Chapter 3Privileges and Immunities

Rights of the House as a Collectivity

As a collectivity, the House of Commons has a certain number of rights which it claims or which have been accorded to it by statute. For example, the House claims the right to institute inquiries into any matter, to require the attendance of witnesses, and to order the production of documents. The Parliament of Canada Act²⁶⁰ confers the right to administer oaths to witnesses.

The rights and powers of the House as a collectivity may be categorized as follows:

the regulation of its own internal affairs;
the authority to maintain the attendance and service of its Members;
the power to discipline;
the right to institute inquiries and to call witnesses and demand papers;
the right to administer oaths to witnesses appearing before it; and
the right to publish papers without recourse to the courts relating to the content.

The two most dominant rights or powers are the right of the House to regulate its own internal affairs and the power to discipline.

Regulation of Internal Affairs

The exclusive right of the House of Commons to regulate its own internal affairs refers to its control of its own debates, agenda and proceedings as they relate to its legislative and deliberative functions.²⁶¹ This right was affirmed in 1993 in New Brunswick Broadcasting Co. v Nova Scotia (Speaker of the House of Assembly)²⁶² and has since been reaffirmed in a number of important court decisions, including Canada (House of Commons) v Vaid in 2005, Knopf v Canada (House of Commons) in 2006, and Association des juristes de l’État c Québec (Procureur général) (Secrétariat du Conseil du Trésor) in 2009.²⁶³ Indeed, in the Vaid decision, the Supreme Court noted that the categories of privilege include:

… control by the Houses of Parliament over ‘debates or proceedings in Parliament’ (as guaranteed by the Bill of Rights of 1689) including day-to-day procedure in the House, for example the practice of the Ontario legislature to start the day’s sitting with the Lord’s Prayer… .²⁶⁴

The House of Commons can make and change its own rules and manage its internal affairs without outside interference. Its internal procedures and rules as contained in the Standing Orders, special orders or Speakers’ rulings are protected by parliamentary privilege and cannot be questioned by the courts or any place outside of Parliament.²⁶⁵ The House of Commons is free from judicial review of its decisions when these are made pursuant to a Standing Order, special order, sessional order or resolution. Recent attempts to review the actions and decisions of the House of Commons or its committees have been rejected by the courts. In 1999, the Ontario Court (General Division) dismissed an action brought against the House for a resolution it had adopted restricting an individual from the precincts of Parliament.²⁶⁶ In 2006, the Federal Court upheld the right of parliamentary committees to adopt and enforce their own internal procedures.²⁶⁷

In 2009, a statutory officer of the Newfoundland and Labrador House of Assembly applied for a declaration entitling her to a hearing before the legislature in the event that a resolution was tabled in the House of Assembly calling for her removal from office. The Supreme Court of Newfoundland and Labrador, Trial Division, dismissed the application on the grounds that it did not have the authority to give its opinion on how the House of Assembly should conduct its proceedings and its debates. The conduct of debate in a legislative chamber is protected by parliamentary privilege and is outside the jurisdiction and scrutiny of the Court.²⁶⁸

This is also true of Speakers’ rulings interpreting such orders or resolutions. Thus, if Members feel that the rules of the House are not being applied as they would wish, there is no appeal to the courts.²⁶⁹ If the Standing Orders are breached, the only place to raise the point of order is in the House of Commons. Neither is a Speaker’s ruling on such a point of order reviewable by the courts.

The right to regulate its own internal affairs does not mean that the House is above the law. However, where the application of statute law relates to a proceeding in Parliament or a matter covered by privilege, it is the House itself which decides how the law is to apply and the House’s decision cannot be reviewed in the courts.²⁷⁰

Right to Regulate and Administer Its Precinct

The privileges of the House of Commons include “such rights as are necessary for free action within its jurisdiction and the necessary authority to enforce these rights if challenged”.²⁷¹ It is well established that, by extension, the House has complete and sole authority to regulate and administer its precinct, without outside interference, including controlling access to the buildings.²⁷²

Process servers ordinarily may not enter the precinct in order to serve a subpoena or other legal process on anyone without the permission of the Speaker.²⁷³ This was most forcefully stated by Speaker Fraser in a ruling given in May 1989 involving the service of a subpoena and the rights of Members appearing as witnesses in court.²⁷⁴ Speaker Fraser asserted that, since the permission of the Speaker had not been sought nor obtained for the service of a subpoena on a Member, it had been improperly carried out. The Speaker cautioned Members not to accept service of their own accord within the Parliamentary Precinct. If they wished to waive their parliamentary immunity, they could do so by leaving the precinct and accepting the service elsewhere. He noted that to do otherwise was “to put at risk our ancient privileges … [which] are part of the law of Canada”. Furthermore, he cautioned “those who attempt to further improper service of subpoenae, that they may be acting in a manner that is in contempt of the House”.²⁷⁵

Police forces also may not enter the precinct to investigate the commission of an offence without permission from the Speaker. Cases have arisen where representatives of outside police forces have wanted to enter the Parliamentary Precinct for purposes of making an arrest, conducting an interrogation or executing a search warrant within the terms of the Criminal Code. The Speaker has the authority, on behalf of the House, to grant or deny outside police forces permission to enter the precinct, and oblige police to seek this permission prior to conducting their business.

The House of Commons cannot be used to give a Member sanctuary from the application of the law. Even the floor of the Chamber of the House is not a sanctuary and the application of the law, particularly in criminal matters, is foremost.²⁷⁶ It is not the Parliamentary Precinct but the function being carried out which is protected.²⁷⁷ A Member cannot be arrested within the Parliament Buildings without the permission of the House, but can be arrested on the grounds surrounding the buildings, as suggests the 1965 case of Gilles Grégoire (Lapointe) who was arrested for non-payment of traffic fines.²⁷⁸

The Execution of Search Warrants in the Precinct of Parliament

The Speaker is placed in a sensitive position when police officers attend at the Parliament Buildings in order to execute a search warrant. The Speaker must ensure not only that the corporate privilege of the House to administer its affairs within the precinct is not infringed, but also that the privileges of individual Members to participate freely in the proceedings are not compromised. At the same time, the Speaker must be careful not to be seen as obstructing the administration of justice.

In practice, the police recognize that the law does not allow them to enter the Parliament Buildings without the permission of the Speaker. For the police to bypass the Speaker in order to execute a search warrant (even if the Speaker, in the end, would have allowed them to enter for that purpose) could amount to a breach of privilege and possibly a contempt of the House. The Speaker therefore personally examines every search warrant that the police wish to execute within the precinct.

A distinction exists between the Speaker acting on behalf of the House and its Members and other citizens faced with the same situation when the police wish to execute a search warrant. Whereas the police must produce a warrant upon request in the ordinary case, the law requires the police to present themselves to the Speaker before searching a particular Member’s office within the Parliamentary Precinct in order for the Speaker to be satisfied that the search is lawful. The Member concerned also has a right to a copy of the search warrant.

This authority to grant or deny permission was established in two separate incidents which occurred in the 1970s. The first case occurred in 1973 when the parliamentary office of Flora MacDonald (Kingston and the Islands) was visited by the Ottawa city police and the RCMP. The two police forces were inquiring about documents missing from the Department of Indian Affairs and had not previously sought permission from the Speaker to do so. Miss MacDonald raised a question of privilege which was found prima facie, and the matter was referred to the Standing Committee on Privileges and Elections for study.²⁷⁹ In its report to the House, the Committee stated:

It is well established that outside police forces on official business shall not enter the precincts of Parliament without first obtaining the permission of Mr. Speaker who is custodian of the powers and privileges of Parliament. … The Committee must find that the question of privilege of the House of Commons is well founded.²⁸⁰

The Committee stopped short of finding the police force in contempt of the House, on the grounds that they acted in good faith. Rather, they recommended to the Speaker that he “remind outside police forces and the security staff of the House of Commons of their respective obligations in this regard, and that no further action be taken”.²⁸¹ While the report of the Committee confirmed the necessity for outside police forces to seek the permission of the Speaker prior to entering the precinct of the House, it was not until six years later, in another Parliament, under another Speaker, that the House was to hear confirmation that the permission police forces were obliged to seek was not in any way a mere formality, but indeed involved a very conscious exercise of discretion on the part of the Speaker.

In 1979, Terry Sargeant (Selkirk–Interlake) raised a question of privilege regarding an RCMP request to the Speaker to conduct a search of the Member’s Parliament Hill offices for copies of a leaked document. Having confirmed that the RCMP had indeed requested his permission to search the office, Speaker Jerome found that there was no prima facie breach of privilege and indicated to the House that he had exercised his discretion to refuse permission for the execution of the warrant:

To my understanding, the reason for the presence of any discretion in the Speaker is because, in this situation, the rights of the police force, which may be legitimate, come into collision with the rights of the member which are obviously equally legitimate. … What I have done, therefore, is to take the position that, where no charge has been laid against a member and there does not appear to be the investigation of an actual offence against him, but rather an investigation which may be part of another set of circumstances, initially I have exercised my discretion against the execution of the warrant in these premises in the office of a member. On the other hand, I would think that in the more extreme cases, where there is an allegation of an offence by a member and it is in the enforcement or investigation of a specific and formal charge against a member, I might be facing a different situation. Obviously that would depend on the nature of the charge and the actual circumstances.²⁸²

In making this statement, Speaker Jerome underscored the limits of the Speaker’s authority in matters of privilege. It is not the Speaker but the House itself which determines the extent of Members’ privileges and decides when a breach has occurred. It would appear that the role that the Speaker plays in deciding whether a prima facie case of privilege exists constitutes a close parallel to the exercise of discretion in granting police forces entry to the precinct of the House. In both cases, the Speaker must keep in mind that the final authority on such matters rests with the House itself, which by its disposition of the matter will reflect on the Speaker’s preliminary determination.

In 1989, a number of search warrants were executed on Parliament Hill involving investigations related to Members’ use of their office budgets and other services available to them. These investigations led to much media speculation and were the cause of great concern to Members. As a result, the House established a special committee to “review the Parliament of Canada Act regarding the powers, duty and obligations of the Members of the House in relation thereto and regarding the authority, responsibilities and jurisdiction of the Board of Internal Economy”.²⁸³ As part of the recommendations included in its Third Report, which dealt exclusively with procedures surrounding the execution of search warrants within the Parliamentary Precinct, the Special Committee on the Review of the Parliament of Canada Act stated:

The privileges, immunities and powers of the House of Commons and its Members are established by section 18 of the Constitution Act, 1867, and section 4 of the Parliament of Canada Act. These privileges are intended to enable Members of Parliament to carry out their functions and activities and to represent Canadians. These privileges, immunities and powers must be considered and respected in the execution of search warrants …²⁸⁴

By unanimously adopting the Special Committee’s Third Report,²⁸⁵ the House reaffirmed the following principles respecting the execution of search warrants:

Well-established parliamentary tradition provides that search warrants may be executed within the Parliamentary Precinct only with the consent of the Speaker.
The Speaker may withhold or postpone giving his or her consent if it is determined that the execution of the search warrant will violate the collective and individual privileges, rights, immunities and powers of the House of Commons and its Members by interfering with the proper functioning of the House of Commons.
A search warrant must be executed in the presence of a representative of the Speaker who ensures that a copy of it is given to any Member whose affairs are subject of the search, at the time of the search or as soon as practicable thereafter.²⁸⁶

Throughout this process, the Speaker can do no more than ensure that the search warrant is lawful “on its face” and that it is executed according to its terms. In no sense does the Speaker enjoy the right to review the decision to issue the warrant in the first instance. To do so could amount to an obstruction of justice and would undeniably blur the distinctions between Parliament as a legislative body on the one hand and the judicial and executive functions in respect of the issuance of the search warrant and the administration of justice on the other.

In the examination of a search warrant, there are two major considerations which the Speaker takes into account: the procedural sufficiency of the search warrant and the precise description of the documents sought under the search warrant.²⁸⁷ Essentially, the Speaker’s role in reviewing a search warrant is restricted to an examination based on form and content and to ascertaining if the execution of the warrant could otherwise result in a breach of privilege.

The Authority to Maintain the Attendance and Service of its Members

This privilege is the underlying premise for the individual Member’s privileges of exemption from jury duty and exemption from being summoned to appear as a witness. Maingot notes: “… the Parliament of Canada has first call on the services of its Members and, except in the case of criminal matters or breaches of provincial statutes (quasi-criminal) … Parliament will not tolerate impediments to Members who are on their way to attend the sittings”.²⁸⁸

The Standing Orders of the House of Commons provide that every Member is bound to attend the sittings of the House unless otherwise occupied with parliamentary activities or functions or on public or official business.²⁸⁹ Because the House sits during prime working hours, scheduling conflicts with other parliamentary or official commitments (for example, committee meetings) may prevent Members from being present in the Chamber. In practice, considerable leniency is exercised in this regard. Indeed, the Chair has often discouraged any references to the absence of any individual Member.²⁹⁰ As the attendance of Members is seen to be a function of the party leadership usually through the Whip or as a matter of personal obligation if the Member is without party affiliation, it is rarely necessary for the House as a whole to take action in this regard.

Power to Discipline

Closely related to the right of the House to regulate its own internal affairs and its authority to maintain the attendance and service of its Members is the House’s right to discipline its own Members for misconduct and the power to punish anyone for interfering with the conduct of parliamentary business (which it considers to amount to a breach of privilege or contempt). While Article 9 of the Bill of Rights, 1689, gives both Members and “strangers”²⁹¹ protection from outside interference when engaged in the business of the House, it also subjects them to the disciplinary power of the House for their conduct during proceedings.²⁹² May notes that the power to punish for contempt probably originated in medieval times when the English Parliament was primarily a court of justice.²⁹³ This power affords the House a wide range of penalties for dealing with misconduct. Non-Members (“strangers”) may be removed from the galleries of the Chamber or from the Parliamentary Precinct,²⁹⁴ be given a reprimand, or, in theory, ultimately be incarcerated. Members may be called to order, directed to cease speaking because of persistent repetition and irrelevance in debate, “named”²⁹⁵ for disregarding the authority of the Chair and suspended from the service of the House, incarcerated, or even expelled. The disciplinary power of the House is regulated to some extent through the Standing Orders so that each case need not be raised formally in the House in order to be dealt with efficiently.²⁹⁶ For example, this disciplinary power allows the House, through its senior officials, to refuse entry to a stranger who, on previous occasions, has been guilty of misconduct in the public galleries or corridors.

In addition, the conduct of Members is regulated in part by the Conflict of Interest Code for Members of the House of Commons.²⁹⁷ For example, Members are required to disclose a private interest in a matter before the House or a committee and to refrain from participating in debate or voting on the question.²⁹⁸ If a Member has reasonable grounds to suspect that another Member has not complied with the Code, he or she may ask the Conflict of Interest and Ethics Commissioner to conduct an inquiry into the matter. The Commissioner submits a report on the results of the inquiry to the Speaker for tabling in the House. If the Commissioner concludes that the Member has deliberately contravened the conflict of interest guidelines set down in the Code, the Commissioner may recommend appropriate sanctions. The Member is then subject to the disciplinary powers of the House, if the House chooses to take action.²⁹⁹ Since the Conflict of Interest Code for Members of the House of Commons came into force at the beginning of the Thirty-Eighth Parliament, no sanctions have been imposed on Members found to have contravened it.

Individuals who come within the jurisdiction of the House, whether strangers, staff or Members themselves, are subject to its discipline for any form of misconduct not only within the Parliamentary Precinct but also outside.³⁰⁰ For example, sittings of a committee outside the precinct would be covered by the disciplinary power of the House.

Though a keystone of parliamentary privilege, the power of the House to discipline is nevertheless limited. Historically, the House has had the right to reprimand and to imprison only until the end of the session and it did not have the power to impose fines.³⁰¹ Parliament has been reluctant to use these powers and such cases have been rare. In the event of incarceration, the accused would remain imprisoned until he or she has complied with the order of the House or until the end of the session.

Censure, Reprimand and the Summoning of Individuals to the Bar of the House

Individuals may be summoned to appear at the Bar of the House for an offence against the dignity or authority of Parliament, if the House adopts a motion to that effect. When summoned, the individual stands at the Bar, a brass rod extending across the floor of the Chamber inside its south entrance beyond which strangers are not allowed. The House has ordered some Members to attend in their places in the House and has also summoned Members to the Bar of the House to answer questions or to receive censures, admonitions or reprimands. Although, at first view, this may not appear to be a punishment, the summoning of a Member to attend in his or her place or of an individual to appear at the Bar is an extraordinary event which places the Member or individual under the authority of the House vested with its full disciplinary powers.³⁰²

On a number of occasions in the late 19th and early 20th centuries, individuals were summoned to appear before the Bar of the House in order to answer to the authority of the House:

In 1873, James Bell, a returning officer, was summoned to appear before the Bar to answer for his actions in a contested election. He appeared, asked and received permission to have counsel, and answered questions on three occasions. The House later adopted a resolution criticizing Mr. Bell’s actions. He was recalled to the Bar; the resolution was read out to him and he was discharged.³⁰³
Again in 1873, the editor of the Courrier d’Outaouais newspaper, Elie Tassé, who was also a sessional employee of the House of Commons, was ordered to appear before the Bar of the House to answer questions about an article reflecting on two Members of the House. Mr. Tassé appeared, answered questions and was then directed to withdraw.³⁰⁴
In November 1873, the Sergeant-at-Arms was ordered to take Ottawa Alderman John Heney into custody and bring him to the Bar of the House for attempting to bribe a Member. Mr. Heney was held in custody from November 4 to November 7, 1873, but he never appeared at the Bar as Parliament was prorogued on November 7.³⁰⁵
On March 31 and April 1, 1874, Louis Riel (Provencher) was ordered to attend in his place in the House for having fled from justice in the matter of the Red River Rebellion and the murder of Thomas Scott. He failed to attend and was later expelled from the House. Three witnesses (the Attorney General of Manitoba and two Ottawa police officers) were summoned to appear at the Bar in relation to the Riel matter. All three appeared and were questioned.³⁰⁶
In 1879, a visitor in the gallery, John Macdonnell, directed offensive remarks to a Member and, having been removed from the gallery, repeated the remarks in a note delivered to the Member at his place in the House. As a result, he was summoned to appear at the Bar, whereupon he apologized. He was directed to withdraw and the House then adopted a motion stating that Mr. Macdonnell had breached the privileges of the House, but that no further action was necessary in light of the apology. Mr. Macdonnell was recalled and the resolution was read to him before he was discharged from further attendance.³⁰⁷
In May 1887, John Dunn, a returning officer, was asked to appear before the Bar to answer for his conduct during an election. Mr. Dunn received the permission of the House to have counsel and answered many questions. He was discharged and no further action was taken.³⁰⁸
In 1891, Michael Connolly, a witness before the Privileges and Elections Committee, attended as requested with certain documents which he refused to put into the hands of the Committee. The Committee reported this to the House and requested “the action of the House”. A motion was then moved and adopted for Mr. Connolly to appear before the Bar. He appeared, was questioned, granted counsel, and ordered to produce the books of account requested by the Committee.³⁰⁹
Again in 1891, the Public Accounts Committee reported that André Senécal, an employee of the Government Printing Bureau, had failed to appear when called as a witness. The House adopted a motion summoning him to appear at the Bar. When he failed to do so, the House ordered that he be taken into the custody of the Sergeant-at-Arms, who could not locate him. No further action was taken.³¹⁰
In 1894, two witnesses (Jean Baptiste Provost and Omer Edouard Larose) failed to appear when summoned as witnesses before the Privileges and Elections Committee. The Committee reported this and asked for “the action of the House”. A motion was adopted summoning the two witnesses to appear before the Bar. They failed to comply and the House ordered them to be taken into the custody of the Sergeant-at-Arms in order to be brought to the Bar of the House. They later appeared, answered questions and were discharged.³¹¹
In 1906, a Member complained about a newspaper article; it was read to the House by the Clerk and a motion was adopted summoning its author, Joseph Ernest Eugène Cinq-Mars, to appear before the Bar of the House. Mr. Cinq-Mars appeared and answered questions at two sittings of the House. The House then adopted a motion of censure against him, which was read to him before he was discharged.³¹²
In 1913, R.C. Miller, a witness before the Public Accounts Committee, refused to answer questions. This was reported to the House, whereupon it adopted a motion summoning Mr. Miller to appear before the Bar and answer questions. Mr. Miller made two appearances before the Bar and on both occasions was permitted to have counsel. He was directed to withdraw after he refused to provide the information requested by the Committee. The House then adopted a motion stating that Mr. Miller was in contempt of the House and that he should be imprisoned. Mr. Miller was again brought before the Bar and the resolution was read to him.³¹³

No private citizen has been called to the Bar since 1913.³¹⁴ However, in 1991 and again in 2002, Members were ordered to attend the Bar of the House. As sitting Members, these individuals could have received the admonishment at their assigned place, which would have been the normal practice.³¹⁵

In 1991, a Member rose on a question of privilege to allege that a contempt of the House had occurred at the adjournment of the previous sitting, when Ian Waddell (Port Moody–Coquitlam), frustrated at having missed a vote, had attempted to take hold of the Mace as it was being carried out of the Chamber. Speaker Fraser found a prima facie case of privilege, and the House adopted an order calling Mr. Waddell to the Bar of the House to receive a reprimand from the Chair. Accordingly, the Member appeared at the Bar, was admonished by the Chair and declared guilty of a breach of privilege and a gross contempt of the House.³¹⁶

In 2002, visibly unsastified with the outcome of a vote on his private Member’s bill, Keith Martin (Esquimalt–Juan de Fuca) took hold of the Mace. This action was raised as a question of privilege, a prima facie case of privilege was subsequently found by Speaker Milliken, and the House adopted a motion ordering the Member to appear at the Bar of the House to apologize for his actions. The following day, the Member appeared at the Bar of the House, the Speaker invited him by name, rather than by the name of his riding, to address the House. The Member apologized to the House and then took his seat.³¹⁷

Taking Individuals into Custody and Imprisonment

In theory, the House of Commons possesses the right to confine individuals as a punishment for contempt,³¹⁸ although it has not exercised this authority since 1913. In the years immediately following Confederation, the House ordered the Sergeant-at-Arms to take individuals into custody on four occasions and ordered the imprisonment of others. Again in 1913, the Sergeant-at-Arms was ordered to imprison an individual.

In May 1868, Henri Joly (Lotbinière) who was chosen Chairman of a select committee failed to appear when the committee was sworn in and a motion was adopted in the House ordering him to be taken into custody by the Sergeant-at-Arms. The Sergeant-at-Arms informed the House that he had been unable to comply with the Order because Mr. Joly was absent from the city and no further action was taken.³¹⁹ In 1873, two Members, Prime Minister Sir John A. Macdonald and Frederick Pearson (Colchester), failed to appear when they were to be sworn in as members of a committee. A motion was adopted in the House to have them taken into the custody of the Sergeant-at-Arms. When Mr. Macdonald appeared, Dr. Charles Tupper (Cumberland) read an affidavit into the record stating that the Member was unable to perform his duties for medical reasons. Mr. Macdonald was discharged. No further action was taken against Mr. Pearson, the Sergeant-at-Arms having informed the House that he had been unable to comply with the Order, due to Mr. Pearson’s absence from the city.³²⁰ Also in 1873, Alderman John Heney of Ottawa was held in custody from November 4 to November 7 while waiting to appear at the Bar of the House on the charge of attempting to bribe a Member.³²¹ In 1891, the House adopted a motion ordering the Sergeant-at-Arms to take Thomas McGreevy (Quebec West) into custody for failing to attend in his place to answer questions. The Sergeant-at-Arms reported back to the House two days later that he had been unable to locate the Member.³²² In 1913, the House ordered the imprisonment of R.C. Miller after he appeared at the Bar and refused to answer questions. He remained in prison for some four months until the end of the session.³²³

In 2007, Karlheinz Schreiber, who was incarcerated, was taken into custody under the authority of the Speaker to allow him to appear before the Standing Committee on Access to Information, Privacy and Ethics. The Committee had been conducting hearings into the defamation settlement that former Prime Minister Brian Mulroney had been awarded from the government in 1997 with respect to allegations that he had received kickbacks connected to Air Canada’s purchase of Airbus planes in the 1980s. The Committee wished to receive testimony from Mr. Schreiber who, while willing to attend, could not because he was being held in a detention centre awaiting deportation to Germany. In order to facilitate the witness’s attendance, the Committee presented a report to the House requesting that the Speaker issue a warrant for his appearance. The House subsequently concurred in the report.³²⁴

Expulsion

Parliamentary privilege holds Members responsible for acting in character with the function they fulfill as elected representatives. Disobedience to orders of the House, and actions such as making threats, offering or taking bribes, or intimidating persons are offences for which Members can be reprimanded or even expelled. Under section 18 of the Constitution Act, 1867, which endowed the House with the same privileges, immunities, and powers as enjoyed by the British House of Commons, the House of Commons possesses the power of expulsion. A serious matter, expulsion has a twofold purpose as explained in May:

The purpose of expulsion is not so much disciplinary as remedial, not so much to punish Members as to rid the House of persons who are unfit for membership. It may justly be regarded as an example of the House’s power to regulate its own constitution. But it is more convenient to treat it among the methods of punishment at the disposal of the House.³²⁵

Even this most drastic power has, however, its limits, as is noted in Bourinot:

The right of a legislative body to suspend or expel a member for what is sufficient cause in its own judgement is undoubted. Such a power is absolutely necessary to the conservation of the dignity and usefulness of a body. Yet expulsion, though it vacates the seat of a member, does not create any disability to serve again in parliament.³²⁶

The House may expel a Member for offences committed outside his or her role as an elected representative or committed outside a session of Parliament. As Maingot explains, it “extends to all cases where the offence is such as, in the judgement of the House, to render the Member unfit for parliamentary duties”.³²⁷

The House has expelled Members on four occasions. Louis Riel (Provencher) was expelled from the House twice. Riel had fled from justice after being charged with the murder of Thomas Scott. In the spring of 1874, the House ordered Mr. Riel to attend in his place. He failed to do so and the House expelled him.³²⁸ In the autumn of that year, he was re-elected as the Member for Provencher. Mr. Riel’s second expulsion occurred in February 1875. On February 22, 1875, an “Exemplification of Judgement Roll of Outlawry in the case of Regina vs. Riel” was tabled in the House. On February 24, after this document was read to the House, the House adopted two orders, one noting that Mr. Riel had been judged an outlaw for felony and the other ordering the Speaker to issue his warrant for a new writ of election for the electoral district of Provencher, thus expelling Mr. Riel.³²⁹

In 1891, Thomas McGreevy (Quebec West) was accused by Israel Tarte (Montmorency) of corrupt practices concerning construction work in the harbour at Quebec City, and the matter was referred by the House to the Select Standing Committee on Privileges and Elections. Mr. McGreevy refused to answer questions put to him while appearing before the Committee. The Committee reported this to the House on August 12, 1891, and requested that the House take action. On August 13, Mr. McGreevy was ordered by the House to attend in his place on August 18. On that day, Mr. McGreevy was found not to be in attendance and the Sergeant-at-Arms was ordered to take the Member into custody. On August 19, Mr. McGreevy sought to resign his seat, but the House refused to accept the resignation as his seat was being contested at the time. On September 29, the House adopted a resolution finding Mr. McGreevy guilty of contempt of the authority of the House by not attending in his place when ordered, as well as being guilty of certain other offences. The House then adopted a second resolution expelling Mr. McGreevy.³³⁰

On January 30, 1947, the House resolved that, since Fred Rose (Cartier) had been convicted of violating the Official Secrets Act and had been sentenced to serve six years in prison, he had become incapable of sitting or voting in the House. The motion also ordered the Speaker to issue a warrant to the Chief Electoral Officer to make out a writ of election to fill the vacancy. Although expulsion was not explicitly referred to in the motion, the House declared his seat vacant.³³¹

On October 31, 2014, the Ontario Court of Justice found Dean Del Mastro (Peterborough) guilty on four charges under the Canada Elections Act in connection with the 2008 federal election for wilfully incurring election expenses in excess of the campaign expense limits. The Act provides that, in such circumstances, the Member would no longer be able to sit in the House. A Member raised a question of privilege, claiming that it fell to the House to determine whether Mr. Del Mastro could continue sitting as a Member. The Speaker having found the matter to be a prima facie question of privilege, a motion, and an amendment to it, were debated which, if adopted, would have the effect of expelling Mr. Del Mastro, should his conviction be upheld following appeal. However, the following day, Mr. Del Mastro resigned, and the Speaker ordered the motion to be dropped from the Order Paper.³³²

The Rights to Institute Inquiries, to Require the Attendance of Witnesses and to Order the Production of Documents

By virtue of the preamble and section 18 of the Constitution Act, 1867, Parliament has the ability to institute its own inquiries, to require the attendance of witnesses and to order the production of documents, rights which are fundamental to its proper functioning. These rights are as old as Parliament itself. Maingot states:

The only limitations, which could only be self-imposed, would be that any inquiry should relate to a subject within the legislative competence of Parliament, particularly where witnesses and documents are required and the penal jurisdiction of Parliament is contemplated. This dovetails with the right of each House of Parliament to summon and compel the attendance of all persons within the limits of their jurisdictions.³³³

These rights are now exercised for the most part by committees pursuant to powers delegated to them by the House in the Standing Orders.³³⁴

Each standing committee has a permanent order of reference which allows its members to conduct inquiries into departmental and policy matters. In addition, the House may refer additional matters to its committees for study. In the course of its study into a particular matter, a committee may wish to hear testimony from public officials, private individuals or representatives of groups, organizations and associations. In the majority of cases, witnesses invited to appear before a committee do so willingly. If a witness declines an invitation to appear, the committee may issue a summons to the witness by adopting a motion to that effect. If the witness still refuses to appear, the committee may report the matter to the House and the House then may order the witness to appear. If the witness disobeys the order, the witness may be declared guilty of contempt.

Committees are not empowered to compel the attendance of the Sovereign, the Governor General, Lieutenant Governors, Members, Senators, officers of another legislature or persons outside of Canada.³³⁵ Should a Member refuse to testify, the committee may report the matter to the House and then the House will decide what action is necessary. While Senators may appear before House committees voluntarily, if a committee wishes to extend a formal invitation to a Senator, the House may adopt a motion for a message to be sent to the Senate requesting that it grant leave for a Senator to appear before the committee.³³⁶

For the purposes of an inquiry, the committee may send for any papers that are relevant to its order of reference. Typically these documents include government reports, statistics, memoranda, agreements and briefs, and they are, with rare exceptions, provided voluntarily.³³⁷ As stated in a report of the Standing Committee on Privileges and Elections in 1991:

The power to send for persons, papers and records has been delegated by the House of Commons to its committees in the Standing Orders. It is well established that Parliament has the right to order any and all documents to be laid before it which it believes are necessary for its information. … The power to call for persons, papers and records is absolute, but it is seldom exercised without consideration of the public interest. The House of Commons recognizes that it should not require the production of documents in all cases; considerations of public policy, including national security, foreign relations, and so forth, enter into the decision as to when it is appropriate to order the production of such documents.³³⁸

If a committee’s request that it be given certain documents is met with resistance or disregarded, the committee may adopt a motion ordering the production of the requested documents.³³⁹ If such an order is ignored, the committee has no means to enforce the order on its own. It may report the matter to the House and recommend that appropriate action be taken.³⁴⁰ It is then a decision of the House whether or not to issue an order for the production of papers. This may be done by the adoption of a motion³⁴¹ or by concurring in the committee’s report.³⁴² If an order is issued and disregarded, the disciplinary powers of the House may be invoked. Individuals could be called to the Bar of the House, cited for contempt or otherwise punished. In 1891, a witness before a committee was called to the Bar of the House for refusing to produce documents requested by the committee.³⁴³ In 2004, the House found three companies in contempt of the House for refusing to provide a committee with the documents it had requested.³⁴⁴

In November 2009, the Special Committee on the Canadian Mission in Afghanistan reported to the House that its privileges had been breached by the Government’s failure to produce documents requested by the Committee relating to the detention of Afghan soldiers by Canadian Forces in Afghanistan.³⁴⁵ On December 10, 2009, the House, in turn, adopted an Order requiring the production of documents that the Committee had requested; the Government refused, citing national security concerns.³⁴⁶ Questions of privilege were raised based on the House’s absolute right to order documents. The Minister of Justice insisted that as the government had a duty to protect information that could jeopardize national security, that right was not without limits.³⁴⁷ On April 27, 2010, Speaker Milliken ruled that it was within the powers of the House to ask for the documents specified in the House Order, and that it did not transgress the separation of powers between the executive and legislative branches of Government. Thus, the Speaker concluded that the Government’s failure to comply with the House Order constituted a prima facie breach of privilege. However, he gave the parties two weeks to develop a mechanism that would accommodate the Government’s concerns over national security and the House’s right to receive the documents.³⁴⁸

The Right to Administer Oaths to Witnesses

The right of the House and of its committees to examine witnesses under oath, a right that was not part of the ancient custom of Parliament, has been conferred by legislation and is now contained in the Parliament of Canada Act.³⁴⁹ The provisions of the Act allow witnesses to be examined under oath and authorize the Speaker, committee Chairs and anyone appointed by the Speaker to administer an oath or affirmation.

Under normal circumstances, witnesses before House committees are not sworn in. It is generally accepted that witnesses have a duty to speak the truth regardless of whether or not their testimony is given under oath.³⁵⁰ The decision as to the swearing-in of witnesses is left entirely to the discretion of the committee. If a witness refuses to be sworn in, the committee, not being empowered to deal with a perceived contempt, may report the matter to the House.³⁵¹

Although the testimony of a witness before a parliamentary committee is protected by parliamentary privilege, if a committee determines that a witness has wilfully lied or misled it, the matter could be reported to the House. If the House finds that the witness has deliberately misled the committee, the witness could be found in contempt of the House whether the witness is under oath or not.

If the House determined that a witness had wilfully lied to a committee, it may deem it appropriate to waive its privileges and refer the matter to the Crown for a determination as to whether or not there is sufficient evidence to charge the offender with perjury.³⁵² To do so, however, the testimony would need to have been given under oath.

In 2003, a subcommittee of the Standing Committee on Government Operations and Estimates was mandated to look into the possibility that the Privacy Commissioner and certain employees in the Office of the Privacy Commissioner had provided deliberately misleading testimony during the Committee’s hearings into matters related to that Office. In its report to the House on the subcommittee’s findings and conclusions, the Committee observed:

The formal placing of witnesses under oath does not create obligations that do not exist already. However, we believe it would communicate the importance of the obligations to which witnesses are subject more effectively than, for example, simply informing them that their testimony will have the status of testimony given under oath. More obviously, it has clear advantages over merely assuming that witnesses are aware of their duty to speak the whole truth.³⁵³

The Right to Publish Papers

The Parliament of Canada Act provides protection for the publication, by order of the House, of parliamentary papers such that no lawsuit may be brought relating to the contents of the papers or their appendices.³⁵⁴ This includes all documents published by a committee acting under the authority of the House. It has been established that householders and other communications between Members and their constituents are not considered a “proceeding in Parliament” and are therefore not protected by this particular parliamentary privilege.³⁵⁵

260.: Supra note 15, ss 10–13.
261.: In Vaid, supra note 1, the Supreme Court rejected the assertion in Maingot (Parliamentary Privilege in Canada, 2nd ed., p. 183) that parliamentary privilege covers the management of all staff (para 66). The Court agreed with the United Kingdom Joint Committee on Parliamentary Privilege which stated that “the purpose of parliamentary privilege is to ensure that Parliament can discharge its functions as a legislative and deliberative assembly without let or hindrance. This heading of privilege best serves Parliament if not carried to extreme lengths” (United Kingdom, Joint Committee on Parliamentary Privilege, Report, Volume I — Report and Proceedings of the Committee, March 30, 1999, Chapter 5, para 241).
262.: Supra note 16.
263.: Vaid, supra note 1; Knopf, supra note 115; Association des juristes de l’État c Québec (PG) (Secrétariat du Conseil du Trésor), 2013 QCCA 1900, aff’g 2011 QCCS 4015 [Association des juristes de l’État]. In 2011, the Court of Appeal of Quebec relied on Vaid in determining that parliamentary privilege gave the Quebec National Assembly the right to manage its employees as they see fit when their work is deemed essential to the proper functioning of its proceedings. The case in question concerned lawyers specializing in parliamentary procedure who were exempted from the provisions of Quebec’s Labour Code regarding essential services (Association des juristes de l’État).
264.: Vaid, supra note 1 at para 29.10. The principle was reiterated in June 2012, when the House received a third-party request under the Access to Information Act, RSC 1985, c A-1, for emails pertaining to the appearances of the Auditor General before parliamentary committees between January 17 and April 17, 2012. After the House adopted a resolution waiving its privileges in this instance alone related to the emails in question, the Speaker made a statement confirming that the House’s rights and privileges had been neither ceded nor jeopardized (Debates, September 17, 2012, p. 10004–6).
265.: In 2001, the Court of Appeal for Ontario handed down a judgment which established that the “Standing Orders are protected by parliamentary privilege and neither the courts nor any quasi-judicial body have the right to inquire into their contents or to question whether a particular part of the Standing Orders … is necessary or lawful”. The Court was ruling on an appeal involving a complaint filed with the Ontario Human Rights Commission about the recital of the Lord’s Prayer in the Ontario Legislative Assembly (Ontario (Speaker of the Legislative Assembly) v Ontario (Human Rights Commission), [2001] 54 OR (3d) 595 at paras 23, 48).
266.: On June 4, 1998, the House adopted the following Order: “That this House order that Ernst Zündel be denied admittance to the precinct of the House of Commons during the present Session” (Journals, p. 937, Debates, pp. 7608–9, 7616). The House had adopted this Order to prevent Mr. Zündel, a noted Holocaust denier, from holding a press conference in the Press Gallery’s Conference Room in the Centre Block of the Parliament Buildings. Mr. Zündel had brought an action against the political parties represented in the House of Commons, as well as a number of Members of Parliament, seeking a declaration that the defendants had violated his right to freedom of expression guaranteed under section 2(b) of the Charter, supra note 102. The lawyer for the plaintiff questioned whether the resolution denying Mr. Zündel the right to use the Precinct of Parliament for a speech was necessary to the proper functioning of the House. In dismissing the action, the Court found, among other reasons, that the House of Commons was exercising its parliamentary privilege in restricting the precinct of the House of Commons and had not prohibited Mr. Zündel from speaking. The Court concluded that it should not interfere with the decision of the House (Zündel v Liberal Party of Canada, 1999 CanLII 14889 (ON SC)).
267.: The Federal Court was asked to determine if the language rights of a witness before a House committee had been violated when the clerk of the committee refused to distribute to committee members English-only documents in accordance with the procedures the committee had established for itself at its organizational meeting. In Knopf, the Court determined that “the Committee’s control over its internal proceedings (including the reception and distribution of documents from witnesses or other outside sources) is intimately tied to its deliberative function” (para 56). The Court concluded that “the distribution of documents falls within the parliamentary privilege of the Committee to control its internal procedure and is therefore immunized from review by the Court” (para 59) (supra note 115, leave to appeal to FCA refused, 2007 FCA 308, leave to appeal to SCC refused, 32416 (20 march 2008)).
268.: Newfoundland and Labrador (Child and Youth Advocate) v Newfoundland and Labrador (House of Assembly), 2009 NLTD 189 (NLSC (TD)).
269.: For example, although Standing Order 109 confers a right upon demand to a comprehensive response from the government to a committee report within 120 days of its presentation, the “right”, which belongs to the committee requesting the response and not to individual Members, is not a legal right of which the courts may take any notice.
270.: Vaid, supra note 1 at para 34.
271.: Bourinot, Parliamentary Procedure and Practice, 4th ed., p. 37.
272.: Zündel, supra note 95 at para 18: “… the courts would be overstepping legitimate constitutional bounds if they sought to interfere with the power of the House to control access to its own premises”. See also Journals, June 4, 1998, p. 937, Debates, pp. 7608–9, 7616. In 2007, the House adopted a motion denying admittance to two representatives of a white supremacy organization who planned to hold a press conference in the Centre Block (Journals, October 17, 2007, p. 12, Debates, pp. 52–3).
273.: On June 4, 1993, Brian Tobin (Humber—St. Barbe—Baie Verte) rose on a question of privilege complaining of intimidation and interference as he attempted to perform his parliamentary duties. The Member explained that while in the lobby of the House of Commons, he had been served with a notice of intention to bring action against him unless he withdrew remarks concerning an individual (Debates, June 4, 1993, pp. 20371–2, 20375–7). On June 10, 1993, Deputy Speaker Champagne delivered a ruling in which she referred to the long-standing tradition that process cannot be served in the precinct of the House of Commons without the permission of the Speaker. The Deputy Speaker noted that the letter delivered to Mr. Tobin did not fall under the definition of process (implying an issuance from a court of law) as legal proceedings had not begun. She commented that, in this instance, there was no requirement to inform the Speaker and ruled that there was no prima facie case of privilege (Debates, June 10, 1993, pp. 20693–4).
274.: Debates, April 4, 1989, p. 39; May 19, 1989, pp. 1951–3. In March 1989, while Parliament was prorogued, a subpoena authorized by a British Columbia Supreme Court Justice was served on David Kilgour (Edmonton Southeast) in his Centre Block office in connection with a defamation action then under way. Much correspondence followed, including a letter from the Law Clerk and Parliamentary Counsel of the House of Commons in which the Member’s right to be exempt from attending as a witness in a court of law was affirmed. After receiving a letter ordering him to appear in person in the British Columbia Supreme Court in Kelowna, Mr. Kilgour complied, although he refused to give evidence upon being questioned, and just prior to his being cited for contempt, the counsel for the plaintiff withdrew the subpoena.
275.: Debates, May 19, 1989, pp. 1951–3.
276.: May, Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 24th ed., p. 240.
277.: Maingot, Parliamentary Privilege in Canada, 2nd ed., pp. 164–5, 171–2; Vaid, supra note 1 at para 29.1.
278.: Maingot, Parliamentary Privilege in Canada, 2nd ed., pp. 174–5 for a summary of the case. Maingot notes that in finding that no breach of privilege had occurred, the Standing Committee on Privileges and Elections determined that the precincts of Parliament do not extend beyond the walls of the buildings.
279.: Journals, September 4, 1973, p. 532, Debates, pp. 6179–80, 6181.
280.: Journals, September 21, 1973, p. 567.
281.: Journals, September 21, 1973, p. 567.
282.: Debates, November 30, 1979, p. 1891.
283.: Journals, December 14, 1989, p. 1011. See also James R. Robertson and Margaret Young, “Parliament and the Police: The Saga of Bill C-79,” Canadian Parliamentary Review 14, no. 4 (Winter 1991–92): p. 18.
284.: Third Report of the Special Committee on the Review of the Parliament of Canada Act, presented to the House and concurred in on May 29, 1990 (Journals, pp. 1775–6).
285.: Journals, May 29, 1990, pp. 1775–6. See also Special Committee on the Review of the Parliament of Canada Act, Minutes of Proceedings and Evidence, March 11, 1990, Issue No. 7, pp. 5–9.
286.: Journals, May 29, 1990, pp. 1775–6.
287.: Where there is a question of whether the documents, or a computer, to be searched contain materials covered by privilege (e.g., draft committee reports, draft speeches, etc.), it may be that the documents or computer should be seized and kept under the authority of the Speaker until such time as the question of possible application of privilege is determined (New South Wales, Legislative Council, Standing Committee on Parliamentary Privilege and Ethics, Parliamentary privilege and seizure of documents by ICAC, Report 25, December 2003 and Parliamentary privilege and seizure of documents by ICAC No. 2, Report 28, March 2004).
288.: Maingot, Parliamentary Privilege in Canada, 2nd ed., p. 151.
289.: Standing Order 15.
290.: For further information, see Chapter 4, “The House of Commons and Its Members”, and Chapter 13, “Rules of Order and Decorum”.
291.: A “stranger” is anyone who is not a Member of the House of Commons or an official of the House. This includes Senators, diplomats, departmental officials and journalists, as well as members of the public.
292.: Maingot, Parliamentary Privilege in Canada, 2nd ed., p. 180. For a discussion on the disciplinary powers of the House of Commons, see Charles Robert and Blair Armitage, “Perjury, Contempt and Privilege: The Coercive Powers of Parliamentary Committees,” Canadian Parliamentary Review 30, no. 4 (Winter 2007): p. 29.
293.: May, Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 24th ed., p. 192.
294.: In 2010, the Superior Court of Quebec ruled, in a matter involving two journalists who had been denied accreditation to the Press Gallery by the Speaker of the National Assembly of Quebec, that the right to allow such accreditation was a matter of parliamentary privilege and, thus, rested solely with the Speaker (Charrette, Supra note 113).
295.: For more information on “naming”, see Chapter 7, “The Speaker and Other Presiding Officers of the House”.
296.: Power is delegated to the Speaker, particularly in relation to discipline within the Chamber, under the provisions of Standing Orders 10, 11 and 16. For further information, see Chapter 13, “Rules of Order and Decorum”. Power is also delegated to the Sergeant-at-Arms in the case of “strangers” under Standing Orders 157 and 158.
297.: Appendix I to the Standing Orders of the House of Commons, in particular sections 8 to 13.1. For further information, see Chapter 4, “The House of Commons and Its Members”.
298.: For more information on the Conflict of Interest Code for Members of the House of Commons, see Chapter 4, “The House of Commons and its Members”.
299.: Conflict of Interest Code for Members of the House of Commons, Appendix 1 to the Standing Orders of the House of Commons, ss 27–28. Pursuant to the Code, a motion respecting such a report may be moved and debated for no more than two hours during Routine Proceedings, after which the question will be put forthwith (s 28(11)). If no motion is moved and disposed of prior to the 30th sitting day after the day on which the report was presented, the motion to concur in the report will be deemed moved and the Speaker will put the question to dispose of the motion to the House (s 28(12)).
300.: Maingot, Parliamentary Privilege in Canada, 2nd ed., pp. 193–5.
301.: May, Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 24th ed., p. 196, notes that the last time the English House of Commons imposed a fine was in 1666, although its power to do so was questioned in 1762 by Lord Mansfield in R v Pitt (1762), 96 ER 214. However, in the 1810 case of Burdett v Abbott (1811), 104 ER 501, the Court indicated that the House ought to have the power to protect itself from obstruction and insult. In 1967, 1977 and 1999, three committees studying the rights and immunities of the British Parliament recommended legislation to give the House a statutory power to fine. In 2004, the Canadian House concurred in a report of the Standing Committee on Agriculture and Agri-Food which recommended that three companies be found in contempt of the House for refusing to provide the Committee with documents it had requested (Journals, May 6, 2004, p. 388). When two of the companies continued to refuse to comply with the request, the Committee presented another report to the House on the matter. The Committee exceeded the conventionally accepted powers of discipline and requested that the House impose a daily fine on the two companies in order to compel them to produce the papers the Committee had summoned (Fourth Report of the Standing Committee on Agriculture and Agri-Food, presented to the House on May 13, 2004 (Journals, p. 416). The House did not concur in the Report (Debates, May 13, 2004, pp. 3115–6)).
302.: Exceptionally, in one case, a former Member was summoned to the Bar in order for the House to pay tribute to his years of service. On March 1, 2002, a motion was adopted by unanimous consent calling for Herb Gray to appear at the Bar to hear remarks by one representative of each party and to respond thereto (Journals, p. 1149). On March 13, 2002, Mr. Gray appeared at the Bar and Members paid tribute to his long service as a Member of Parliament (Journals, p. 1171, Debates, pp. 9588–93).
303.: Journals, March 10, 1873, pp. 10–2; March 26, 1873, pp. 70–3; March 27, 1873, pp. 75–7; March 28, 1873, p. 84.
304.: Journals, April 7, 1873, pp. 133–4. According to Bourinot, Parliamentary Procedure and Practice, 4th ed., p. 53, the Speaker subsequently informed the House that Mr. Tassé had been dismissed.
305.: Journals, November 3, 1873, pp. 134–5; November 4, 1873, p. 139; November 7, 1873, p. 142. For further information, see the section in this chapter entitled “Taking Individuals into Custody and Imprisonment”.
306.: Journals, March 30, 1874, p. 8; March 31, 1874, pp. 10–3; April 1, 1874, pp. 14, 17–8; April 9, 1874, pp. 32–9; April 15, 1874, pp. 64–5; April 16, 1874, pp. 67–71; April 17, 1874, p. 74. For further information, see the section in this chapter entitled “Expulsion”.
307.: Journals, May 13, 1879, p. 423; May 15, 1879, p. 436; February 16, 1880, p. 24; February 24, 1880, pp. 58–9.
308.: Journals, May 12, 1887, p. 121; May 30, 1887, pp. 187–93.
309.: Journals, June 5, 1891, p. 205; June 16, 1891, pp. 211–2.
310.: Journals, August 27, 1891, p. 454; September 1, 1891, p. 467.
311.: Journals, June 7, 1894, p. 242; June 11, 1894, p. 288; June 13, 1894, pp. 298–300.
312.: Journals, June 6, 1906, p. 342; June 7, 1906, pp. 345–6; June 14, 1906, pp. 370–7. Also in 1906, William T. Preston, an inspector of Canadian immigration in Europe for the Department of the Interior, was a witness before the Agriculture and Colonization Committee as well as the Public Accounts Committee and he refused to answer certain questions. Both committees reported this to the House. A motion was moved, based on the report of the Agriculture Committee, that he should be summoned to appear before the Bar of the House. However, the motion was amended to the effect that Mr. Preston was not required to appear, and the motion was adopted as amended (Journals, May 30, 1906, p. 316; June 1, 1906, p. 323; June 4, 1906, pp. 331–3; July 3, 1906, pp. 475–6).
313.: Journals, February 14, 1913, p. 249; February 17, 1913, p. 254; February 18, 1913, pp. 266–7; February 20, 1913, pp. 274–8. For further information, see the section in this chapter entitled “Taking Individuals into Custody and Imprisonment”.
314.: In 2003, a prima facie breach of contempt having been found, Derek Lee (Scarborough—Rouge River) was prepared to move a motion to have George Radwanski, a former Privacy Commissioner, summoned to the Bar of the House for deliberately providing misleading information to the Standing Committee on Government Operations and Estimates. Before he could move the motion, the Chair of the Committee, Reg Alcock (Winnipeg South), rose to advise the House that he had received a letter of apology from Mr. Radwanski. After consulting with party representatives, Mr. Lee moved a motion in which no reference to the Bar of the House was made. The motion was adopted (Journals, November 6, 2003, pp. 1245, 1249, Debates, pp. 9229–31, 9237). See, in particular, the remarks of Mr. Lee (Debates, November 6, 2003, p. 9230).
315.: May, Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 24th ed., pp.197–8. See also Bourinot, Parliamentary Procedure and Practice, 4th ed., p. 368.
316.: Journals, October 31, 1991, pp. 574, 579, Debates, pp. 4271–85, 4309–10.
317.: Journals, April 22, 2002, pp. 1323–4, Debates, pp. 10654–70; Journals, April 23, 2002, pp. 1337–8; April 24, 2002, p. 1341, Debates, p. 10770.
318.: Maingot, Parliamentary Privilege in Canada, 2nd ed., pp. 193–209. In the United Kingdom, when ordering the committal of an offender for contempt, the House of Commons directs the Speaker to issue a warrant to the Serjeant at Arms and, if appropriate, to the governor of a prison. The warrant does not have to state the cause of committal nor does the offender have to have been found guilty of contempt before being taken into custody. The House of Lords commits an individual by order without a warrant. The order, signed by the Clerk of Parliaments, is the authority under which officers of the House and others execute their duty. Offenders committed by order of either House have either been detained in a prison or in the custody of the Black Rod or the Serjeant at Arms as the case may be. The House of Lords has the power to commit offenders to prison for a specified term that may extend beyond the duration of a session, whereas the House of Commons is considered to be without power to imprison beyond a session. The practice in the Commons has been to commit offenders until they present petitions expressing contrition for their offences and praying for their release. They may also be released upon the adoption of a motion in the House discharging them. The Joint Committee on Parliamentary Privilege recommended the abolition of the power to imprison but not the power to detain temporarily those individuals declared guilty of misconduct within the precincts of Parliament. For further information, see May, Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 24th ed., pp. 191–6.
319.: Journals, May 1, 1868, pp. 267–8; May 2, 1868, p. 271.
320.: Journals, May 10, 1873, pp. 317–8; May 12, 1873, pp. 327–8.
321.: Journals, November 3, 1873, pp. 134–5; November 4, 1873, p. 139; November 7, 1873, p. 142. For further information, see the section in this chapter entitled “Censure, Reprimand and the Summoning of Individuals to the Bar of the House”.
322.: Journals, August 18, 1891, p. 414; August 20, 1891, p. 422. For further information, see the section in this chapter entitled “Expulsion”.
323.: Journals, February 14, 1913, p. 249; February 17, 1913, p. 254; February 18, 1913, pp. 266–7; February 20, 1913, pp. 274–8. For further information, see the section in this chapter entitled “Censure, Reprimand and the Summoning of Individuals to the Bar of the House”.
324.: First Report of the Standing Committee on Access to Information, Privacy and Ethics, presented to the House and concurred in on November 27, 2007 (Journals, p. 219). See also Standing Committee on Access to Information, Privacy and Ethics, Minutes of Proceedings, Evidence, November 22, 2007, Meeting No. 3.
325.: May, Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 20th ed., p. 139. See also May, Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 24th ed., pp. 198–9.
326.: Bourinot, Parliamentary Procedure and Practice, 4th ed., p. 64. For a discussion about expulsion and in particular the possible role of the Charter, supra note 102, see Gwenn Ronyk, “The Power to Expel,” The Table 53 (1985): p. 43; John A. Holtby, “The Legislature, The Charter and Billy Joe MacLean,” Canadian Parliamentary Review 10, no. 1 (Spring 1987): p. 12; Andrew David Heard, “The Expulsion and Disqualification of Legislators: Parliamentary Privilege and the Charter of Rights” (1995) 18 Dal LJ 380.
327.: Maingot, Parliamentary Privilege in Canada, 2nd ed., p. 211. See also pp. 212–5.
328.: Journals, April 15, 1874, pp. 64–5; April 16, 1874, pp. 67–71; April 17, 1874, p. 74.
329.: Journals, February 4, 1875, p. 42; February 22, 1875, p. 111; February 24, 1875, pp. 118–25.
330.: Journals, May 11, 1891, pp. 55–60; August 12, 1891, p. 402; August 13, 1891, p. 407; August 18, 1891, p. 414; August 19, 1891, pp. 417, 419; August 20, 1891, p. 422; September 1, 1891, pp. 466–7; September 4, 1891, p. 477; September 16, 1891, p. 512; September 24, 1891, pp. 527–31; September 29, 1891, p. 561.
331.: Journals, January 30, 1947, pp. 4–8. For further information on the expulsion of Members, see Chapter 4, “The House of Commons and Its Members”.
332.: Journals, November 4, 2014, pp. 1716–7, Debates, pp. 9183–203; Journals, November 5, 2014, p. 1719, Debates, p. 9221.
333.: Maingot, Parliamentary Privilege in Canada, 2nd ed., p. 190. See also p. 191.
334.: Standing Order 108(1)(a).
335.: Derek Lee, The Power of Parliamentary Houses to Send for Persons, Papers & Records: A Sourcebook on the Law and Precedents of Parliamentary Subpoena Powers for Canadian and other Houses (Toronto: University of Toronto Press, 1999), pp. 1–2.
336.: See, for example, Journals, May 9, 1996, pp. 341–2. For further information on summoning witnesses, see Chapter 20, “Committees”.
337.: With respect to the production of papers, Bourinot, Parliamentary Procedure and Practice, 4th ed., states at page 253: “A document, of which it is proposed to order a copy, must be official in its character and not a mere private letter or paper, and must relate to a matter within the jurisdiction of parliament”.
338.: Journals, May 29, 1991, p. 95. In 1990, the Solicitor General refused to provide the Standing Committee on Justice and the Solicitor General with two reports, citing privacy issues. The Committee reported the matter to the House (Journals, December 19, 1990, p. 2508). Subsequently, a question of privilege was raised and although no prima facie case of privilege was found (Debates, February 28, 1991, pp. 17745–6), the matter of the failure of the Solicitor General to provide the reports was referred to the Standing Committee on Privileges and Elections (Journals, February 28, 1991, p. 2638; May 17, 1991, p. 42). In its report to the House, the Standing Committee on Privileges and Elections concluded that the Standing Committee on Justice and the Solicitor General had been within its rights to insist on the production of the reports and recommended that the House order the Solicitor General to comply with the production Order (Journals, May 29, 1991, pp. 92–9). The House subsequently adopted a motion to that effect with the proviso that the reports be presented at an in camera meeting of the Standing Committee on Justice and the Solicitor General (Journals, June 18, 1991, pp. 216–7).
339.: See, for example, Standing Committee on Justice and the Solicitor General, Minutes of Proceedings and Evidence, Issue No. 56, December 4, 1990, p. 3; Standing Committee on Agriculture and Agri Food, Minutes of Proceedings, February 25, 2004, Meeting No. 5; April 21, 2004, Meeting No. 15; Special Committee on the Canadian Mission in Afghanistan, Minutes of Proceedings, November 25, 2009, Meeting No. 16; Standing Committee on Finance, Minutes of Proceedings, November 17, 2010, Meeting No. 45.
340.: See, for example, Seventh Report of the Standing Committee on Justice and the Solicitor General, presented to the House on December 19, 1990 (Journals, p. 2508); Third Report of the Standing Committee on Agriculture and Agri-Food, presented to the House on May 6, 2004 (Journals, p. 388); Nineteenth Report of the Standing Committee on Human Resources and Social Development, presented to the House on June 15, 2007 (Journals, pp. 1542–3); Tenth Report of the Standing Committee on Finance, presented to the House on February 7, 2011 (Journals, p. 1188).
341.: See, for example, Journals, June 18, 1991, pp. 216–7; December 10, 2009, pp. 1191, 1193–7.
342.: See, for example, Journals, May 6, 2004, p. 388.
343.: Journals, June 5, 1891, p. 205; June 16, 1891, pp. 211–2; August 27, 1891, p. 454; September 1, 1891, p. 467.
344.: Journals, May 6, 2004, p. 388. When two of the companies continued to refuse to produce the financial statements requested, the committee requested the further assistance of the House in compelling the production of the documents (Fourth Report of the Standing Committee on Agriculture and Agri-Food, presented to the House on May 13, 2004 (Journals, p. 416)). The House did not concur in the report (Debates, May 13, 2004, pp. 3115–6). For further information, see Chapter 20, “Committees”.
345.: Third Report of the Special Committee on the Canadian Mission in Afghanistan, presented to the House on November 27, 2009 (Journals, p. 1101).
346.: Journals, December 10, 2009, pp. 1191, 1193–5.
347.: Debates, March 18, 2010, pp. 607–17; March 31, 2010, pp. 1220–9.
348.: Debates, April 27, 2010, pp. 2039–45. Following an agreement in principle of all parties and the resulting memorandum of understanding, signed only by the Government, the Official Opposition and the Bloc Québécois, an ad hoc committee composed of one Member and one alternate from each of the three parties signatory to the agreement examined the approximately 40,000 pages of unredacted text related to Afghan detainees, after being sworn to secrecy (Debates, May 31, 2010, p. 3157; June 15, 2010, pp. 3837–8; Journals, June 16, 2010, p. 536, Debates, p. 3926). To facilitate the identification of relevant documents, a three-person panel, known as the Panel of Arbiters, was struck, comprised of former Supreme Court Justices Frank Iacobucci and Claire L’Heureux-Dubé, and former B.C. Supreme Court judge Donald Brenner, to assist the Members of the ad hoc committee in their work (PC 2010-0943, (2010) C Gaz I, 2081; PC 2010-0942, (2010) C Gaz I, 2081; PC 2010-0941, (2010) C Gaz I, 2081). On March 26, 2011, the Fortieth Parliament was dissolved. On June 22, 2011, John Baird, the Minister of Foreign Affairs, tabled approximately 4,000 pages of documents relating to the detention of combatants by the Canadian Forces in Afghanistan (Journals, June 22, 2011, p. 133).
349.: Supra note 15, ss 10–13. See also Maingot, Parliamentary Privilege in Canada, 2nd ed., pp. 191–2. For further information, see the section in this chapter entitled “Privilege Since Confederation”.
350.: A House lawyer made the following analogy in an appearance before the Standing Committee on Public Accounts in 2007: “I’d like to give you a parallel between this idea of deeming the obligation to speak the truth versus being sworn under oath. That is being called to a court, civil or criminal, by means of a subpoena, versus being called before a committee by means of an invitation. In my mind, both have equal value. In other words, an invitation to appear before a committee is as inherently binding as a subpoena before a court. In that sense, every witness all the time has the obligation to speak the truth to a committee” (Standing Committee on Public Accounts, Evidence, February 7, 2007, Meeting No. 37, p. 10).
351.: Speaker Fraser stated in a 1987 ruling: “… a witness once summoned by a parliamentary committee would be ill advised to walk out because of an unwillingness to be sworn in” (Debates, March 17, 1987, pp. 4265–6).
352.: Parliament of Canada Act, supra note 15, s 12; Criminal Code, supra note 174, ss 132, 136. No witness has ever been charged with perjury for lying to a committee under oath. For further information, see the section in this chapter entitled “Freedom of Speech”.
353.: Ninth Report of the Standing Committee on Government Operations and Estimates, para 2.24, presented to the House on November 4, 2003 (Journals, p. 1225). The Committee recommended that “parliamentary committees consider placing witnesses under oath more often, when circumstances warrant” (Recommendation 1). The House did not concur in the Report.
354.: Supra note 15, ss 7–9. The famous case of Stockdale, supra note 15, in the 1830s resulted in a decision by the British courts that parliamentary privilege did not provide the authority to publish defamatory material with impunity. See Maingot, Parliamentary Privilege in Canada, 2nd ed., pp. 281–7. The effects of this case have been addressed in Canada through the Parliament of Canada Act, s 5. At the same time, sections 7 through 9 grant statutory protection to any person who has printed a publication by or under the authority of the Senate or the House of Commons.
355.: Pankiw, supra note 111. For further information, see the sections in this chapter entitled “Privilege Challenged in the Courts” and “Limitations on Freedom of Speech”.

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