to improperly enter the judicial sphere as this does by specifically calling on this House to take a direct position in a pending case.

If the sub judice rule does not apply to the thrust of the motions when they are so clearly offensive to it, then this rule may as well be entirely disregarded as we will have confirmed it to be a mere platitude which, when challenged directly, is swiftly dispensed with. This is not only the opposite of restraint described in Bosc and Gagnon, but it invites the courts to gradually make such similar incursions into the parliamentary sphere of competence.

I would also submit that there is nothing exceptional about the proposed debate which justifies a change to precedent, a departure from the application of the standing orders or the risk of sending a signal to one of our own parliamentary officers that the assembly as a whole desires any particular decision in the case before him or her.

Speaker, the arguments I have made have demonstrated the following:

Our codification of the sub judice convention in standing order 25 clarifies that the subject matter of this motion is clearly sub judice as it remains before the Information and Privacy Commissioner’s adjudicative division.

Any consideration of the motion would require or encourage members to reflect upon the matter, which is sub judice.

Given the nature of the quasi-judicial body which is responsible for the matter as an officer of this Parliament, it is certain that the motion and consideration of it “would create a real and substantial danger of prejudice to the proceeding.”

The House of Commons procedural authorities are insufficient alone to provide complete guidance on the matter because the House of Commons has not codified the sub judice convention as our House has.

The most relevant Speakers’ rulings from this place and the House of Commons are not sufficiently analogous to the situation before us to serve as precedent.

The overwhelming practice of this House has not been to directly test the boundaries of the sub judice convention.

Finally, I would like to address the application of standing order 1 to this matter. That standing order states that the purpose of the standing orders is to ensure that proceedings are conducted in a manner that respects the democratic rights of all members to do several things.

The first is to submit motions, resolutions and bills for consideration. We know that right is not unlimited by the simple fact that a motion must be in order to be submitted for consideration and determined by vote. Similarly, not all members are entitled to submit all types of motions for consideration. The opposition cannot submit substantive government motions nor routine motions, and similarly the government cannot submit motions for consideration on opposition days. As well, the subject matter and phrasing of motions follows very specific rules, as you know.

The second, to debate, speak to and vote, is also not unlimited given that we maintain rules which limit the subject matter of debate such as those listed under standing order 25.

The third, to hold the government accountable for its policies, does not apply in this case given the thrust of the motion relates to a quasi-judicial matter of a personal nature for the Premier.

The fourth, to collectively decide matters, is limited by the need for such matters to be proposed within the confines of the rules of this place.

I would also urge you, Speaker, in considering the democratic rights of all members to consider the democratic rights of our Premier, in this case, but of any member of Parliament or member of the public who in the future might have a pending matter before a court or quasi-judicial body and ought to expect fair and impartial consideration of that matter without the undue influence of this House outside its jurisdiction.

Given these conclusions, I submit that the opposition day motion violates the sub judice convention and standing order 25 and does so, in the words of Beauchesne, on the “clearest and most certain procedural grounds.” As such, the motion must be ruled out of order and the debate set aside.

Speaker, thank you for consideration.

Speaker, point of order: The member opposite is arguing the merits of the motion, not the actual point of order.

I move that the Standing Committee on Finance and Economic Affairs be authorized to meet during the winter 2023-24 adjournment of the House at the call of the Chair.