The sub judice convention: what to do when a matter is 'before the courts'.

• Author: Steele, Graham

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 can't 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 any process.

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 court cases. (1)

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 debate.

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 party's 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 society's 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 society's 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 Committee's 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 22)

* All members should be expected to exercise discretion in cases where there might be prejudice to a judicial proceeding. During Question Period, the Speaker's 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. (Paragraph 24)

In my view, the Special Committee's 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...