Dear David Amos

Today was the first day of the Fall Session of the Legislature. My team and I have a full slate of work prepared to bring the real issues facing the people of Cumberland North to the Legislature. I will strive to bring forth the voices of the people I was elected to represent. 

Unfortunately, I continue to face possible removal from the Legislature despite being democratically elected by the people of Cumberland North. In the spring, the MLA from Pictou West, Karla MacFarlane, tabled Resolution 598. This resolution asks for my removal. Although the government has not called it for a vote, it sits on the order paper and can be called for a vote any day we are in the Legislature. Today, I stood in the Legislature and read a Point of Order outlining why Resolution 598 is unconstitutional and should be removed from the Order Paper. The Leaders of the Liberal and NDP Caucus and MLA Kelly Reagan stood and spoke to support democracy and fully supported my Point of Order to remove this unconstitutional Resolution. They believe it is a form of threat against me. The Deputy Speaker will make a ruling on this soon. In the meantime, I will continue to work for you and do my absolute best every day. 

I will share my work on behalf of my constituents regularly while I am in the Legislature. 

For those interested in my Point of Order, please see below. Also, you can watch my speech along with my colleagues on NS Leg TV. It starts at the 2:00:05 hour mark. 

https://www.youtube.com/live/3EJAODFvth4?si=RCOyxiR-67potonN.


While I am in the Legislature, the constituency office is still open at 5 Ratchford Street, Amherst, NS; the phone number is 902-661-2288. You can email me anytime. You can also contact my Constituency Assistant Dan Gould, assistant@esmithmccrossinmla.com

Sincerely, 

Elizabeth Smith-McCrossin

(Condensed version which was read)

POINT OF ORDER – That Resolution No. 598 (April 3, 2023) is Out of Order

Madame Speaker, I rise on a Point of Order with regard to a Motion currently on the Order Paper –
Resolution No. 598 of April 3, 2023 – and ask that the Motion be found out of order and removed from
the Order Paper in accordance with s.37 of the House of Assembly Rules.

With your indulgence, and noting that my Point of Order has been provided to your Office and to the
three House Leaders yesterday, I would like to put on the record my rationale for this Point of Order and
ask that you take this under consideration and provide a written decision in a timely manner.
As briefly as possible, while noting key procedural aspects, I submit the following rationale as to why
Resolution No. 598 is not in order. In addition, I am tabling a more detailed version of this argument,
with references to relevant authorities, and ask that the tabled version form the basis of my position
when you consider this Point of Order.

The resolution states that “the member for Cumberland North misled the House, and that she
not be allowed to take her seat until such time as she retracts her comments and apologizes. ”

First, it is submitted that Resolution No. 598 is unconstitutional. A resolution of this House cannot be in
order if the substance of the resolution would be a violation of the Constitution. Specifically, I note s.17
of the Constitution Act, 1867, s.9 of the Bill of Rights of 1689 and the Supreme Court of Canada’s
interpretation of Freedom of Expression
The Constitution of Canada recognizes the parliamentary privileges as defined by the UK House of
Commons at the time of the adoption of the Act in 1867. Those rights and privileges are defined to
include Freedom of Speech.

Freedom of Speech, as defined in Canada, includes the freedom not to speak or otherwise compelling a
Member of this House to take an action that requires that Member to do something, such as apologize,
to which the member is not so inclined. Since the adoption of the Charter of Rights & Freedoms in 1982,
s.2(b) of the Charter creates a right to freedom of expression. That right has been defined by the
Supreme Court of Canada to include the right not to speak or act.

Therefore, the law of Canada recognises freedom of expression to include the freedom not to express.
Resolution No. 598, if passed, would require a Member of this House to utter an apology, which would
violate my parliamentary privilege of freedom of speech and would be unconstitutional. As such, the
resolution is not in order.

Second, what is being proposed in Resolution No. 598 is akin to a motion to find a Member in contempt
of the House. Since the House of Assembly Rules are silent as to how such matters are raised, it is
incumbent on this House to consider how such matters are addressed by the Canadian House of
Commons Standing Orders and the Standing Orders and practices of the United Kingdom’s House of
Commons.

Under the Canadian House of Commons procedures, the raising of a matter of contempt by a Member
acknowledges that such a motion must state that the matter, if the motion is passed, will be sent to the
appropriate committee in charge of issues of privilege for investigation. In precedence dating back to the 
19th Century, the House of Commons has routinely dealt with matters of a question of contempt of a
Member by way of a motion to refer the issue to a committee for investigation.

In addition, as noted in Maingot’s Parliamentary Immunity in Canada, it is the standard procedure that a
motion to find a member in contempt, if passed, shall go to a committee of the House for investigation
and recommendation. A similar approach has been standardised in the UK House of Commons as well.
Since Resolution No. 598 does not provide for the issue to be sent to a committee for investigation, I
submit the resolution is out of order.

Third, Resolution No. 598 is out of order because it does not allow the member to whom an accusation
of contempt has been made to have the right to respond to such an accusation in accordance with
procedural fairness or the principles of natural justice. In short, Resolution No. 598 does not give the
accused his or her “day in court”. In the case of this House, that would mean a hearing conducted by the
Committee on Internal Affairs in which the accused member could testify, have the right to counsel and
otherwise respond to the accusations made in a motion for contempt.

Again, the House Rules are silent on this issue, but we can turn to the practices and procedures of the
UK House of Commons to see that procedural fairness has been accepted as an integral component of
an investigation in the accusation of contempt by a Member. As noted in Erskine May, in 1999 and in
2013 UK House of Commons committees looking into this issue confirmed the need for procedural
fairness when a member is facing potential suspension.

Fourth, it is submitted that Resolution No. 598 is out of order and cannot be placed on the Order Paper
for possible calling for debate because such a motion must take precedence over other debates in the
House. Since the Resolution has not been called for debate for more than six months, the motion is out
of order for not being debated and the accusation of contempt being adjudicated by the House and its
Committee on Internal Affairs in a timely manner. In short, a resolution making an accusation of
contempt must be debated forthwith. If not, it is out of order as a result of the delay.

Finally, I raise this Point of Order because there is something inherently inappropriate about a motion in
this House that, if debated and passed, would allow for a Member of this House to be suspended
indefinitely with no opportunity to defend oneself or to have the matter adjudicated by a committee of
this House. If this motion is in order, it begs the question, what is stopping any government from using
its parliamentary majority to systematically move a motion to suspend a member from the House
indefinitely against every member of the opposition in order to eliminate the opposition bench, a key
tenet of a democratic system?

I ask that you take into consideration these arguments and I ask your indulgence to reserve your decision
on this Point of Order until a written decision can be produced.