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Paper. S-124

SENATE CO4ITTEEON "OPENNESS OF SENATE"

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At the Senate Meeting of March 4, 1968, the Committee, in

consultation with the Chairman of Senate, was asked to draw up rules,

procedures and arrangements for conducting open meetings of Senate for

acceptance at the April meeting of Senate, with the May meeting to

be the first open meeting.

This Committee respectfully presents its report upon the

above matters.

J.L. Dampier

M.A. Lebowitz

John Walkley - Convenor

Stan Wong

1 April, 1968

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1. RULES PERTAINING TO VISITORS

It was agreed that the 'rules' concerning visitors must be

kept simple and that the behaviour of visitors must be left to the

good taste of our visitors. Senate retains at all times the right to

go into recess and reconvene in closed session. This is a simple and

adequate way of Senate indicating that it disapproves of any attempt

by a visitor or visitors to interfere with the business of Senate.'

We suggest then that the following 'rules' are sufficient:

(1) that visitors are expected to be seated before the

start of a Senate meeting;

(ii)

that visitors can leave or enter the meeting chamber at any

time they wish but are advised to do so between agenda-items;

(iii)

that at all times visitors conduct themselves in such a

manner as not to interfere with the business of Senate.

2. THE OPERATION AND AGENDA OF SENATE MEETINGS

(i)

That the agenda for Senate meetings shall be split into two:

that for the' open session, which shall. he publicly displayed,

and that for the ',losecl sessoii which shall have the

circulation of the present Minutes:

(ii)

that supporting docnments for items in open or closed session

shall continue to have only the present circulation:

(iii)

that an agenda item called "Confidential matters" shall be

placed as a regular item at the end of the agenda for the open

session and at this item Senate moves into closed session;

(iv)

that the placing of agenda items into closed session shall be

left'to the discretion of the Registrar but that a Senator can

request any item placed upon the agenda by himself to be put into

the open or the closed session;

(v)

that upon any request that Senate move into "special session"

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or of the "committee of the whole" then the discussion of that

item be stopped and the item transferred to become the first

item of the immediately following closed session;

(Vi)

that at any

timeAan

item in the agenda of the open session, can

be placed into the following closed session by a successful

motion to have it so placed,

the motion requiring only a simple

majority. The motion may be spoken to only by the mover and by

one other person who wishes to speak against the motion.

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similar procedure shall be followed if it

wished that an item

be moved from the closed to the following open session;

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2. (vii) that the part played by any individual

in closed session remain

always private to Senate. Minutes of the closed session should

read as the present Senate Minutes. Any vote taken in closed

session shall be recorded by numbers only unless any person

wishes to have his vote registered.

ARRANGEMENTS FOR OPEN MEETINGS

This Committee felt that the present seating of members of

Senate is had and that Senate might find it sensible to discuss this

matter.

With regard to open Senate we recognise that there will be

a large variation, from meeting to meeting, in the numbers of visitors

we might expect. The present room, the Board Room, could hold at the

most

30 visitors. The inner Faculty dining room, though of the same

floor area could be made to hold more visitors. It is also likely that

in this room a U-shaped table configuration could be used and that a

better seating arrangement for the Senators would result. We have discussed

the possible use of small lecture theatres for Senate meetings but

recognise that the added problems (mostly concerned with audibility)

militate against their use.

If we wish to allow for a large number of visitors we find

three possible alternatives:-

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(i) to continue to hold Senate meetings in a relatively small

room (the Board Room or the Inner Dining Room) and to

transmit the proceedings to a larger auditorium. Some

difficulties must be overcome if this is to be at all

successful;

(ii)

to use the regular Faculty Dining Room (i.e. the Outer

Dining Room) and to open this on to the Faculty Lounge.

It is then possible to seat Senate comfortably and adequately

in the Dining Room area and to seat visitors in the Lounge area.

This solution might face some accoustical difficulties but has

the tremendous advantage that the visitors' gallcry'is now

well separated from Senate;

(iii)

to make use of the theatre. The implications of this are

obvious, the advantages and the disadvantages are equally

obvious.

The Committee suggests:

(i)

that all visitors be admitted to the Senate meeting by showing

a pass-card. This pass-card is to be issued generally, before

each meeting, at the main desk in the Registrar's Office.

Certain visitors (e.g. the Press) should have a permanent card;

(ii)

the number of pass-cards is obviously limited to the accommodation

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available but after all cards have been issued a list of those

requesting cards should be kept. If the demand is sufficiently

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large

then the location of that particular Senate meeting

should be changed in an attempt to try and satisfy the

demand;

that inasmuch as the Senate meeting of May 6th is likely to

attract a fairly large number of student visitors and that the

Press, generally, will wish to attend, the alternative (ii)

above be adopted (use of the main Faculty Dining Area with

visitors in the outer Lounge.

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OON 0. SIRUM

TELEPHONE: 602-3106

L. KCITH LIODLE

SHOLTO HC8ENTON

&.*_-h1L.4.

I,7C.€ E'_C.—'

R. PAUL EIECMANN

DERBY

SIIRtTM, LIDDLE & 1IEBENTON

Paper S-124(a)

eARRISTERS AND SOLICITORS, 1614 BURRARD BUILDING. IOO WEST GEORGIA ST..VANCOUVER

S. B.C.

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March 29, 1968

Simon Fraser University

Burnaby 2, B. C.

Attention: Mr. D.A. Meyers, Acting Registrar

Dear Sirs:

Re: Senate Privilege

You have inquired concerning the applicability

of parliamentary immunity to Senators speaking at open

meetings of the Senate at Simon Fraser University. You

have also inquired about other implications or procedures

of which you should be aware in conducting open meetings.

First, the matter of immunity. Parliament

itself and certain other bodies such as courts enjoy a

form of immunity known as absolute privilege. The effect

of absolute privilege is that a speaker cannot be held

liable for defamation even if, in speaking falsely about

some person, he knew he was speaking falsely. This form

of immunity does not apply to the Senate at Simon Fraser

University.

Fortunately there is a second type of immunity

termed qualified privilege which does protect Senate

meetings. A person speaking with the protection of

qualified privilege will not be liable for a false state-

ment if he did not know it was false. That is,- the

speaker may speak falsely as long as-he speaks honestly.

The privilege is defeated if the speaker spoke with "malice".

The concept of malice has escaped precise judicial defi-

nition. Courts find malice if the speaker was influenced

by spite or improper motive. Malice may be found from

the relations between the parties or if a speaker's

statement is in ecess of what the occasion warrants or -

if it is unnecessarily violent or abusive. Further,.in

order to retain the shield of qualified privilege the

statement must be relevant.. A favorite example used in

the cases (and taken from a case involving absolute not

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qualified privilege) is the question and answer "Were you

at York on June 1st? Yes, and X picked my pocket there."

The remark about X is not protected. So the speakers in

the Senate should be relevant.

We should also point out that truth is a com-

plete defence to any action for defamation. Any person

is free to injure the reputation of any other person as

long as the words spoken are true.

In summary, as far as civil liability is con-

cerned, Senators may with confidence speak freely as long

as they are sure of the truth of their statements. Even

if they cannot be sure, they may still speak if they

honestly believe what they say, their comments being

relevant and not affected by any malice.

The criminal law as well as the civil law

imposes restrictions on freedom of speech. There is a

crime known as defamatory libel which roughly corresponds

to the civil action. With respect to a speech in the

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University Senate honest belief in the truth of the state-

ment would be a defence to a charge alleging this crime.

The Criminal Code contains a host of other restrictions

on free speech. Among the crimes involving speech are

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extortion, blasphemous libel, counselling an offence,

conspiracy to murder, conspiracy in restraint of trade,

inciting to mutiny, spreading false news, giving false

alarms and causing a disturbance by screaming, shouting,

swearing, singing or using insulting or obscene language.

However we doubt whether a charge involving any of these

matters would ever be laid with respect to a speech in

the Senate. There is one matter which might be referred

to, sedition. The laws on sedition should not inhibit

free discussion on matters of government-university

relations because, notwithstanding a rather nebulous

definition of sedition, the Criminal Code excuses a person

who intends, in good faith,

(a) to show that Her Majesty has been misled

or mistaken in her measures,

(b) to point out errors or defects in

(i)

the government or constitution of

Canada or a province,

(ii)

the Parliament of Canada or the

legislature of a province, or

• (iii) the administration of justice in

Canada,

of any matter of government in Canada, or

(d) to point out, for the purpose of removal,

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matters that produce or tend to produce

feelings of hostility and ill-will between

different classes of persons in Canada.

Finally, you have inquired whether there are

any other implications or procedures of which you should

be aware in conducting public meetings. We have done our

best to canvass the whole range of the law. It is

impossible to be absolutely certain but there do not

appear to be any further legal issues which should be

brought to your attention. Some of the Senators, for

example, might have information hich-i-f released in the

Senate would make them subject to prosecution under the

Official Secrets Act. But we presume that in thesend-\

other particular circumstances the individual Senators

will be aware of any limitations on their actions.

As far as procedures are concerned, the

procedures which you have been using in private meetings

will be satisfactory together with those procedures which

you outlined in your letter of March 13th requiring

orderly behaviour on the part of visitors.

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We close by noting that for convenience in

this letter we have referred to all Senate proceedings

as "speech". We appreciate that muóh of the Senate's

business is conducted through written material. Though

there are some technical differences in the legal treatment

of spoken and written words, the general principles con-

cerning liability and privilege which we have described

in this letter apply equally to both.

Yours truly,

SHRUM, LIDDLE & HEBENTON

Sholto Hebenton

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