High Crimes, a remedial review.

In these troubled times, where bribery and corruption in Ottawa leads the front pages of newspapers from coast to coast, I felt it was time to do some remedial reading, as it were.  Let us review how one can be found guilty of hgih crimes.

Wikipeda defines high crimes thusly:  “The charge of high crimes and misdemeanors covers allegations of misconduct that do not fall under a more clearly defined impeachable offence; e.g., high treason. This charge occurs only in cases of parliamentary impeachment and is unrelated to any offence in criminal law.”

In Chapter Two of the Standing Orders for Members of the Parliament of Canada the following is found:

The offer of any money or other advantage to any Member of this House, for the promoting of any matter whatsoever depending or to be transacted in Parliament, is a high crime and misdemeanour, and tends to the subversion of the Constitution.

Commentary — Standing Order 23(1)

One of the privileges of individual Members entitles them to carry out their parliamentary duties freely, without intimidation or interference. An attempt to tamper with this privilege through bribery undermines the independence of Members and, by extension, of the House itself, and amounts to a contempt of Parliament. As such, this Standing Order, in referring to an attempt at bribery as “a high crime and misdemeanour” tending to the “subversion of the Constitution”, underlines the gravity with which the House views the offence.

Few recorded instances of attempted bribery exist. In an early instance, a Member rose in the House to say that someone had attempted to buy his vote. The House immediately ordered the accused party taken into custody, but Parliament was prorogued before the individual could be questioned at the Bar, and the matter was never again taken up. [1] In a more recent instance, it was alleged that a bribe had been offered to a Member on condition that he change his party allegiance by crossing the floor of the House. The Standing Committee on Privileges and Elections was ordered to study and report on the charge, but on investigation concluded that the allegation was unfounded, and the matter went no further. [2]

Instances where a Member accepts the offer of a bribe or even arranges for one in consideration of his or her work in Parliament are not foreseen by the rule, although such actions could also be viewed as a breach of privilege. This could also be seen as a violation of the Conflict of Interest Code for Members, appended to the Standing Orders, which prohibits Members from furthering their private interests in the execution of their duties. [3] The Parliament of Canada Act makes illegal the attempt at bribery and the acceptance of a bribe and sets out penalties where the law has been broken. [4]

Historical Summary — Standing Order 23(1)

There are no reported instances where the House has agreed that this Standing Order has been breached. In two cases, however, allegations to this effect were made. The first occurred on November 3, 1873, when Mr. Cunningham, the Member for Marquette, stated in the House that he had been approached by Ottawa Alderman Heney, with an offer of a large sum of money if he voted with the government in an impending division. Upon hearing this, the House immediately ordered the Sergeant-at-Arms to take Mr. Heney into custody. [5] When the Sergeant-at-Arms appeared with him the next day, the House, being in the midst of a heated debate on the Pacific Scandal charges, merely ordered that Heney “remain in attendance until called”. [6] Three days later, a motion was finally moved that he be brought to the Bar. At that moment Black Rod arrived to summon the House to hear a prorogation speech. A new government had found it necessary to prorogue because of the great number of vacancies created upon the assumption of office of the new ministry. [7] Soon after, Parliament was dissolved, and when the new House was returned, it did not further investigate the affair.

It was not until 1964 that another formal allegation of attempted bribery was made. [8] In this case, a Member rose on a question of privilege and gave an account of a meeting he had had with an organizer from another party. The organizer, he said, had offered him “a fat electoral fund” if he crossed the floor. [9] The matter was allowed to stand over to the next day, when another Member claimed that if accurate, the alleged incident constituted an attempt to bribe a Member of the House. [10] The allegation was referred to the Standing Committee on Privileges and Elections for study, which found no evidence of attempted bribery when it reported several weeks later. [11]

Apart from these two incidents, there have been many other cases in which allegations of accepting bribes in exchange for favours or influence formed the substance of motions against Members by their colleagues. [12] As such, the Standing Order, which specifies only the “offer” of bribes and not their acceptance, did not come into play. Instead, the Parliament of Canada Act pointed to the illegality of certain Members’ actions. [13] Although corruption in the execution of a Member’s duties is nevertheless a breach of privilege, [14] the distinction between the Standing Order and the Act prevails today; i.e., the Act applies both to the offer and acceptance of a bribe, whereas this Standing Order mentions only the former. In addition to the provisions of the Act, since 2004, a Conflict of Interest Code for Members has been appended to the Standing Orders. Among other things, the Code specifies that Members may not further their private interests in the execution of their duties. [15]

The Standing Order’s content has not changed since 1867, although its designation has varied twice. From 1867 to 1876 it was put forward at the beginning of each session as a Sessional Order. Between 1876 and 1906 it was an unnumbered Standing Order, after which time it was assigned a number.