House of Commons Procedure and Practice
Edited by Robert Marleau and Camille Montpetit
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3. Privileges and Immunities

Privilege is that which sets hon. members apart from other citizens giving them rights which the public do not possess… In my view, parliamentary privilege does not go much beyond the right of free speech in the House of Commons and the right of a member to discharge his duties in the House as a member of the House of Commons.

Speaker Lucien Lamoureux
(Debates, April 29, 1971, p.5338)

T

he practices and precedents of the House of Commons of Canada regarding parliamentary privilege stretch far back into colonial times. At an early stage, the young assemblies of the colonies, modelling themselves on Westminster, claimed the privileges of the British House, though without statutory authority. At Confederation, the privileges of the British House were transferred in the Constitution Act, 1867 [1]  to the Canadian Parliament, and for many years the Canadian House continued to look to the experience of the British House for guidance in matters of parliamentary privilege. [2] 

The origins of the privileges enjoyed by the House of Commons in the United Kingdom were a product of a direct and real threat from the Crown and the House of Lords. As the threat subsided, the thrust of the history of privilege has been towards defining those rights and immunities in their narrowest sense, reflecting the reality that all privileges enjoyed by the House and its Members ultimately derive from the electorate. Fortunately, the privileges of the Canadian House of Commons were inherited without the need to overcome physical threats and challenges. They enable the institution of Parliament to flourish and individual Members to fulfil the functions for which they were elected.

In modern parlance, the term “privilege” usually conveys the idea of a “privileged class”, with a person or group granted special rights or immunities beyond the common advantages of others. [3]  This is not, however, the meaning of privilege in the parliamentary context. “Parliamentary privilege” refers more appropriately to the rights and immunities that are deemed necessary for the House of Commons, as an institution, and its Members, as representatives of the electorate, to fulfil their functions. It also refers to the powers possessed by the House to protect itself, its Members, and its procedures from undue interference, so that it can effectively carry out its principal functions which are to inquire, to debate, and to legislate. [4]  In that sense, parliamentary privilege can be viewed as special advantages which Parliament and its Members need to function unimpeded.

This chapter will briefly summarize the evolution of privilege in the United Kingdom and in Canada, discuss the rights and immunities of the House and its Members, and describe the procedures by which matters of privilege are raised and dealt with in the Canadian House. For an in-depth treatment of the subject, the reader is referred to two principal sources. The first is Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament[5]  which lays out the practice and precedents of the British House of Commons. The second is Parliamentary Privilege in Canada by Joseph Maingot, [6]  which focusses on the history and workings of privilege in Canada.

Parliamentary Privilege: A Definition

The classic definition of parliamentary privilege is found in Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament:

Parliamentary privilege is the sum of the peculiar rights enjoyed by each House collectively… and by Members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. Thus privilege, though part of the law of the land, is to a certain extent an exemption from the general law. [7] 

These “peculiar rights” can be divided into two categories: those extended to Members individually, and those extended to the House collectively. Each grouping can be broken down into specific categories. For example, the rights and immunities accorded to Members individually are generally categorized under the following headings:

  • freedom of speech;
  • freedom from arrest in civil actions;
  • exemption from jury duty;
  • exemption from attendance as a witness.

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

  • the power to discipline, that is, the right to punish (by incarceration) persons guilty of breaches of privilege or contempts, and the power to expel Members guilty of disgraceful conduct;
  • the regulation of its own internal affairs;
  • the authority to maintain the attendance and service of its Members;
  • the right to institute inquiries and to call witnesses and demand papers;
  • the right to administer oaths to witnesses;
  • the right to publish papers containing defamatory material.

These two groupings represent all the privileges extended to Members of Parliament and the House of Commons collectively. Each of these privileges will be examined in greater detail and illustrated with relevant cases later in this chapter.

The House has the authority to invoke privilege where its ability has been obstructed in the execution of its functions or where Members have been obstructed in the performance of their duties. It is only within this context that privilege can be considered an exemption from the general law. Members are not outside or above the law which governs all citizens of Canada. The privileges of the Commons are designed to safeguard the rights of each and every elector. [8]  For example, the privilege of freedom of speech is secured to Members not for their personal benefit, but to enable them to discharge their functions of representing their constituents without fear of civil or criminal prosecution for what might be said in the House and committees. When a constituency has returned a candidate, it is the electors’ right that this chosen representative should be protected from any kind of improper pressure, and particularly from crude violence. [9] 

The distinctive mark of a privilege is its ancillary character. The privileges of Parliament are rights, which are “absolutely necessary for the due execution of its powers”. They are enjoyed by individual Members because the House cannot perform its functions without unimpeded use of the services of its Members; and by each House for the protection of its Members and the vindication of its own authority and dignity. [10] 

Privilege essentially belongs to the House as a whole; individual Members can only claim privilege insofar as any denial of their rights, or threat made to them, would impede the functioning of the House. In addition, individual Members cannot claim privilege or immunity on matters that are unrelated to their functions in the House. [11] 

Any conduct which offends the authority or dignity of the House, even though no breach of any specific privilege may have been committed, is referred to as a contempt of the House. Contempt may be an act or an omission; it does not have to actually obstruct or impede the House or a Member, it merely has to have the tendency to produce such results.

What Parliament has considered as “absolutely necessary” privileges has varied over the centuries. Nevertheless, certain basic principles relating to privilege have become established. Neither House individually can extend its privileges, though either House can, formally by resolution, decide not to claim or apply privileges it has hitherto claimed. [12]  No one House of Parliament has a right to claim for itself new privileges; new privileges can only be created or old privileges extended by Act of Parliament. [13]  Either House can apply its rights to new circumstances, thereby in some cases creating new instances of contempt. [14] And finally, each House can individually adjudicate and punish breaches of its privileges.

Historical Perspective

Parliamentary privileges were first claimed centuries ago when the English House of Commons was struggling to establish a distinct role for itself within Parliament. In the earliest days, Parliament functioned more as a court than as a legislature, and the early claims to some of these privileges were originally made in this context. [15]  In any case, these privileges were found to be necessary to protect the House and its Members, not from the people, but from the power and interference of the King and the House of Lords. Over time, as the House of Commons gained stature and power as a deliberative assembly, these privileges were established as part of the statute and common law of the land.

The House of Commons in Canada has not had to challenge the Crown, its executive, or the Upper House in the same manner as the British House of Commons. The privileges of the British House of Commons were formally transferred to the Canadian Parliament at the time of Confederation through the Constitution Act, 1867 and were put into force by the enactment of a statute now known as the Parliament of Canada Act[16]  Nonetheless, the privileges enjoyed by the House and its Members are of the utmost importance; they are in fact vital to the proper functioning of Parliament. This is as true now as it was centuries ago when the English House of Commons first fought to secure these privileges and rights.

Privilege in the United Kingdom

Centuries ago, the British House of Commons began its struggle to win its basic rights and immunities from the King. [17]  The earliest cases go back to the fourteenth and fifteenth centuries when several Members and Speakers were imprisoned by the King who took offence at their conduct in Parliament, despite the claims of the House that these arrests were contrary to its liberties. In the Tudor and early Stuart periods, though Parliament was sometimes unable to resist the stronger will of the Sovereign, the conviction continued to be expressed that Parliament, including the House of Commons, was entitled to certain rights. Sir Thomas More, when elected Speaker of the House of Commons in 1523, was among the first Speakers to petition the King to seek the recognition of certain privileges for the House. [18]  By the end of the sixteenth century, the Speaker’s petition to the King had become a fixed practice. [19] 

Despite these early petitions of the Speaker, the King was not above informing the Commons that their privileges, particularly freedom of speech, existed by his sufferance. James I did this in 1621. In protest, the Commons countered “that every Member of the House of Commons hath and of right ought to have freedom of speech… and… like freedom from all impeachment, imprisonment and molestation (other than by censure of the House itself) for or concerning any speaking, reasoning or declaring of any matter or matters touching the Parliament or parliament business”. [20]  In rebuke, James ordered that the Journals of the House be sent to him; he tore out the offending page of protest and then summarily dissolved Parliament. [21] 

Nor was privilege able to prevent the detention or arrest of Members at the order of the Crown. On several occasions in the early seventeenth century, Members were imprisoned without trial while the House was not sitting or after the dissolution of Parliament. In 1626, Charles I arrested two Members of the House while it was in session and, in 1629, judgements were brought against several Members for sedition. These outrages by the Crown were denounced after the Civil War and in 1667 both Houses agreed that the judgement against the arrested Members had been illegal and contrary to the privileges of Parliament. [22] 

In 1689, the implementation of the Bill of Rights confirmed once and for all the basic privilege of Parliament, freedom of speech. Article 9 states “that the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”. [23]  Free speech in the House was now finally established and protected from interference either by the Crown or the courts.

In the late seventeenth century and the first half of the eighteenth century, some claims of the House as to what constituted privilege went too far. The privilege of freedom from arrest in civil matters was sometimes applied not only to Members themselves, but also to their servants. In addition, Members sought to extend their privilege from hindrance or molestation to their property, claiming a breach of privilege in instances of trespassing and poaching. Such practices were eventually curtailed by statute because they clearly became a serious obstruction to the ordinary course of justice. [24]  Thus, privilege came to be recognized as only that which was absolutely necessary for the House to function effectively and for the Members to carry out their responsibilities as Members.

In the midst of their occasional excesses, the House of Lords and the House of Commons both acknowledged that a balance had to be maintained between the need to protect the essential privileges of Parliament and, at the same time, to avoid any risk that would undermine the interests of the nation. In this connection, it was agreed in 1704 that neither House of Parliament had any power, by any vote or declaration, to create for themselves any new privileges not warranted by the known laws and customs of Parliament. [25]  Since then, neither House alone has ever sought to lay claim to any new privilege beyond those petitioned for by Speakers or already established by precedent and law. [26] 

The nineteenth century witnessed numerous cases of privilege, which helped to determine the bounds between the rights of Parliament and the responsibility of the courts. [27]  Perhaps the most famous of the court cases was Stockdale versus Hansard. In 1836, a publisher, John Joseph Stockdale, sued Hansard, the printer for the House of Commons, for libel on account of a report published by order of the House. [28]  Despite numerous resolutions of the House protesting the court proceedings and the committal to prison of Stockdale by the House, the courts refused to acknowledge the claims of the House. “Lord Denman denied … that the lex parliamenti [the Law of Parliament] was a separate law, unknown to the judges of the common law courts. Either House considered individually was only a part of the High Court of Parliament, and neither could bring an issue within its exclusive jurisdiction simply by declaring it to be a matter of privilege. Any other proposition was ‘abhorrent to the first principles of the constitution.’” [29]  In the end, the situation was partially resolved by the enactment of the Parliamentary Papers Act 1840, which gave statutory protection to papers published by order of either House. [30] 

Modern Practice in the United Kingdom

While the late eighteenth and nineteenth centuries saw, for the first time, the systematic study of the history of privilege and contempt, [31]  the culmination of these efforts to understand and elucidate better the constitutional history of Parliament was achieved in 1946 with the publication of the fourteenth edition of May. This edition presented a thorough and elaborate examination of parliamentary privilege based on an exhaustive examination of the Journals and the principles of the law of Parliament. [32]  It also cited instances of misconduct of strangers or witnesses, disobedience to the rules or orders of the House or committees, attempts at intimidation or bribery and molestation of Members or other Officers of the House as cases that more properly involve a contempt of Parliament rather than an explicit breach of an established privilege.

The British House of Commons now takes a more narrowly defined view of privilege than was formerly the case. The change became apparent in 1967 when the Select Committee on Parliamentary Privilege issued a report on the entire subject of privilege. In its report, the Committee noted that the law, practice and procedure relating to privilege at Westminster at that time had been the subject of much criticism. [33] 

The general thrust of the Committee’s view of privilege was evident from a recommendation to forsake the term “privilege” for “rights and immunities”. In justifying this proposal, the Committee wrote:

Your Committee have reached the conclusion that the word “privilege” has in modern times acquired a meaning wholly different from its traditional Parliamentary connotation. In consequence its use could convey to the public generally the false impression that Members are, and desire to be, a “privileged class”. It is out of keeping with modern ideas of Parliament as a place of work and of the status of its Membrs as citizens who have been elected to do within that place of work their duty as representatives of those who elected them. Your Committee cannot too strongly emphasise the fundamental principle that “privileges” are not the prerogative of Members in their personal capacities. Insofar as the House claims and Members enjoy those rights and immunities which are grouped under the general description of “privileges”, they are claimed and enjoyed by the House in its corporate capacity and by its Members on behalf of the citizens whom they represent. Your Committee therefore strongly favour the discontinuance of the use of the term “privilege” in its traditional Parliamentary sense. They believe that if the basic concept of “privileges” or “privilege” is abolished, it will be easier to understand and to concentrate upon the provision of the essential protection which is required by the House, its Members and Officers. [34] 

The Select Committee accepted the need for the radical reform of the law, practice and procedure relating to privilege and especially contempt, agreeing that they required to be simplified and clarified and to be brought into harmony with contemporary thought. The Committee went further to express the conviction that the recognized rights and immunities of the House “will and must be enforced by the courts as part of the law of the land”. [35]  However, with respect to contempts which can extend far beyond the boundaries of those recognized rights and immunities, the Committee proposed that, as a general rule, the House should exercise its authority “ … as sparingly as possible and only when it is satisfied that to do so is essential in order to provide reasonable protection for the House, its Members or its Officers, from such improper obstruction or attempt at or threat of obstruction as is causing, or is liable to cause, substantial interference with the performance of their respective functions”. [36] 

The general thrust and conclusions of the 1967 report were reiterated in a subsequent report of the Committee of Privileges in 1977. This Committee again reviewed the meaning of privilege and contempts and again made recommendations to limit their application to cases of clear necessity. Another recommendation concerned a new procedure for raising complaints in the British House. The practice was for matters of privilege to be raised at the earliest opportunity and for the Speaker to be satisfied that a prima facie (on the first impression or at first glance) case had been established. Failing either of these two requirements, the alleged question of privilege forfeited its claim to priority of consideration before all other matters in the House. [37]  Under the new scheme proposed by the Committee, Members seeking to raise a privilege complaint would give written notice to the Speaker as soon as was practicable after the Member had become aware of the offending incident. If, however, after consideration, the Speaker did not find that the complaint warranted precedence in the House, the Member would be informed by letter and any attempt to raise the matter of privilege in the House would be out of order. If the Speaker did decide in favour of the complaint, the decision was made known to the House and, on the following day, a motion to refer the matter to committee could be considered. [38] 

This recommendation, among others, was implemented. The new procedure had a dramatic effect on the number of claims to privilege raised in the British House. [39]  Because a question of privilege first must be cleared through the Speaker privately before it can be brought to the attention of the House at all, there has been a marked decrease in the claims of breaches of privileges. “The use of the word ‘privilege’ to gain the Speaker’s ear and to secure the chance to raise a political issue unrelated to real privilege… is now almost unknown.” [40]  There are now far fewer trivial cases referred to the Committee of Privileges. In particular, since 1978, there have been no cases of privilege involving what is often referred to as “constructive contempts”, that is, rude or derogatory reflections on Members. In this sense, the new privilege practice has helped to cure a problem first suggested in the 1967 report that Members of the British House of Commons were too sensitive in their reaction to press criticism. In addition, the total number of privilege matters of all kinds referred to committee has been significantly reduced. Finally, the House usually accepts without debate most of the reports now presented by the Committee of Privileges. Only when the Committee finds that there has been a serious breach of privilege or contempt requiring further action does the House consider the report. [41] 

Privilege in Canada

Privilege in the Pre-Confederation British North American Colonies

From the establishment in 1758 of the first legislative assembly in Nova Scotia, the common law accorded the necessary powers to the legislature and its Members to perform their legislative work. “Members had freedom of speech in debate and the right of regulating and ordering their proceedings, and were protected from being arrested in connection with civil cases, because the legislature had first call on their services and attendance.” [42]  As to the power of an Assembly in the colonies to punish and more especially imprison for contempt, the situation was not at all clear. [43]  In effect, the rights enjoyed by the Assemblies in the pre-Confederation period were quite limited. [44]  However, as early as 1758, the House of Assembly of Nova Scotia had an individual arrested and briefly confined because of threats made against a Member of the Assembly. [45] 

In Upper and Lower Canada, the Constitutional Act, 1791, adopted by the British Parliament, was silent on the privileges of the Legislatures, although by 1801 the Speaker of the Legislative Assembly in Upper Canada claimed “by the name of the Assembly, the freedom of speech and generally all the like privileges and liberties as are enjoyed by the Commons of Great Britain our Mother Country”. [46]  Although it had no statutory authority, the Assembly of Upper Canada proceeded to fight for and assert many of the same privileges, such as freedom from arrest while sitting and freedom from jury duty, claimed by the British Commons. The Assembly also claimed the power to send for and question witnesses and to punish any individual who refused to appear or answer questions, using its power of imprisonment to ensure obedience of its orders. Although challenged on occasion, the Assembly was successful in enforcing its privileges, “which though not recognized de jure, were at least recognized de facto”. [47]  In the period prior to responsible government, the Assembly in Upper Canada guarded its reputation by punishing libels against it in the newspapers and also fought for the right to initiate money bills, that is, bills for appropriations and taxation. [48]  In general, the Assembly of Upper Canada was satisfied that it could discharge its functions with the privileges it had. [49] 

In the same period, the Assembly of Lower Canada also asserted both individual and corporate privileges — freedom from arrest and freedom from the obligation to appear in court with respect to civil suits brought against Members, and the right of the Assembly to punish for contempt, no matter the offender. [50]  The Assembly was not afraid to put forward its claims of privilege against the Crown. In 1820, it blocked the conduct of business at the opening of a new Parliament because of a dispute over the return of election writs and again in 1835 over comments made by the Governor about the privileges of the Assembly. [51] 

With the Union Act, 1840 which created the Province of Canada out of Upper and Lower Canada, and especially following the achievement of responsible government, issues of privilege were less frequent or serious. This can be attributed to the fact that responsible government acknowledged the supremacy of the Assembly. The Assembly no longer felt threatened by outside bodies and thus was less sensitive to criticism. Members were less likely to be upset when their rights were unintentionally interfered with, and most infractions of privilege were committed by inadvertence. [52]  “With respect to individual claims, the Assembly became more careful not to use privilege to gain rights for its members over and above the rights belonging to all.” [53] 

As had been the case in the old colonial assemblies, the power to commit or imprison for contempt claimed by the Assembly of the Province of Canada remained an issue. In 1842, it was held “that colonial legislatures had no power to commit for contempt outside the assembly, and in 1866 it was held that they had no power to commit for contempt even when committed in the assembly.” [54] 

Privilege Since Confederation

As has already been stated, the privileges of the British House of Commons were transferred to Canada in the Constitution Act, 1867. Section 18 of the Act was quite explicit in limiting the privileges that can be claimed in Canada to those of the British Parliament. It read:

The Privileges, Immunities, and Powers to be held, enjoyed, and exercised by the Senate and by the House of Commons and by the Members thereof respectively shall be such as are from Time to Time defined by Act of the Parliament of Canada, but so that the same shall never exceed those at the passing of this Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland and by the Members thereof. [55] 

The privileges, immunities and powers of the House are also embodied in sections 4 and 5 of the Parliament of Canada Act[56] 

The manner in which questions of privilege were raised following Confederation was vastly different from today’s procedure. Dozens of cases between 1867 and 1913 followed the same, simple course. A Member would rise, explain the matter of privilege and conclude with a motion calling on the House to take some action — usually that someone becalled to the Bar or that the matter be referred to the Standing Committee on Privileges and Elections for study and report. At that point, without any intervention on the part of the Speaker, debate would begin on the motion, amendments might be moved and, finally, the House would come to a decision on the matter. [57]  The House would then take whatever further action was required by the motion. Perhaps because of the immediate recognition given to Members rising on “questions of privilege”, it was also common throughout this time for Members to take the floor ostensibly to raise such a question, but really to make personal explanations. Members used the claim of a breach of privilege as a ready means to be recognized by the Speaker and to gain the floor in order to state a complaint or grievance of whatever kind. [58]  Here, too, they met with little interference from Chair occupants. [59]  From 1913 to 1958, while the number of “questions of privilege” blossomed for such purposes as the recognition of school groups in the gallery, congratulatory messages, complaints, grievances and a plethora of procedural matters, in addition to the continued “personal explanations”, [60]  the number of legitimate matters of privilege dealt with the House declined dramatically. [61] 

Modern practice in matters of privilege first took root following the publication of the fourth edition of Beauchesne’s Parliamentary Rules and Forms in 1958. Beauchesne included a new section, taken from May, 14th edition, published in 1946, on the manner of raising questions of privilege. [62]  This description of the British procedure soon became a handy reference seized upon by successive Speakers, beginning with Speaker Michener, as a way to curtail spurious interventions by Members on non-privilege matters. It introduced two guiding conditions: whether on the first impression (prima facie) the matter raised appeared to be a matter of privilege, and whether the matter was raised as soon as it could have been. Both were to be determined by the Speaker before a debate could proceed. [63] Nonetheless, on occasion the House adopted motions on matters of privilege without a ruling of the Speaker. [64] 

In the years that followed, successive Speakers kept a tighter rein on “questions of privilege”, even though practice required that the interventions at least be heard, however briefly, before being ruled on. The prima facie condition was invoked most often, although a number of other cases were refused because they were not raised at the proper time. [65]  Several cases arose which permitted the Speaker to find that debate on a matter of privilege should go forward, with the result that a body of precedents began to take shape. For example, a 1959 case (known as the Pallett case) led the Speaker to declare that a proposed motion in which the conduct of a Member was alluded to was not, prima facie, a matter of privilege and could not be given precedence because the proposed motion was not a specific complaint against the Member, [66]  a ruling frequently cited in subsequent years. [67]  In 1964, the Deputy Speaker ruled that questions of privilege could not be raised during proceedings on the adjournment motion, [68]  while in 1975 the House adopted a report which recommended that such matters should not be taken up during Question Period. [69]  Divisions were also judged an inopportune time for raising questions of privilege on matters not related to the business then before the House. [70]  Finally, a number of Speakers, in deciding that a prima facie case did not exist, suggested to the Members concerned that the matter might instead be brought forward through the normal procedure, that is, as a substantive motion after proper notice. [71]  By definition, a matter of privilege also involves a substantive proposal which, because it involves the privileges of the House or of its Members, is given precedence with the usual notice requirements being waived.

Privilege Challenged in Court

An examination of privilege in the Canadian context shows that the constitutionally guaranteed privileges of the House have rarely, if ever, been seriously challenged. Indeed, there have been only two significant court actions; one relating to freedom of speech in the House of Commons and the other concerned with the right of a provincial legislature to control its proceedings.

The first matter, dealing with freedom of speech, arose in a judicial setting, rather than in the House of Commons itself. In the case of the Roman Corporation Limited versus Hudson’s Bay Oil and Gas in 1971, an action was brought against the Prime Minister and the Minister of Energy, Mines and Resources for announcements made in the House of Commons. In its ruling, the Ontario Supreme Court disavowed any jurisdiction over statements made in Parliament based on Article 9 of the English Bill of Rights of 1689. [72]  However, Speakers have always urged Members not to abuse their privilege in light of the damage that can result through the wide dissemination of their remarks through the official printed reports of the House and the television broadcasts of House proceedings. [73] 

The second matter involved the right of the House of Assembly in the province of Nova Scotia, in light of the Canadian Charter of Rights and Freedoms[74]  to exclude strangers from its proceedings. The case involved a claim by the Canadian Broadcasting Corporation (CBC) that its reporters had a constitutional right to film the proceedings of the Nova Scotia House of Assembly with their own cameras. CBC applied to the Nova Scotia Supreme Court for an order allowing it to film the proceedings based on Section 2(b) of the Charter which guarantees freedom of expression, including freedom of the press. The Trial Division and the Court of Appeal both ruled in favour of the CBC and the Speaker of the House of Assembly appealed to the Supreme Court of Canada. [75] The Supreme Court allowed the appeal and overturned the decisions of the lower courts, upholding the absolute authority of the Houses of Parliament and of the legislative assemblies to control their proceedings and reasserting the independence of the different branches of government. [76] 

Reviews of Rights, Immunities and Privileges

On only three occasions has a committee of the House been specifically charged with a direct order of reference to examine the rights, immunities and privileges of the House. The first of these studies took place in the Thirtieth Parliament (1974-79) when the Special Committee on Rights and Immunities of Members was created under the chairmanship of Speaker James Jerome. The Committee presented two reports, one on privilege in the First Session [77]  and one on the sub judice convention in the Second Session. [78]  In its report on privilege, the Special Committee stated that the purpose of privilege was “to allow Members of the House of Commons to carry out their duties as representatives of the electorate without undue interference”. Echoing the recommendation of the 1967 British Select Committee, it also found that the term “privilege” was likely to give rise to misconceptions on the part of the public and so preferred the use of the term “rights and immunities”. The Report also stated that a question of privilege is a serious matter, when validly raised, but was frequently resorted to when no real question of privilege was actually involved. It suggested that another mechanism might be devised to enable Members to challenge reports or to correct statements. The Committee further pointed out that when matters of privilege are raised, the Member involved cannot devote full attention to his or her parliamentary duties until the case is disposed of. Therefore, it was considered desirable that cases of privilege be dealt with as swiftly as possible. The Committee also reported on the advisability of arriving at precise definitions for the terms “parliamentary precinct” (particularly taking into account the fact that parliamentary committees meet outside of Ottawa) and “proceedings in Parliament”. It also proposed to examine the premature publication of confidential reports of parliamentary committees and the sub judice convention. In the First Session, the Special Committee did not pursue these matters further. In the succeeding session, the Committee focussed on the sub judice convention. [79]

The second committee charged with the examination of the rights, immunities and privileges of the House was the Standing Committee on Elections, Privileges, Procedure and Private Members’ Business in the Second Session (1989-91) of the Thirty-Fourth Parliament (1988-93). [80]  While the Committee did take up consideration of the matter, [81]  no report on this topic was tabled in the House.

In December 1989, a third committee was created to review the Parliament of Canada Act regarding the powers, duties and obligations of Members, and regarding the authority, responsibilities and jurisdiction of the Board of Internal Economy. [82]  While this Special Committee focussed its attention on the provisions of the Act and, in particular, on those provisions governing the expenditure of public funds under the authority of the Board of Internal Economy, it also explored the role and responsibilities of Members of Parliament and the nature of financial controls and accountability, among other matters. [83]  In its Second Report, the Special Committee stated that it accepted and endorsed the principle that Members of the House of Commons were not above the law. “Laws must be applied equally to all. Members are not entitled to special treatment, but they deserve assurance that their rights will not be jeopardized or sacrificed. It must be recognized that Members and their activities will be subject to intense public scrutiny.” [84]  The Special Committee recommended that the House reaffirm a number of principles which applied to its Members, one of which was “ … that a Member has the constitutional rights and immunities applicable to that office and independence in the performance of the activities and functions of that office free from interference or intimidation… .” [85] 

In its Third Report which focussed on the execution of search warrants within the parliamentary precinct, the Special Committee stated as part of its recommendations:

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… . [86] 

Privilege Versus Contempt

Any disregard of or attack on the rights, powers and immunities of the House and its Members, either by an outside person or body, or by a Member of the House, is referred to as a “breach of privilege” and is punishable by the House. [87]  There are, however, other affronts against the dignity and authority of Parliament which may not fall within one of the specifically defined privileges. Thus, the House also claims the right to punish, as a contempt, any action which, though not a breach of a specific privilege, tends to obstruct or impede the House in the performance of its functions; obstructs or impedes any Member or Officer of the House in the discharge of their duties; or is an offence against the authority or dignity of the House, such as disobedience of its legitimate commands or libels upon itself, its Members, or its Officers. [88]  “The rationale of the power to punish contempts, whether contempt of court or contempt of the Houses, is that the courts and the two Houses should be able to protect themselves from acts which directly or indirectly impede them in the performance of their functions.” [89]  In that sense, all breaches of privilege are contempts of the House, but not all contempts are necessarily breaches of privilege.

Contempts, as opposed to “privileges”, cannot be enumerated or categorized. As Speaker Sauvé explained in a 1980 ruling, “ … while our privileges are defined, contempt of the House has no limits. When new ways are found to interfere with our proceedings, so too will the House, in appropriate cases, be able to find that a contempt of the House has occurred.” [90] 

Just as it is not possible to categorize or to delineate what may fall under the definition of contempt, it is not even possible to categorize the “severity” of contempt. Contempts may vary greatly in their gravity; matters ranging from minor breaches of decorum to grave attacks against the authority of Parliament may be considered as contempts. [91] 

By far, most of the cases of privilege in the Canadian House relate to matters of contempt challenging the perceived authority and dignity of Parliament and its Members. [92]  Other cases have involved charges made between Members [93]  or media allegations concerning Members. [94]  The premature disclosure of committee reports and proceedings has frequently been raised as a matter of privilege. [95]  However, in those instances where no specific individual has been identified, the matter has not been pursued even though it might appear to involve contempt. [96] 

The reluctance to invoke the House’s authority to reprimand, admonish or imprison anyone found to have trampled its dignity or authority and that of its Members appears to have become a near constant feature of the Canadian approach to privilege. Though the power of the House to imprison remains, it is difficult to foresee circumstances arising that would oblige the House to invoke it. [97]  Members have proven themselves to be fairly thick-skinned when it comes to criticism, even when it appears hard and unfair. They seem willing to endure such treatment from the press and other media rather than raise a potential conflict between the authority of the House and the freedom of the press. [98]  There is, however, no doubt that the Canadian House of Commons remains capable of protecting itself from senseless abuse should the occasion ever arise.

In only a very few cases in Canadian practice has the House, or a procedure committee report, recommended a punishment. A 1976 committee report did chastise a former Member (Auguste Choquette) who claimed that many parliamentarians had obtained undue financial considerations. After the former Member maintained his allegation under questioning, the committee concluded that his attitude was intemperate and irresponsible, but recommended no further consideration be given to the matter. [99]  In the 1987 Parry case, the Committee also did not recommend punishment [100]  and the Member’s apology to the House put an end to the matter. In the 1996 Jacob case, the Committee noted that while the Member’s actions were ill advised, they did not amount to contempt or a breach of parliamentary privilege. [101]  This was also true in the 1998 case concerning the integrity of the House and the Speaker, following comments that were made on the Speaker’s ruling on displaying the flag in the House. In its report, the Standing Committee on Procedure and House Affairs found that the statements attributed to the Members quoted in the Ottawa Sun newspaper did not bring into question the integrity of the House or the Speaker. [102] 

The Structure of Privilege

The privileges of the House can be examined from two vantage points: the rights and immunities of its individual Members and the rights of the House in its collective capacity. Within this framework, the individual Member’s rights are subordinate to those of the House as a whole in order to protect the collectivity against any abuses by individual Members. For instance, a Member’s individual privileges may be considered suspended if the House orders that Member to attend in his or her place and answer questions demanded by the House. It is extremely rare, however, that the rights of the House collectively will be used to override those of an individual. [103]  Some of these immunities are applicable to officials of the House and to individuals summoned by the House on official business. [104] 

In addition, both the House in its collective capacity and Members individually have the responsibility to protect from abuse their rights and immunities, particularly freedom of speech. [105]  Members should avoid any arrangement which might limit their independence as Members: [106]  they should not raise trivial matters as matters of privilege or contempt; and they should not use the privilege of freedom of speech to be unfairly critical of others in debate. [107] The House should exercise its powers with regard to privilege and contempt sparingly and ensure that when exercising its power to punish for contempt, the action it orders is appropriate to the offence.

Rights and Immunities of Individual Members

The rights, privileges and immunities of individual Members of the House are finite, that is to say, they can be enumerated but not extended except by statute or, in some cases, by constitutional amendment, and can be examined by the courts. Moreover, privilege does not exist “at large” but applies only in context, which usually means within the confines of the parliamentary precinct and a “proceeding in Parliament”. With the role of the courts to uphold the Canadian Charter of Rights and Freedoms as well as the Canadian Bill of Rights, Members must avoid creating unnecessary conflicts with private rights and thereby having issues of parliamentary privilege brought before the courts.

Freedom of Speech

By far, the most important right accorded to Members of the House is the exercise of freedom of speech in parliamentary proceedings. It has been described as:

… a fundamental right without which they would be hampered in the performance of their duties. It permits them to speak in the House without inhibition, to refer to any matter or express any opinion as they see fit, to say what they feel needs to be said in the furtherance of the national interest and the aspirations of their constituents. [108] 

Much has been written about this over the centuries — in Great Britain, Canada and throughout the Commonwealth. [109] 

In Odgers’ Australian Senate Practice, this privilege is expressed in broader terms as immunity of proceedings from impeachment and question in the courts. [110]  It is also stated that this is the only immunity of substance possessed by the Houses of Parliament and their Members and committees. [111]  There are two aspects to the immunity. “First, there is the immunity from civil or criminal action and examination in legal proceedings of members of the Houses and of witnesses and others taking part in proceedings in Parliament… . Secondly, there is the immunity of parliamentary proceedings as such from impeachment or question in the courts.” [112] 

The statutory existence of parliamentary privilege in relation to freedom of speech dates from the adoption of the English Bill of Rights in 1689. Though meant to counter the challenge of the Crown, it also prohibited actions of any kind by any person outside the House against Members for what they might say or do in Parliament. Section 9 of that statute declares, “That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”. [113] 

Proceedings in Parliament

No definition of “proceedings in Parliament” is contained in the English Bill of Rights and, as is noted in May, although the courts both in the United Kingdom and elsewhere have commented on the term, no comprehensive lines of decision have emerged and an exhaustive definition has not been achieved. [114]  Maingot has also devoted considerable attention to the term. [115]  In a supplementary memorandum to the 1967 United Kingdom Select Committee on Parliamentary Privilege, the Clerk of the British House of Commons wrote of the term:

The primary meaning, as a technical parliamentary term of “proceedings” (which obtained at least as early as the seventeenth century) is some formal action, usually a decision, taken by the House in its collective capacity. This is naturally extended both to the forms of business on which the House takes action and to the whole process, the principal part of which is debate, by which the House reaches a decision.
An individual Member takes part in proceedings usually by speech, but also by various recognised kinds of formal action, such as voting, giving notice of a motion, etc., or presenting a petition or a report from a Committee, most of such actions being time-saving substitutes for speaking. Officers of the House take part in its proceedings principally by carrying out its orders, general or particular. Strangers can also take part in the proceedings of the House, e.g., by giving evidence before one of its committees, or by presenting petitions for or against private bills.
While taking part in the proceedings of the House, Members, officers and strangers are protected by the same sanction as that by which freedom of speech is protected, namely, that they cannot be called to account for their actions by any authority other than the House itself.
By the insertion of the term “proceedings” in the Bill of Rights, Parliament gave statutory authority to what was implied in previous declarations of the privilege of freedom of speech by the Commons, e.g. in the Protestation of 1621, where it is claimed:
that in the handling and proceeding of those businesses every member of the House of Parliament hath and of right ought to have freedom of speech to propound, treat, reason and bring to conclusion the same… and that every member of the said House hath like freedom from all impeachment, imprisonment and molestation (other than by censure of the House itself) for or concerning any speaking, reasoning or declaring of any matter or matters touching the parliament or parliament business (1 Rushworth, 53).
A general idea of what the term covers is given in the Report of the Select Committee on the Official Secrets Acts in Session 1938-39.
It covers both the asking of a question and the giving written notice of such question, and includes everything said or done by a Member in the exercise of his functions as a member in a committee of either House, as well as everything said or done in either House in the transaction of Parliamentary business. [116] 

In Australia, the Commonwealth Parliament has enacted the Parliamentary Privileges Act 1987 which defines “proceedings in Parliament” as follows:

… all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee, and, without limiting the generality of the foregoing, includes
(a)
the giving of evidence before a House or a committee, and evidence so given;
(b)
the presentation or submission of a document to a House or a committee;
(c)
the preparation of a document for purposes of or incidental to the transacting of any such business; and
(d)
the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published. [117] 

There is no statutory definition of “proceedings in Parliament” in Canada. From the numerous court cases where the law of parliamentary privilege has been applied, it is clear that the courts understand the meaning of the term and see it as part of the law of Canada. However, the courts have been reluctant to extend the immunity deriving from the rule of free speech beyond the context of parliamentary proceedings. In other words, despite the fact that the role of a Member of the House of Commons has evolved considerably since the seventeenth century when the rule was formulated in the Bill of Rights, the courts have, with few exceptions, confined the scope of this immunity to the traditional role of Members as debaters and legislators in Parliament. [118] 

Importance of Freedom of Speech

Freedom of speech permits Members to speak freely in the Chamber during a sitting or in committees during meetings while enjoying complete immunity from prosecution for any comment they might make. [119]  This freedom is essential for the effective working of the House. Under it, Members are able to make statements or allegations about outside bodies or persons, which they may hesitate to make without the protection of privilege. Though this is often criticized, the freedom to make allegations which the Member genuinely believes at the time to be true, or at least worthy of investigation, is fundamental. As in courts of justice, the House of Commons could not work effectively unless its Members were able to speak and criticize without having to account to any outside body. There would be no freedom of speech if everything had to be proven true before it were uttered. Speaker Bosley was required to rule on such a situation in 1984, following a question of privilege. [120]  While finding that there was no prima facie question of privilege, the Speaker affirmed that “the privilege of a Member of Parliament when speaking in the House or in a committee is absolute, and that it would be very difficult to find that any statement made under the cloak of parliamentary privilege constituted a violation of that privilege.” [121]  Paraphrasing Speaker Michener, he went on to note that, unless such conduct has led to the obstruction of other Members or of the House, “the conduct of a Member of Parliament even though reprehensible, cannot form the basis of a question of privilege although it can form the basis of a charge by way of a substantive motion… .” [122]  It should be borne in mind that this right is also extended to individuals summoned to appear before the House or its committees. [123] 

Limitations on Freedom of Speech

Remarks Made Outside of Debate

The privilege of freedom of speech is not limitless and grey areas remain. Members may be confident of the protection given to their speeches in the House and other formal proceedings, but can never be certain how far their freedom of speech and parliamentary action extends. [124]  The parliamentary privilege of freedom of speech applies to a Member’s speech in the House and other proceedings of the House itself, but may not apply to reports of proceedings or debates published by newspapers or others outside Parliament. Parliamentary privilege may not protect a Member publishing his or her own speech separate from the official record. [125] 

Members are therefore cautioned that utterances which are absolutely privileged when made within a parliamentary proceeding may not be when repeated in another context, such as in a press release, a householder mailing, a telegram, on an Internet site, a television or radio interview, at a public meeting or in the constituency office. Members also act at their peril when they transmit otherwise libellous material for purposes unconnected with a parliamentary proceeding. Thus, comments made by a Member at a function as an elected representative — but outside the forum of Parliament— would not be covered by this special privilege, even if the Member were quoting from his or her own speech in the Debates of the House of Commons. [126]  Telecommunications, including new technology such as electronic mail, facsimile machines and the Internet, should therefore not be used to transmit otherwise libellous material.

The publication of libellous material has been considered by most courts to be beyond the privileges of Parliament when such publication was not part of the parliamentary process to begin with. [127]  Courts take a distinctly “functional” approach to the interpretation of parliamentary privilege by relating any novel situation in which a Member may become involved back to the function and purpose that parliamentary privilege was originally intended to serve: the need for Members of Parliament to be able to fearlessly debate issues of public policy in Parliament. Thus even correspondence between one Member and another on a matter of public policy may not be considered to be privileged. [128] 

Misuse of Freedom of Speech

The privilege of freedom of speech is an extremely powerful immunity and Speakers have on occasion had to caution Members about its misuse. In a ruling following a question of privilege, [129]  Speaker Fraser urged Members to take the greatest care in framing questions concerning conflict of interest guidelines. Since the question raised affected the very nature of Members’ rights and immunities, he spoke at length about the importance of freedom of speech and the need for care in what Members said:

There are only two kinds of institutions in this land to which this awesome and far-reaching privilege [of freedom of speech] extends — Parliament and the legislatures on the one hand and the courts on the other. These institutions enjoy the protection of absolute privilege because of the overriding need to ensure that the truth can be told, that any questions can be asked, and that debate can be free and uninhibited. Absolute privilege ensures that those performing their legitimate functions in these vital institutions of Government shall not be exposed to the possibility of legal action. This is necessary in the national interest and has been considered necessary under our democratic system for hundreds of years. It allows our judicial system and our parliamentary system to operate free of any hindrance.
Such a privilege confers grave responsibilities on those who are protected by it. By that I mean specifically the Hon. Members of this place. The consequences of its abuse can be terrible. Innocent people could be slandered with no redress available to them. Reputations could be destroyed on the basis of false rumour. All Hon. Members are conscious of the care they must exercise in availing themselves of their absolute privilege of freedom of speech. That is why there are long-standing practices and traditions observed in this House to counter the potential for abuse. [130] 

In a ruling following a point of order, Speaker Parent also emphasized the need for Members to use great care in exercising their right to speak freely in the House: “ … paramount to our political and parliamentary systems is the principle of freedom of speech, a member’s right to stand in this House unhindered to speak his or her mind. However when debate in the House centres on sensitive issues, as it often does, I would expect that members would always bear in mind the possible effects of their statements and hence be prudent in their tone and choice of words”. [131] 

Speakers have also stated that although there is a need for Members to express their opinions openly in a direct fashion, it is also important that citizens’ reputations are not unfairly attacked. In a ruling on a question of privilege, [132]  Speaker Fraser expressed his concern that an individual who was not a Member of the House had been referred to by name and noted that this concern had also been shared by some Members who had participated in the discussion of the question of privilege. He then went on to say: “But we are living in a day when anything said in this place is said right across the country and that is why I have said before and why I say again that care ought to be exercised, keeping in mind that the great privilege we do have ought not to be abused.”

In a later ruling following a point of order, [133]  Speaker Fraser observed that the use of suggestive language or innuendo with regard to individuals or an individual’s associations with others can provoke an angry response which inevitably leads the House into disorder. The Speaker stated that he was heartened by Members’ comments and a general sense of the necessity to maintain decorum, for the sake of the House and the viewing public. Specifically referring to individuals outside the Chamber, he agreed with a suggestion that the House consider constraining itself “ … in making comments about someone outside this Chamber which would in fact be defamatory under the laws of our country if made outside the Chamber… .” [134] 

Sub judice Convention

There are other limitations to the privilege of freedom of speech, most notably the sub judice convention. [135] It is accepted practice that, in the interests of justice and fair play, certain restrictions should be placed on the freedom of Members of Parliament to make reference in the course of debate to matters awaiting judicial decisions and that such matters should not be the subject of motions or questions in the House. Though loosely defined, the interpretation of this convention is left to the Speaker. The word “convention” is used as no “rule” exists to prevent Parliament from discussing a matter which is sub judice (“under the consideration of a judge or court of record”). The acceptance of a restriction is a voluntary restraint on the part of the House to protect an accused person or other party to a court action or judicial inquiry from suffering any prejudicial effect from public discussion of the issue. [136]  While certain precedents exist for the guidance of the Chair, no attempt has ever been made to codify the practice in Canada. [137] 

The sub judice convention is important in the conduct of business in the House. It protects the rights of interested parties before the courts, and preserves and maintains the separation and mutual respect between the legislature and the judiciary. The convention ensures that a balance is created between the need for a separate, impartial judiciary and free speech.

The practice has evolved so that it is the Speaker who decides what jurisdiction the Chair has over matters sub judice. In 1977, the First Report of the Special Committee on the Rights and Immunities of Members [138]  recommended that the imposition of the convention should be done with discretion and, when there was any doubt in the mind of the Chair, a presumption should exist in favour of allowing debate and against the application of the convention. Since the presentation of the report, Speakers have followed these guidelines while using discretion.

Authority of the Speaker

A further limitation on the freedom of speech of Members is provided by the authority of the Speaker under the Standing Orders to preserve order and decorum, and when necessary to order a Member to resume his or her seat if engaged in irrelevance or repetition in debate, or to name a Member for disregarding the authority of the Chair and order him or her to withdraw. [139] 

Freedom from Arrest in Civil Actions

Freedom from arrest in civil actions [140]  is the oldest privilege of the House of Commons, pre-dating freedom of speech in the United Kingdom. [141]  The immunity exists because the House has the pre-eminent claim to the attendance and service of its Members, free from restraint or intimidation particularly by means of legal arrest in civil process. It has only applied to arrest and imprisonment under civil process and does not interfere with the administration of criminal justice. It is not claimable for any incident having a criminal character or a criminal nature, for treason, felony, [142]  breach of the peace, matters including criminal offences under federal statutes, breaches of provincial statutes (considered quasi-criminal) which involve the summary jurisdiction of the Criminal Code[143]  or any indictable offence. [144] 

It goes without saying that if Members are charged with infractions of the law, then they must abide by the due process of law just like any other citizen. To do otherwise would be contemptful of the justice system. While a Member is protected from arrest for civil contempt of court, there is no protection from arrest for criminal contempt of court. [145]  If a Member is arrested on a criminal charge or is committed for a contempt of court, the House should be notified by the authorities if it is in session. If a Member is committed for high treason or any criminal offence, the House is informed by way of a letter addressed to the Speaker by the judge or magistrate. [146] 

Whatever privilege of freedom from arrest a Member may claim, it exists from the moment of the execution of the return of the writ of election by the returning officer. It continues while the House is sitting and also applies 40 days before and after a session of Parliament and 40 days after a dissolution of Parliament. [147] 

Exemption from Jury Duty

Since the House of Commons has first claim on the attendance and service of its Members, and since the courts have a large body of individuals to call upon to serve on juries, it is not essential that Members of Parliament be obliged to serve as jurors. This was the tradition in the United Kingdom long before Confederation and this has been the Canadian practice since 1867. [148]  The duty of Members to attend to their functions as elected representatives is in the best interests of the nation and is considered to supersede any obligation to serve as jurors. It has also been recognized in law. [149] 

One of the rights of the House is to provide for the protection of its officers so that they may assist in its deliberations. Therefore, officers of the House are exempt from jury duty under the same circumstances as Members, as are individuals summoned to appear before the House or its committees. [150] 

Exemption from Appearing as a Witness

The right of the House to the attendance and service of its Members exempts a Member, when the House is in session, [151]  from the normal obligation of a citizen to comply with a subpoena to attend a court as a witness. [152]  This exemption applies in civil, criminal and military matters before the courts. [153]  However, this claim is not intended to be used to impede the course of justice and, therefore, is regularly waived, particularly for criminal cases. [154]  When the House is in session, should a subpoena be served on a Member, the Member may wish to appear in court where he or she feels that absence from court might affect the course of justice. However, the Member still has a right to claim the privilege of exemption from appearing as a witness. [155]  A Member may give evidence voluntarily without any formality, even on a day when the House is sitting or scheduled to meet, [156]  but if he or she does so, no claim of privilege may be made and the Member is required to give evidence. [157] 

If a subpoena is to be served in a Member’s parliamentary office, the permission of the Speaker must be sought in advance. This was most forcefully stated by Speaker Fraser in a ruling given in May 1989, following a question of privilege raised by David Kilgour (Edmonton–Strathcona) involving the rights of Members appearing as witnesses in court. [158]  In his submission, Mr. Kilgour stated that in March 1989, while Parliament was prorogued, a subpoena authorized by a British Columbia Supreme Court Justice was served on him 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. Subsequent to a letter from one of the counsel indicating that Mr. Kilgour was ordered by the Judge to appear, the Member complied and attended in the Kelowna Court. Mr. Kilgour refused to give evidence upon being questioned, and just prior to his being cited for contempt, the counsel for the plaintiff withdrew the subpoena. [159] 

In his ruling, Speaker Fraser spoke first about the manner in which the subpoena had been served on the Member and noted that since the permission of the Speaker had not been sought nor obtained for this service, 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”. [160]  With regard to the privilege of exemption from attending as a witness in a court of law, the Speaker pointed out that although Parliament was prorogued, according to May and Bourinot, the Member’s immunity persisted throughout this period. However, since Mr. Kilgour had accepted to attend in the court, he had essentially waived that privilege. The Speaker noted: “By waiving his privilege, being sworn and answering some questions, he appears to have voluntarily submitted to the jurisdiction of the court. Once this privilege is waived, the Member surrenders the protection implicit in it.” The Speaker had been very disturbed by the fact that the counsel for the plaintiff in this case had questioned Mr. Kilgour’s right “to claim his parliamentary immunity, alleging that this was a matter for the court to decide”. He then stated “ … for the record that the right of a Member of Parliament to refuse to attend court as a witness during a parliamentary session and during the 40 days preceding and following a parliamentary session is an undoubted and inalienable right supported by a host of precedents”. He urged Members “ … to refuse to accept any writ of summons within the precincts and to report to the Speaker should such an attempt be made”.

Just as in the case of jury service, House officials or individuals summoned to appear before the House or its committees are also exempt from appearing as witnesses if their services are needed by the House. [161] 

Freedom from Obstruction, Interference, Intimidation and Molestation

Members are entitled to go about their parliamentary business undisturbed. The assaulting, menacing, or insulting of any Member on the floor of the House or while he is coming or going to or from the House, or on account of his behaviour during a proceeding in Parliament, is a violation of the rights of Parliament. Any form of intimidation (it is a crime to commit “an act of violence in order to intimidate the Parliament of Canada”) of a person for or on account of his behaviour during a proceeding in Parliament could amount to contempt. [162] 

Members of Parliament, by the nature of their office and the variety of work they are called upon to perform, come into contact with a wide range of individuals and groups. Members can, therefore, be subject to all manner of influences, some legitimate and some not. Certain matters, most notably bribery, the acceptance of fees and corrupt electoral practices are dealt with in law. [163]  Over the years, Members have brought to the attention of the House instances which they believed were attempts to obstruct, impede, interfere, intimidate or molest them, their staffs or individuals who had some business with them or the House. In a technical sense, such actions are considered to be contempts of the House and not breaches of privilege. [164]  Since these matters relate so closely to the right of the House to the services of its Members, they are often considered to be breaches of privilege.

Speakers have consistently upheld the right of the House to the services of its Members free from intimidation, obstruction and interference. Following a question of privilege, Speaker Lamoureux ruled that, while in the particular case before him there was no prima facie question of privilege, he had “ … no hesitation in reaffirming the principle that parliamentary privilege includes the right of a member to discharge his responsibilities as a member of the House free from threats or attempts at intimidation”. [165]  In ruling on another question of privilege, Speaker Bosley stated further that the threat or attempt at intimidation cannot be hypothetical, but must be real or have occurred. [166] 

Physical Obstruction, Assault and Molestation

In circumstances where Members claim to be directly obstructed, impeded, interfered with or intimidated in the performance of their parliamentary duties, the Speaker is apt to find that a prima facie breach of privilege has occurred. This may be physical obstruction, assault or molestation.

On October 30, 1989, Speaker Fraser ruled that a prima facie case of privilege existed when Herb Gray (Windsor West) raised a question of privilege, claiming that a RCMP roadblock on Parliament Hill, meant to contain demonstrators, constituted a breach of Members’ privileges by denying them access to the House of Commons. [167] 

On February 17, 1999, a number of questions of privilege were raised resulting from picket lines set up by members of the Public Service Alliance of Canada at strategic locations of entry to Parliament Hill and at entrances to specific buildings used by parliamentarians. Jim Pankiw (Saskatoon–Humboldt) in his submission stated that the strikers had used physical violence and intimidation to stop him from gaining access to his office. On this matter, Speaker Parent ruled immediately that there was a prima facie case of privilege. Mr. Pankiw moved that the matter of his molestation be referred to the Standing Committee on Procedure and House Affairs and it was agreed to without debate. [168]  Other questions of privilege, raised by John Reynolds (West Vancouver–Sunshine Coast), Roy Bailey (Souris–Moose Mountain) and Garry Breitkreuz (Yorkton–Melville), focussed on the difficulties Members had had in gaining access to their offices. The picket lines, it was claimed, impeded Members from performing their duties and meeting their obligations as Members of Parliament in a timely fashion. The next day, noting that the Speaker is the guardian of the rights of Members, Speaker Parent stated in his ruling that he had been persuaded by the interventions made by the three Members who had raised the matter and had decided that their concerns were sufficiently serious for the Chair to act. Therefore, he found that the incident of the previous day of impeding access to the parliamentary precinct constituted a prima facie case of contempt of the House and invited Mr. Reynolds to move the appropriate motion. The Member moved that the matter be referred to the Standing Committee on Procedure and House Affairs, and the motion was adopted without debate. [169] 

Other Examples of Obstruction, Interference and Intimidation

The unjust damaging of a Member’s good name might also be seen as constituting an obstruction. In ruling on a question of privilege, [170]  Speaker Fraser stated: “The privileges of a Member are violated by any action which might impede him or her in the fulfilment of his or her duties and functions. It is obvious that the unjust damaging of a reputation could constitute such an impediment. The normal course of a Member who felt himself or herself to be defamed would be the same as that available to any other citizen, recourse to the courts under the laws of defamation with the possibility of damages to substitute for the harm that might be done. However, should the alleged defamation take place on the floor of the House, this recourse is not available.” [171] 

In finding a prima facie case of privilege on March 21, 1978, Speaker Jerome ruled that the electronic surveillance of a Member beyond the parliamentary precinct “ … could be regarded as a form of harassment or obstruction or molestation or intimidation of a Member, all of which phrases have been used in our precedents to support the position that such conduct is a contempt of the House.” [172]

On May 6, 1985, Speaker Bosley ruled that there was a prima facie question of privilege in a case where a newspaper advertisement identified another person as a Member of Parliament rather than the sitting Member. [173]  He stated: “It should go without saying that a Member of Parliament needs to perform his functions effectively and that anything tending to cause confusion as to a Member’s identity creates the possibility of an impediment to the fulfilment of that Member’s functions. Any action which impedes or tends to impede a Member in the discharge of his duties is a breach of privilege. There are ample citations and precedents to bear this out.” [174] 

On December 6, 1978, in finding that a prima facie contempt of the House existed, Speaker Jerome ruled that a government official, by deliberately misleading a Minister, had impeded a Member in the performance of his duties and consequently obstructed the House itself. [175] 

In another example involving a government official, Speaker Francis found a prima facie case of privilege involving the intimidation of an employee of a Member. In a ruling given on February 20, 1984, the Speaker stated: “A threat emanating from any government department or public corporation to withhold information or co-operation from a Member of Parliament would undoubtedly hinder that Member in the fulfilment of his or her parliamentary duties and therefore constitute a breach of privilege. By the same token, an offer of favourable treatment on condition that questions are first cleared with the office concerned would also violate privilege in an equally fundamental way… . It is therefore the view of the Chair that an action which amounts to a form of intimidation does not need to be directed at the Member in person in order to constitute an offence in terms of privilege.” [176] 

Just as prima facie cases of privilege have been found for the intimidation of Members and their staff, the intimidation of a committee witness was also found to be prima facie contempt by Speaker Fraser on December 4, 1992. The matter was referred by the House to the Standing Committee on House Management for consideration. [177]  The Committee presented its Sixty-Fifth Report to the House on February 18, 1993, and the Report was concurred in by the House on February 25. [178]  In its report, the Committee reaffirmed the principles of parliamentary privilege and the extension of privilege to witnesses. The report stated: “The protection of witnesses is a fundamental aspect of the privilege that extends to parliamentary proceedings and those persons who participate in them. It is well established in the Parliament of Canada, as in the British Parliament, that witnesses before committees share the same privileges of freedom of speech as do Members. Witnesses before parliamentary committees are therefore automatically extended the same immunities from civil or criminal proceedings as Members for anything that they say before a committee… . The protection of witnesses extends to threats made against them or intimidation with respect to their presentations before any parliamentary committee.” [179] 

Intimidation of the Speaker and Other Chair Occupants

As with the intimidation of a Member or witness, the intimidation or attempted intimidation of the Speaker or any other Chair occupant is viewed very seriously by the House. On three occasions, the House has viewed criticisms of the impartiality of the Chair as attempts at intimidation and, therefore, as privilege matters. [180] On December 22, 1976, the House adopted a motion finding that a statement made in a newspaper article about Speaker Jerome was a gross libel on the Speaker and that the publication of the article was a gross breach of the privileges of the House. [181]  On March 23, 1993, Speaker Fraser ruled that a question of privilege regarding comments on the impartiality of a Chair occupant by a Member of the House was a prima facie case of privilege, noting that an attack against the integrity of an officer of the House was also an attack against the House. [182]  On March 9, 1998, Peter MacKay (Pictou–Antigonish–Guysborough) rose on a question of privilege to claim that quotations attributed to certain Members of the House in a newspaper article constituted an attempt to intimidate the Speaker and, collectively, the House. The Member was concerned that comments, attributed by the media to Members about matters which were before the Chair for adjudication and suggesting that if the Speaker ruled a particular way he should be removed, were attempting to influence the ruling of the Chair. Speaker Parent ruled that there was a prima facie case of privilege. [183] 

Constituency or Politically Related Instances

In instances where Members have claimed that they have been obstructed or harassed, not directly in their roles as elected representatives but while being involved in matters of a political or constituency-related nature, Speakers have consistently ruled that this does not constitute privilege.

On July 15, 1980, in finding that there was no prima facie case of privilege in relation to a Member’s constituency work, Speaker Sauvé stated: “While I am only too aware of the multiple responsibilities, duties, and also the work the member has to do relating to his constituency, as Speaker I am required to consider only those matters which affect the member’s parliamentary work. That is to say, whatever duty a member has to his constituents, before a valid question of privilege arises in respect of any alleged interference, such interference must relate to the member’s parliamentary duties. In other words, just as a member is protected from anything he does while taking part in a proceeding in Parliament, so too must an interference relate to the member’s role in the context of parliamentary work.” [184] 

This view was further reinforced in a ruling given on November 17, 1987, by Speaker Fraser, following a question of privilege on a matter involving the staff of a Member, a constituent, and an officer of the Correctional Services. The Speaker ruled that there was no prima facie case of privilege explaining “ … I am sure Hon. Members will appreciate that this matter does not fall within the restricted scope of the concept of parliamentary privilege… . Indeed, I can go further and state that even without the direct involvement of the staff person and with the direct involvement of the Member himself, I could not find that a prima facie case of privilege exists.” [185] 

Importance of Relationship to Parliamentary Duties

In some cases where prima facie privilege has not been found, the rulings have focussed on whether or not the parliamentary duties of the Member were directly involved. While frequently noting that Members raising such matters might have legitimate complaints, Speakers have regularly concluded that Members have not been prevented from performing their parliamentary duties. The following cases illustrate this.

In two 1978 cases, the Speaker ruled that since the Members’ parliamentary duties had not been directly infringed upon, no prima facie breach of privilege existed. In the first case, involving Ron Huntington (Capilano), the Speaker had difficulty in accepting that the Member’s complaint concerning a civil suit brought against him constituted harassment or obstruction in the narrow sense and further expressed concern about extending the definition of privilege. In ruling that he could find no prima facie case of privilege, Speaker Jerome noted: “It seems quite clear that this matter has caused the member certain difficulties in the performance of his duties as a member of parliament, but I have trouble in accepting the argument that these difficulties constitute obstruction or harassment in the narrow sense in which one must construe the privilege of freedom from molestation, particularly in the face of what must be construed as being ordinary access to the courts of the land, which surely ought to be something parliament would interfere with only upon the most grave and serious grounds.” [186] 

The second 1978 case was raised by Simma Holt (Vancouver–Kingsway) on November 2, 1978. In ruling that there was no prima facie question of privilege, Speaker Jerome stated: “Since the member was not in the circumstances acting in the official capacities which are surrounded by privilege — that very narrow category — it would, I think, be unwarranted extension of the precedents to extend privilege with respect to an act which was directed to her person in the circumstances”. [187]  In ruling, the Speaker noted that society demands much of Members but not all demands strictly impose a parliamentary duty. Every Member has duties as a representative of the electorate. A Member may only claim the protection of privilege relating to his or her parliamentary duties, “particularly in his primary duty or service to this House of Commons here”, though the line distinguishing these duties might blur. However, as Maingot has pointed out, while assaults on Members that occur outside the precinct and that are unrelated to the Member’s parliamentary duties do not amount to contempt, the same assault occurring within the precinct, yet unrelated to a proceeding in Parliament, would constitute contempt of the House. [188] 

On May 15, 1985, Douglas Frith (Sudbury) rose on a question of privilege claiming that his ability to serve his constituents was being infringed or impeded by a departmental directive restricting the release of information about a government program. In ruling that, while the Member did have a complaint, there was no prima facie question of privilege, Speaker Bosley noted that the purpose of parliamentary privilege was to protect freedom of speech in the House and to protect the institution from threats, obstructions and intimidations. [189] 

Again on May 1, 1986, Speaker Bosley ruled that there was no prima facie case of privilege on a matter raised by Sheila Copps (Hamilton East). Reiterating the reasons invoked in previous rulings, the Speaker stated: “If an Hon. Member is impeded or obstructed in the performance of his or her parliamentary duties through threats, intimidation, bribery attempts or other improper behaviour, such a case would fall within the limits of parliamentary privilege. Should an Hon. Member be able to say that something has happened which prevented him or her from performing functions, that he or she has been threatened, intimidated, or in any way unduly influenced, there would be a case for the Chair to consider.” [190] 

On December 9, 1986, in ruling on a question of privilege raised by Nelson Riis (Kamloops–Shuswap), claiming that the information provided by the government at a press conference concerning a bill not yet introduced in the House amounted to a breach of privilege, Speaker Fraser stated that in no way had the actions of the Minister impeded or obstructed any Member in the discharge of his or her duties. [191] 

On March 24, 1994, Speaker Parent ruled on a question of privilege raised by Jag Bhaduria (Markham–Whitchurch–Stouffville) who had claimed he was being intimidated by the media and had received blackmail threats as a result of media reports concerning the authenticity of the Member’s academic credentials. In finding that there was no prima facie question of privilege, the Speaker stated: “Threats of blackmail or intimidation of a Member of Parliament should never be taken lightly. When such occurs, the very essence of free speech is undermined. Without the guarantee of freedom of speech, no Member of Parliament can do his duty as is expected… . While the Chair does not in any way make light of the specifics that have been raised… I cannot, however, say that he has sufficiently demonstrated that a case of intimidation exists such that his ability to function as a member of Parliament has been impeded.” [192] 

In another instance involving written questions on the Order Paper, John Williams (St. Albert) claimed that an unnamed official in the office of the Leader of the Government in the House had deliberately tried to interfere with the Member by denying him a response to his questions. Based on quotations by the media, the Member claimed that the official’s “arrogance and insolence… in the face of Parliament” were contemptuous. In a ruling given on May 6, 1996, Speaker Parent noted: “ … it is very difficult to accept the veracity of the remarks allegedly made by an unidentified person in the government House leader’s office. As such, I cannot find that the member has been obstructed in performing his duties and hence there is no question of privilege.” [193] 

Rights of the House as a Collectivity

In contrast to the privileges and immunities of individual Members, which are finite, the privileges and powers of the House of Commons as a collectivity do not lend themselves to specific definition. The privileges needed by the House to perform its constitutional duties require the power to protect itself and punish any transgressions against it. [194]  Much like a court of law, the House of Commons enjoys very wide latitude in maintaining its dignity and authority through its exercise of contempt power, which is inherent to any superior court. In other words, the House may through its orders consider any misconduct to be contempt and may deal with it accordingly. This area of parliamentary law is therefore extremely fluid and most valuable for the Commons to be able to meet novel situations.

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, requires the attendance of witnesses, and orders the production of documents; the Parliament of Canada Act confers the right to administer oaths to witnesses. [195] 

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

  • the power to discipline;
  • the regulation of its own internal affairs;
  • the authority to maintain the attendance and service of its Members;
  • the right to institute inquiries and to call witnesses and demand papers;
  • the right to administer oaths to witnesses;
  • the right to publish papers containing defamatory material.

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

Power to Discipline

Whether it is against its own Members, staff or “strangers”, the House has the power to discipline whoever is guilty of a misconduct, which it considers to amount to a breach of privilege or contempt. Article 9 of the Bill of Rights gives both Members and strangers 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. [196]  This power affords the House a wide range of penalties for dealing with misconduct: non-Members may be removed from the galleries of the Chamber or from the parliamentary precinct, be given a reprimand, or incarcerated; Members may be called to order, directed to cease speaking because of persistent repetition and irrelevance in debate, “named” for disregarding the authority of the Chair, suspended from the service of the House, incarcerated or even expelled. The disciplinary power of the House is to some extent regulated through the Standing Orders so that each case need not be raised formally in the House in order to be dealt with efficiently. [197]  For example, this disciplinary power allows the House, through its Officers, to refuse entry to a stranger who has on previous occasions been guilty of misconduct in the public galleries or corridors.

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. [198]  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: the House has the right to reprimand and to imprison only until the end of the session; it does not have the power to impose fines. [199]  In Canada, Parliament has been reluctant to use these powers and such cases have been rare. With the adoption of the Charter of Rights and Freedoms, there is even some question as to the constitutionality of Parliament’s right to impose incarceration. [200] 

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

On a number of occasions in the late nineteenth and early twentieth centuries, individuals were summoned to appear before the Bar of the House. The Bar is a brass rod extending across the floor of the Chamber inside its south entrance beyond which strangers are not allowed. Individuals who are in contempt of the House — that is, are guilty of an offence against the dignity or authority of Parliament — may be formally summoned by the House to appear before it, if the House adopts a motion to that effect. When summoned, the individual stands at the Bar. The House has ordered Members to attend in their places in the House and has summoned others 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 the Bar is an extraordinary event which places the Member or individual under the authority of the House vested with its full disciplinary powers.

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. The House 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. [201] 

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 allowed to withdraw. [202] 

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 7, 1873, but never appeared at the Bar as Parliament was prorogued on November 7. [203] 

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 murder of Thomas Scott. He failed to attend and was later expelled from the House. Three witnesses were summoned to appear at the Bar (the Attorney-General of Manitoba and two police officers of Ottawa) in relation to the Riel matter. All three appeared and were questioned. [204] 

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 asked 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 read to him before he was discharged. [205] 

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. [206] 

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. [207] 

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. [208] 

In 1894, two witnesses (Messrs. Provost and 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. [209] 

In 1906, William T. Preston, Inspector of Canadian Immigration in Europe, was a witness before the Agriculture and Colonization Committee as well as the Public Accounts Committee and 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 Preston was not required to appear, and the motion was adopted as amended. [210] 

Also in 1906, a Member complained about a newspaper article; it was read and a motion was adopted summoning its author, E.E. Cinq-Mars, to appear before the Bar of the House. Mr. Cinq-Mars appeared and answered questions during that sitting of the House and at another sitting. The House then adopted a motion of censure against him, which was read to him before he was discharged. [211] 

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 give 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. [212] 

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 a Member, Ian Waddell (Port Moody–Coquitlam), had attempted to take hold of the Mace as it was carried out of the Chamber. The Speaker found a prima facie case of contempt, and the House adopted an order finding Mr. Waddell guilty of contempt and calling him 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. [213] 

Taking Individuals into Custody and Imprisonment

The House of Commons possesses the right to confine individuals as a punishment for contempt. [214]  On occasion, it has ordered the Sergeant-at-Arms to take individuals into custody and has ordered the imprisonment of others. In May 1868, a Member 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 and no further action was taken. [215]  In 1873, two Members, Sir John A. Macdonald and Frederick Pearson, were members of a committee and failed to appear when they were to be sworn in. A motion was adopted in the House to have them taken into the custody of the Sergeant-at-Arms. When Mr. Macdonald appeared, another Member read an affidavit stating that he 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. [216]  In the November 1873 Heney case, the alderman was held in custody from November 4 to 7. [217]  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. [218] 

Expulsion

Parliamentary privilege holds Members responsible for acting in character with the function they fulfil 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 Canadian House with the same privileges, immunities, and powers as enjoyed by the British House of Commons, the Canadian 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. [219] 

Even this most drastic power has 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. [220] 

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.” [221] 

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. [222]  In the autumn of that year, he was re-elected as Member for Provencher. Mr. Riel’s second expulsion occurred in February 1875. On February 22, 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. [223] 

In 1891, Thomas McGreevy (Quebec West) was accused by Israel Tarte (Montmorency) of corrupt practices concerning construction work in the Quebec Harbour, 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. [224] 

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. [225] 

Regulation of Internal Affairs

The exclusive right of the House of Commons to regulate its own internal affairs refers especially to its control of its own agenda and proceedings. [226]  For example, courts or other institutions cannot direct the affairs of the Commons, [227]  even when it may be in the interests of justice that cases pending before the courts not be discussed in a manner that might prejudice the outcome of such cases. The House of Commons is not obliged to restrain itself in matters sub judice so as to accommodate the interests of justice. While, by convention, parliamentarians often exercise caution in deference to the courts, there is no legal obligation to do so. That is because there may be an equally important public interest in the public debate of issues which happen also to be before the courts. [228]  Indeed, the passage of legislation by Parliament is often deliberately intended to influence the outcome of court cases.

The House of Commons is normally free from judicial review of its decisions when these are made pursuant to Standing Order, sessional order or resolution. [229]  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. [230]  If 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 exclusive right of the House of Commons to regulate its own internal affairs has also been construed to mean that local or provincial regulatory legislation does not ordinarily apply within the parliamentary precinct. Thus, for example, liquor permits are not required in order to operate a bar within the precinct, and elevators need not be certified safe by provincial authorities. [231]  Process servers ordinarily may not enter the precinct in order to serve civil process on anyone. [232]  Although the precinct of Parliament is not intended to be a sanctuary, the dignity of the House of Commons requires also that police forces not enter the precinct to investigate the commission of an offence without permission from the Speaker or the Sergeant-at-Arms. [233] 

The Authority to Maintain the Attendance and Service of its Members

The Standing Orders of the House 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. [234]  Ordinarily, the attendance of Members to their duties is not enforced by the House, and alluding to the presence or absence of Members in the Chamber is considered to be out of order. [235]

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. May notes: “Attendance upon the service of Parliament includes the obligation to fulfil the duties imposed upon Members by the orders and regulations of the House”. [236] 

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

The ability of Parliament to institute its own inquiries, to require the attendance of witnesses and to order the production of documents is fundamental to its proper functioning. It is as old as Parliament itself. Much of this power is now exercised by committees pursuant to powers delegated to them in the Standing Orders. [237]  “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.” [238] 

The Right to Administer Oaths to Witnesses

The right of the House and of its committees to examine witnesses under oath, [239]  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[240]  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. It also stipulates that any person examined under oath who wilfully gives false evidence is liable to the penalties for perjury.

The Right to Publish Papers Containing Defamatory Material

The Parliament of Canada Act [241]  provides protection for the publication, by order of the House, of any parliamentary paper which may contain or have appended to it defamatory material. [242]  This includes all documents published by a committee acting under the authority of the House. This right is not intended to protect the publication of libels that may be contained in other documents, such as the householder mailings of Members.

The Inherent Limitations of Privilege

The collective privileges of the House of Commons and the individual privileges of its Members are subject to limitations. The courts have certain powers to delineate the rights claimed by Parliament, and statutory law has been used in some Parliaments to codify these rights, immunities and privileges. This section will examine the role of the courts in limiting privilege, the impact of codifying privilege into statutory law, and the relationship between privilege and the Constitution.

The Impact of the Courts on Privilege

It is frequently stated that Parliament is the highest court in the land. This is true in that it is the high court of public opinion where the concerns of the electorate are voiced by their chosen representatives. It is also true that, in the medieval period, the English Parliament had a judicial role, where Parliament was seen primarily as a court of justice, the High Court of Parliament, a court of last resort consisting of the King and the lords temporal. [243]  This role has all but disappeared in the United Kingdom. [244]  The Canadian Parliament has never had a judicial role. [245] 

The privileges enjoyed by Parliament are a part of the general and public law of Canada. As such, the courts may judicially take notice of and interpret these privileges as they would any branch of law, as noted in the Parliament of Canada Act:

The privileges, immunities and powers held, enjoyed and exercised in accordance with section 4 are part of the general and public law of Canada and it is not necessary to plead them but they shall, in all courts in Canada, and by and before all judges, be taken notice of judicially. [246] 

A unique characteristic of privilege is that, although it may not appear to be the case, the rights and immunities claimed by elected representatives are controlled in large part by the courts. Though Parliament lays claim to sole control of its privileges, such claims have gone largely unchallenged because both courts and Parliaments are reluctant to deal definitively with such matters. However, in cases where privileges of Parliament have been challenged, the courts have on occasion more narrowly defined the privileges while on other occasions have supported the rights of Parliament. Thus, to some extent, the courts may determine or defend what are the privileges of Parliament. [247] 

A part of the justification for the privileges of the United Kingdom’s Parliament has rested upon the analogy with judicial practice. [248]  A court has privileges auxiliary to the due execution of its powers. Just as witnesses and judges must speak freely, be protected from molestation and be released from other conflicting tasks and obligations, so it might be thought necessary to make similar provisions for “the Court of Parliament, the first and the highest court in the kingdom”. [249] 

The extensive power to punish contempts has a judicial flavour and origin in the United Kingdom, yet in reality the English Parliament in the twentieth century is not a court. [250]  It has been British practice that where the House commits an individual to prison for contempt without stating the grounds, or commits generally, it appears that the courts will not inquire into the nature of the contempt. [251]  However, where facts are stated in the warrant, the courts would be free to inquire into the grounds and, in suitable cases, declare the committals to be defective as arbitrary or unrelated to any known privilege of the House. [252] 

Codification: The Australian Case

In order to alleviate some of the uncertainty traditionally inherent in the exercise of their privileges, some Parliaments based on the Westminster model have opted to codify their privileges. [253]  In 1987, the Australian Parliament passed legislation declaring, clarifying and substantially changing its law of parliamentary privilege. [254]  Partly in consequence of the legislation, the Australian Senate passed a series of resolutions substantially codifying its practices in matters related to privilege. [255] 

The Australian Parliament, finding that the courts were severely restricting its freedom of speech, enacted statutory remedies to protect its proceedings. The Australian Parliamentary Privileges Act 1987 provides definitions for a number of concepts including contempt. By restricting the category of actions which may be treated as contempts, the Act could be seen as either limiting the right of action of either Australian House or of opening up the actions of both Houses to judicial interpretation. For example, a person punished for a contempt of Parliament could bring an action to attempt to establish that the conduct for which he or she was punished did not fall within the statutory definition. This could lead to a court overturning a punishment imposed by a House for contempt of Parliament. [256] 

A number of concerns have been expressed in relation to the Australian statutory definition of privilege: the right of a House to expel a Member or the protection of witnesses before committees might be challenged in court; [257]  the statute might unduly restrict the rights of litigants and defendants in using evidence given before parliamentary committees for the purposes of their court proceedings; the resulting statutory interpretation would further restrict the powers and immunities of Parliament; affirming privileges in statute would result in challenges to the right of the public and the media to comment on what happens in Parliament; [258]  and should serious problems arise, they may be corrected only by further codification of the law through legislative amendment. [259]  As the function of the courts is to consider and apply statutes, not to investigate the proceedings leading to the passage of laws, it has been seen that both the courts and Parliament have expressed the need to avoid conflict in interpreting the scope of privilege. [260] 

Codification: The United Kingdom Experience

Where Australia has opted to legislate codification of privilege, the United Kingdom has not, though it continues to review its practice and has altered its way of dealing with matters of privilege. The whole scope and application of privilege was reviewed by the Select Committee on Parliamentary Privilege in 1967-68; re-examined again in the Third Report of the same Committee in 1976-77; and revisited by the Joint Committee on Parliamentary Privilege in 1998-99. Prior to the 1967-68 Committee’s appointment, some concern had been expressed about the number of occasions when criticisms had been raised in the House of breaches of privilege or contempt regarding relatively trivial matters. [261] 

Having examined all aspects of privilege in the House, the 1967-68 Committee came down against any major changes in the law of privilege, especially the suggestion that jurisdiction in privilege cases should be transferred to the courts through statute. [262]  The Committee did recommend that legislation be promoted to extend and clarify the scope of privilege. [263]  It also recommended a number of significant reforms in the way privilege complaints should be considered. [264]  It modified the procedure for their examination and, to a certain extent, codified procedures for dealing with matters of privilege. [265]  Other reforms served to bring the House’s formal rules into line with the practice of nearly 200 years. [266]  The 1976-77 Committee re-examined the findings of the earlier committee and recommended the adoption of many of its recommendations. [267] 

In his memorandum to the British Select Committee in 1976-77, the Clerk of the House cautioned against too rigidly codifying the House’s options in dealing with matters of privilege. He wrote:

It would be a mistake first and foremost because it would introduce an element of inflexibility into the manner in which the House upholds its privileges and punishes contempts. It is true that the House would be in no danger of abridging its privileges or powers by a mere resolution setting out the sort of cases upon which it normally proposed to act. But formulas which may appear precise and faultless at the time at which they are drafted, may be found to be defective at a later stage owing to some undiscovered loophole or developments which could not be envisaged at an earlier stage. It would certainly seem undesirable to have to ask the House to amend its resolutions on privileges with any frequency. [268] 

Following the 1976-77 Report, the focus of the House in such matters appeared to shift to the conduct of Members. Allegations of misconduct by Members of the British House were dealt with as matters of conduct or standards and not as privilege. The development of the Register of Members’ Interests institutionalized this approach, and this continued into the 1990s with the first report of the Committee of Privileges in 1994-95 and the Nolan Committee on Standards in Public Life which led to the establishment of the Select Committee on Standards in Public Life. This Committee made a number of recommendations pertaining to Members’ conduct which resulted in the adoption of a Code of Conduct for Members, the remodelling of the Committee of Privileges as the Committee on Standards and Privileges, and the appointment of a Parliamentary Commissioner for Standards. [269] 

In the 1997-98 session, the British Parliament created a Joint Committee on Parliamentary Privilege with the broad mandate to review parliamentary privilege and make recommendations. Reappointed with the same terms of reference and membership in the 1998-99 session, the Committee presented its report to both Houses on March 30, 1999, and made a number of recommendations calling for the codification of various matters of privilege in statutory law. [270]  The Committee recommended that “place out of Parliament” and “proceedings in Parliament” be defined in statute and that Members of both Houses be included within the scope of forthcoming legislation on corruption. It called for the codification in statute of contempt of Parliament, for the abolition of Parliament’s power to imprison for contempt and for the transfer of Parliament’s penal powers over non-Members to the courts. It recommended the termination of Members’ exemption from attendance in court as witnesses and the abolition of Members’ freedom from arrest in civil cases. It also recommended the replacement of the Parliamentary Papers Act 1840 by a modern statute and suggested that a Parliamentary Privileges Act be passed bringing together all the changes in the law it recommended and codifying parliamentary privilege as a whole.

Privilege and the Constitution [271] 

Section 18 of the Constitution Act, 1867 provides that Parliament may not confer on itself any greater privileges than those enjoyed at the time by the House of Commons of the United Kingdom. “Clearly the courts could not review the manner in which Parliament exercised its privileges, for example, in punishing a person for contempt of Parliament. But it has long been held that the courts can ascertain whether the privilege asserted by Parliament is one recognized by the law. Therefore, the courts could in a proper case test any statute pursuant to Section 18 [of the Constitution Act, 1867] to determine whether the privilege it created was one which the Canadian Parliament was entitled to claim for itself. Such an issue might be raised by means of a reference or by proceedings such as habeas corpus, or by damage actions on behalf of individuals who had suffered at the hand of Parliament in the exercise of its alleged privileges.” [272] 

The adoption of the Canadian Charter of Rights and Freedoms in 1982, “ushered in a flood of constitutional litigation, gave Canadian courts a greater degree of superintendence over government, and dramatically changed the form and forum of politics. It was thus inevitable that the Canadian legislative assemblies and Houses of Parliament would become implicated in the Charter.” [273] 

As part of the general and public law of Canada, [274]  parliamentary privilege, like any law, is now subject to the provisions of the Charter[275]  In 1993, the Supreme Court of Canada in New Brunswick Broadcasting Co v. Nova Scotia (Speaker of the House of Assembly) addressed the issue of whether and how the Charter applies to the provincial legislative assemblies and their proceedings, which had a direct impact on the powers, privileges and immunities of the House of Commons. [276]  Maingot summarizes the decision as follows:

The majority held that the act of the House of assembly in excluding television cameras from the public galleries was an exercise of a constitutionally inherent privilege to exclude strangers from the House and its precinct. The basis of this inherent privilege is the preamble to the Constitution Act, 1867 in context of historical tradition and the pragmatic principle of necessity: the legislature must be presumed to possess such constitutional powers as are necessary for its proper functioning.
The majority affirmed the existence of two categories of privilege: (1) constitutionally inherent privilege; (2) privilege that is not constitutionally inherent. Both the Charter and the first category of privilege are part of the Constitution. The first category of privilege is therefore not subject to judicial review under the Charter, because one part of the Constitution may not abrogate another part of the Constitution. Therefore, once it is established that the privilege is constitutionally inherent, as in this case, the exercise of that privilege is not subject to judicial scrutiny. If, however, it is not so established, the privilege is subject to such scrutiny. [277] 

The situation is far from clear as to when the courts can and should review questions, which have primarily been assigned by the Constitution or the law for decision by other instruments of government. “It is, of course, clear that actions of both the executive and the legislative branches can be reviewed on jurisdictional grounds. It is also clear that administrative law permits review of executive decisions on a wide range of procedural grounds, but that substantive decisions may not be reviewed where the matter is one clearly left in the discretion of the executive to decide. It is more dbatable to what extent Parliament’s internal processes, and the exercise of its historic privileges with respect to determining its own composition and the conduct of its members, can be reviewed.” [278] 

Members’ Privileges and the Criminal Law

Privilege and the Criminal Code

The special privileges of Members never were intended to set them above the law; rather, the intention was to give them certain exemptions from the law in order that they might properly execute the responsibilities of their position. Members of Parliament are subject to the criminal law except in respect of words spoken or acts done in the context of a parliamentary proceeding. However, it would be difficult to envisage a criminal act which would fit into or be a part of a parliamentary proceeding. [279]  Therefore, it goes without saying that if Members are charged with infractions of the criminal law, they must abide by the due process of law. To do otherwise would show contempt for the Canadian system of justice. [280] 

In determining whether there is a prima facie breach of privilege, the Speaker must differentiate between actions which directly affect Members in the performance of their duties, and actions which affect Members but do not directly relate to the performance of their functions. For example, if a Member is summoned to court for a traffic violation or if the income tax return of a Member is under investigation, one might say at first glance that the Member may be hampered in the performance of his or her duties — for the Member may have to defend himself or herself in court instead of attending to House or committee duties. However, in these cases, the action brought against a Member is not initiated as a result of his or her responsibilities as an elected representative, but rather as a result of actions taken by the Member as a private individual. In these situations, the protection afforded by parliamentary privilege does not and should not apply. [281] 

Freedom from arrest has been confined to civil cases and does not entitle a Member to evade criminal law. This is in accordance with the principle laid down by the British House of Commons in a conference with the House of Lords in 1641 where it was stated: “Privilege of Parliament is granted in regard of the service of the Commonwealth and is not to be used to the danger of the Commonwealth.” [282] 

Any incident of a criminal nature in which a Member has been charged is not a matter where immunity from arrest will protect that Member. [283]  Matters of a criminal nature would include treason, felonies, all indictable offences, forcible entries, kidnapping, printing and publishing seditious libel, and criminal contempt of court (though not civil contempt). [284] Members cannot claim freedom from arrest or imprisonment on a criminal charge. A Member of the House of Commons is in exactly the same position as any other citizen if he or she is suspected of, charged with, or found guilty of a crime, provided that it is unrelated to proceedings in Parliament. [285] 

In Canada, the 1965 case of Gilles Gregoire (Lapointe) would suggest that a Member could be arrested within the precinct of Parliament with the permission of the House and that the grounds surrounding the Parliament buildings do not constitute a part of the precinct of Parliament. [286] 

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. [287]  It is not the precinct of Parliament but the function that the precinct serves which is sacred. [288]  The only special procedure relating to the arrest or the imprisonment of a Member of Parliament is that if he or she is detained for any significant time (for example, if remanded in custody), the police or court concerned must notify the Speaker. Similarly, if a Member is sent to prison after a conviction, the House is informed. [289]  Thus, should the police arrest a Member outside the House on some criminal matter, the House of Commons is not entitled to intervene. In Canada, the administration of justice is a provincial responsibility. The Crown Attorney for the particular judicial district where the offence occurred would therefore prosecute any breach of the Criminal Code[290]  In its 1967 report, the British House of Commons Select Committee on Parliamentary Privilege noted that it could see no reason why, unless the circumstances are exceptional, a Member should be able to claim immunity from the normal process of the courts. [291] 

The Execution of Search Warrants in the Precinct of Parliament

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”. [292]  It is well established that, by extension, the House has complete and sole authority to regulate and administer its precinct, without outside interference.

As custodian of the rights and privileges of the House of Commons and head of its administrative structure, the Speaker oversees the management of the precinct of the House. The Standing Orders delegate to the Sergeant-at-Arms some duties and responsibilities in this regard, including the maintenance of order in the galleries, corridors, lobbies and other areas of the House, and the arrest and custody of any person who misconducts himself or herself while in the precinct of the House. [293] 

The right of the House to control its precinct extends to considerations of security and policing. The House of Commons maintains its own protective service, the House of Commons Security Service, under the direction of the Sergeant-at-Arms. Beyond the precinct, the RCMP is responsible for security on the grounds of Parliament Hill, [294]  as well as for the security of the Prime Minister and any visiting dignitary up to the entrance of the Parliament Buildings. Inside the buildings, it then becomes the responsibility of the House of Commons Security Service.

Authorization of the Speaker

Cases have arisen where representatives of outside police forces have wanted to enter the precinct of Parliament for purposes of making an arrest, conducting an interrogation or executing a search warrant. 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.

This authority was established in two separate incidents which occurred in the 1970s. The first case occurred in 1973 and involved Flora MacDonald (Kingston and the Islands). At that time, her parliamentary office was visited by the Ottawa City Police and the RCMP, who were inquiring about documents missing from the Department of Indian Affairs, without having 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 committee for study. 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.” [295]  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… .” [296]  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.

The second case occurred in 1979 and involved Terry Sergeant (Selkirk–Interlake). The Member raised a question of privilege regarding a 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 permission from the Speaker to search Mr. Sergeant’s office, Speaker Jerome found that there was no prima facie breach of privilege and indicated to the House that he had exercised his discretion against 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.” [297] 

In such cases, the Speaker is always in a difficult position: the Speaker must ensure that Members’ parliamentary privileges are protected without leaving the Speaker open to accusations of obstructing justice. However, as Speaker Jerome explained in 1979, if no charge has been laid or there is no evidence of an investigation against a Member, the Chair may exercise its discretion against the execution of a warrant. If there is an allegation of an offence by a Member, and the enforcement of the charge necessitates a warrant, the Speaker may give permission for its execution. [298] 

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.

Investigation of Matters Involving Members’ Budgets and Services

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”. [299] 

On May 29, 1990, the House unanimously approved the Special Committee’s Third Report. [300]  This Report dealt exclusively with procedures surrounding the execution of search warrants within the parliamentary precinct. By unanimously adopting the report, the House reaffirmed the following principles respecting the execution of search warrants:

  1. Well-established parliamentary tradition provides that search warrants may only be executed within the precinct of Parliament with the consent of the Speaker.
  2. 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.
  3. 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. [301] 

On June 1, 1990, the Committee presented its Fourth Report, which the House concurred in on the same day. [302]  The report contained proposed amendments to the Parliament of Canada Act, primarily dealing with the Board of Internal Economy. It also proposed to prohibit any criminal process respecting the way Members used House of Commons money, goods or services unless the authorities had previously requested and obtained from the Board a ruling or opinion on the propriety of the Member’s action. [303]  In particular, the Special Committee wanted to ensure that Members would not be exposed to charges or proceedings based on a misunderstanding of the nature of their work or the structure and rules of the House of Commons.

On June 26, 1990, Bill C-79, An Act to amend the Parliament of Canada Act, was introduced, [304]  which closely followed the draft provisions of the Fourth Report. Bill C-79 was designed to give the Board of Internal Economy exclusive authority to determine whether any past, present or proposed use of funds, goods, services or premises available to Members had been, was or would be improper. The Bill received Royal Assent on April 11, 1991. [305] 

The Parliament of Canada Act empowers the Board to make by-laws governing the use by Members of funds, goods, services and premises made available to them to carry out their parliamentary functions. [306]  The Board determines the terms and conditions of managing and accounting for such funds by the Members and has exclusive authority to determine whether such use is or was proper. [307]  Members may request from the Board an opinion with respect to such use. [308] 

In investigating the use by a Member of these funds, goods, services or premises, a law enforcement authority may request the Board’s opinion whether such use is or was proper. [309]  The Board can respond by interpreting an existing by-law or regulation, or if none exists by examining the issue. Similarly, the Board may provide the peace officer with an opinion on its own initiative. [310]  The Board has explicit authority to include in its opinions any comments that it considers relevant. [311]  A peace officer who receives an opinion and then makes an application for a criminal process is under an obligation to place the opinion before a provincial court judge. [312]  The Board can also publish its opinions, in whole or in part, for the guidance of the Members, although the Board must ensure that privacy is maintained. [313] 

Execution of a Search Warrant Once Obtained

The criminal law of Canada provides for the execution of search warrants within the terms of the Criminal Code. However, both parliamentary privilege and the criminal law are part of the general and public law of Canada. The Speaker, therefore, 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 that the corporate privilege of the House to administer its affairs within the precinct, as well as the privileges of individual Members to participate freely in the proceedings, are not infringed. At the same time, the Speaker must be careful not to obstruct the administration of criminal 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 would in the end 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. It has been established in law that the police must produce a search warrant upon request so that an occupier of property may satisfy himself that the search is lawful. [314]  Indeed, Section 29(1) of the Criminal Code provides that: “It is the duty of every one who executes a process or warrant to have it with him, where it is feasible to do so, and to produce it when requested to do so.”

An obvious 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 entering a particular Member’s office within the parliamentary precinct which is to be searched, in order for the Speaker to be satisfied that the search is lawful.

It is essential to understand that 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. [315]  Essentially, the Speaker’s role in reviewing a search warrant is restricted to an examination based on form and content.

Ultimately, a Member of the House of Commons is not “above the law”. The Member is, however, entitled to the full protection of the law, including the application of both corporate and individual parliamentary privilege and is subject to the criminal law and the protection it provides. Parliamentary privilege is not the privilege of an élite group but rather a necessary component of what is required for the Canadian electorate’s representatives to conduct public business on behalf of all Canadians free from interference and intimidation.

Procedure for Dealing with Matters of Privilege

The House of Commons is certainly the most important secular body in Canada. It is said that each House of Parliament is a “court” with respect to its own privileges and dignity and the privileges of its Members. The purpose of raising matters of “privilege” in either House of Parliament is to maintain the respect and credibility due to and required of each House in respect of these privileges, to uphold its powers, and to enforce the enjoyment of the privileges of its Members. A genuine question of privilege is therefore a serious matter not to be reckoned with lightly and accordingly ought to be rare, and thus rarely raised in the House of Commons. [316] 

Any claim that privilege has been infringed or a contempt committed is raised in the House by means of a “question of privilege”. The procedure with respect to raising a question of privilege is governed by both the Standing Orders and practice. A question of privilege is a matter for the House to determine. The decision of the House on a question of privilege, like every other matter which the House has to decide, can be elicited only by a question put from the Chair by the Speaker and resolved either in the affirmative or in the negative, and this question is necessarily founded on a motion made by a Member.

This section will describe the manner in which such matters are dealt with by the House. [317]  (See Figure 3.1 at the end of this chapter depicting the path of a question of privilege from the time it is raised until it is disposed of.)

Manner of Raising Matters of Privilege

Great importance is attached to matters involving privilege. A Member wishing to raise a question of privilege in the House must first convince the Speaker that his or her concern is prima facie (on the first impression or at first glance) a question of privilege. The function of the Speaker is limited to deciding whether the matter is of such a character as to entitle the Member who has raised the question to move a motion which will have priority over Orders of the Day; that is, in the Speaker’s opinion, there is a prima facie question of privilege. If there is, the House must take the matter into immediate consideration. [318]  Ultimately, it is the House which decides whether a breach of privilege or a contempt has been committed.

Matters relating to privilege may also arise in standing, special, legislative and joint committees, and in a Committee of the Whole House. However, the procedures for dealing with such situations in committee differ from the general procedure followed in the House.

If a Member believes that a breach of privilege or a contempt has occurred, but does not feel that the matter should have priority in debate, the Member may follow an alternate route for bringing the matter before the House. He or she may place a written notice of a motion on the Notice Paper.

In the House

A complaint on a matter of privilege must satisfy two conditions before it can be accorded precedence over the Orders of the Day. First, the Speaker must be convinced that a prima facie case of breach of privilege has been made and, second, the matter must be raised at the earliest opportunity. If in the opinion of the Speaker these two conditions have been met, then the Speaker informs the House that, in his or her opinion, this matter is entitled to take precedence over the notices of motions and Orders of the Day standing on the Order Paper. The Speaker’s ruling does not extend to deciding whether a breach of privilege has in fact been committed — a question which can only be decided by the House itself.

Time of Raising and Notice Requirements

A question of privilege arising out of the proceedings during the course of a sitting may be raised immediately without notice. However, Speakers have disallowed questions of privilege during Statements by Members and Question Period, [319]  the process of Royal Assent, [320]  as well as during the Adjournment Proceedings, [321]  and divisions. [322]  In such circumstances, the question of privilege may be raised at the end of the time provided for such business on that day. [323]  A matter of privilege related to the Adjournment Proceedings would be raised at the next sitting, following the proper notification to the Speaker. [324] 

A Member wishing to raise a question of privilege which does not arise out of the proceedings during the course of a sitting must give notice before bringing the question to the attention of the House. The Member must provide a written statement to the Speaker at least one hour before raising the question of privilege in the House. If such notice is not given, the Speaker will not allow the Member to proceed. [325]  Speakers have also ruled that oral notice is neither necessary nor sufficient. [326]  Questions of privilege for which written notice has been given are raised at specific times, namely on the opening of the sitting, following Routine Proceedings but before Orders of the Day, immediately after Question Period, and, occasionally, during a debate.

The notice submitted to the Speaker should contain four elements:

  1. It should indicate that the Member is writing to give notice of his or her intention to raise a question of privilege.
  2. It should state that the matter is being raised at the earliest opportunity. [327] 
  3. It should indicate the substance of the matter that the Member proposes to raise by way of a question of privilege. [328] 
  4. It should include the text of the motion which the Member must be ready to propose to the House should the Speaker rule that the matter is a prima facie case of privilege.

By providing the Chair with a context for the question of privilege and a proposed remedy for the problem, the Member will assist the Speaker to deal with the issue in an informed and expeditious manner. The inclusion of the text of the proposed motion allows the Speaker the opportunity to suggest changes to avoid any procedural difficulties in the wording; otherwise, the Member might be prevented or delayed from moving the motion should the Speaker rule the matter a prima facie question of privilege. [329] 

Raising at the First Opportunity

The matter of privilege to be raised in the House must have recently arisen and must call for the immediate action of the House. Therefore, Members must satisfy the Speaker that the matter has been raised at the earliest opportunity. When a Member does not fulfil this important requirement, the Speaker has ruled that the matter is not a prima facie question of privilege. [330]  In instances where more than one Member is involved in a question of privilege, the Speaker may postpone discussion until all concerned Members can be present in the House. [331] 

Multiple Notices

Should the Speaker receive more than one notice of a question of privilege, or should more than one Member seek the floor on a specific question of privilege, the Speaker will determine the order in which the Members will be recognized. [332]  Generally, the Speaker will recognize Members in the order in which the notices were received, or recognize the first Member who catches the Speaker’s eye. If more than one matter is being raised, the Speaker will hear Members on one question of privilege at a time.

Initial Discussion of Matter Raised

A Member recognized on a question of privilege is expected to be brief and concise in explaining the event which has given rise to the question of privilege and the reasons why consideration of the event complained of should be given precedence over other House business. [333]  Generally, the Member tries to provide the Chair with relevant references to the Standing Orders, precedents and citations from procedural authorities. In addition, the Member demonstrates that the matter is being brought to the House’s attention at the first opportunity. Finally, the Member should state what corrective House action is being sought by way of remedy and indicate that, should the Speaker rule the matter a prima facie question of privilege, he or she is prepared to move the appropriate motion. [334] 

The Speaker will hear the Member and may permit others who are directly implicated in the matter to intervene. The Speaker also has the discretion to seek the advice of other Members to help him or her in determining whether there is prima facie a matter of privilege involved which would warrant giving the matter priority of consideration over all other House business. When satisfied, the Speaker will terminate the discussion. [335] 

The decision as to the existence of a prima facie question of privilege belongs exclusively to the Speaker who may take the matter under advisement to permit a considered judgement in all but the clearest of cases. When a question of privilege has required an immediate decision of the Chair, the Speaker has, without objection, suspended the sitting for a short time to deliberate on the matter, and has then returned to the House with a ruling. [336]  In deliberating upon the matter, the Chair will take into account the extent to which the matter complained of infringed upon any Member’s ability to perform his or her parliamentary duties or appears to be a contempt against the dignity of Parliament.

If the Speaker is satisfied that the necessary conditions have been met and finds a prima facie breach ofprivilege or contempt, the decision is announced to the House. As soon as the Chair has apprised the House that a prima facie case of privilege has been found, the Member raising the matter is immediately allowed to move a motion.

In the vast majority of cases, the Chair decides that a prima facie case of privilege was not made. In informing the House of such a decision, the Chair customarily explains (often in some detail) the factors which resulted in this finding. However, in such cases, the Chair will often acknowledge the existence of a genuine grievance and may recommend avenues of redress. [337]  If the Speaker rules that there is not a prima facie question of privilege, the matter ends there. However, if in the future additional information comes to light, the Member who raised the question of privilege or any other Member may raise the matter again. [338] 

Debate on a Privilege Motion

After the Speaker has decided that a matter is a prima facie question of privilege, it is left to the Member raising the matter to move the appropriate motion; [339]  like all motions, it must be seconded. Occasionally, the Member will propose a motion at the end of his or her arguments when initially raising the question of privilege. Under these circumstances, the Speaker may advise the Member on the proper form of the motion. [340]  In cases where the motion is not known in advance, the Speaker may provide assistance to the Member if the terms of the proposed motion are substantially different from the matter originally raised. [341]  The Speaker would be reluctant to allow a matter as important as a privilege motion to fail on the ground of improper form. [342]  In Canadian practice, the terms of the motion have generally provided that the matter be referred to committee for study or have been amended to that effect. [343] 

Once the motion is properly moved and proposed to the House, it is subject to all the procedures and practices relating to debate on a substantive motion. The speeches are limited to 20 minutes, followed by a 10-minute questions and comments period. [344]  Only the Prime Minister and the Leader of the Opposition are permitted unlimited debating time (with no period for questions or comments). Members are subject to the rules of relevance and repetition and the Speaker must ensure that the debate is focussed on the terms of the motion.

When the motion being considered touches on the conduct of a Member, he or she may make a statement in explanation and then should withdraw from the Chamber. [345]  The Chair has interpreted “conduct” to refer to actions which, if proven, could result in the expulsion of a Member from the House on the grounds that he or she is unfit for membership, as opposed to actions which could lead to a Member being “named” by the Speaker. [346]  However, it is not always clear that Members whose conduct was under consideration actually withdrew from the Chamber. [347]  In some circumstances, a Member may be allowed to return to the Chamber in order to clarify or explain particular matters.

A privilege motion once under debate has priority over all Orders of the Day including Government Orders and Private Members’ Business. However, the debate does not interfere with the regular holding of Routine Proceedings, Statements by Members, Question Period, Royal Assent and the adjournment of the House. [348] 

Once the privilege motion is before the House, it may be amended by the House, even if the amendment results in the text of the motion differing from the one originally accepted by the Speaker and proposed to the House. [349] 

During the proceedings on a privilege motion, motions to adjourn the debate, to adjourn the House, or to proceed to Orders of the Day are in order, [350]  as are motions for the previous question (“that this question be now put”), for the extension of the sitting, or “that a Member be now heard”. However, should the previous question be negatived, or a motion to proceed to Orders of the Day be adopted, then the privilege motion is superseded and dropped from the Order Paper. Closure may also be moved on the privilege motion by a Minister. [351] 

Should debate on a privilege motion not be completed by the time of adjournment, then on the next sitting day the item will take priority over all other Orders of the Day and will appear on the Order Paper before all other Orders of the Day. [352] 

When debate has concluded on the motion, the Speaker will put the question to the House. If the motion is adopted, then the terms of the motion will be implemented. If the motion is defeated, the proceedings are ended. [353] 

In Standing, Special, Legislative and Joint Committees

Since the House has not given its committees the power to punish any misconduct, breach of privilege, or contempt directly, committees cannot decide such matters; they can only report them to the House. Only the House can decide if an offence has been committed. [354]  Speakers have consistently ruled that, except in the most extreme situations, they will only hear questions of privilege arising from committee proceedings upon presentation of a report from the committee which directly deals with the matter and not as a question of privilege raised by an individual Member. [355]  Most matters which have been reported by committees concerned the behaviour of Members, witnesses or the public. Committees have reported to the House on the refusal of witnesses to appear when summoned; [356]  the refusal of witnesses to answer questions; [357]  the refusal of witnesses to provide papers or records; [358]  the refusal of individuals to obey orders of a committee; [359]  and the divulging of events during an in camera meeting. [360]  Committees could report on instances of contempt, such as behaviour showing disrespect for the authority or activities of a committee, the intimidation of members or witnesses, or witnesses refusing to be sworn or lying to the committee.

Unlike the Speaker, the Chair of a committee does not have the power to censure disorder or decide questions of privilege. Should a Member wish to raise a question of privilege in committee, or should some event occur in committee which appears to be a breach of privilege or contempt, the Chair of the committee will recognize the Member and hear the question of privilege, or in the case of some incident, suggest that the committee deal with the matter. The Chair, however, has no authority to rule that a breach of privilege or contempt has occurred. [361]  The role of the Chair in such instances is to determine whether the matter raised does in fact touch on privilege and is not a point of order, a grievance or a matter of debate. If the Chair is of the opinion that the Member’s interjection deals with a point of order, a grievance or a matter of debate, or that the incident is within the powers of the committee to deal with, then the Chair will rule accordingly, giving reasons. The committee cannot then consider the matter further as a question of privilege. Should a Member disagree with the Chair’s decision, then the Member can appeal to the committee, which can sustain or overturn the Chair’s decision.

If in the opinion of the Chair the issue raised relates to privilege (or if an appeal should overturn a Chair’s decision that it does not touch on privilege), then the committee can proceed to the consideration of a report on the matter to the House. [362]  The Chair will then entertain a motion which will form the text of the report. It should clearly describe the situation, summarize the events, name any individuals involved, indicate that privilege may be involved or that a contempt may have occurred, and request the House to take some action. [363]  The motion is debatable and amendable, and will have priority of consideration in the committee. If the committee decides that the matter should be reported to the House, it will adopt the report which will be presented to the House at the appropriate time during the Daily Routine of Business.

Once the report has been presented, the House is formally seized of the matter. [364]  After having given the appropriate notice, [365]  any Member may then raise the matter as a question of privilege. The Speaker will hear the question of privilege and may hear other Members on the matter, before ruling on the prima facie nature of the question of privilege. As Speaker Fraser noted in a ruling, “ … the Chair is not judging the issue. Only the House itself can do that. The Chair simply decides on the basis of the evidence presented whether the matter is one which should take priority over other business.” [366]  Should the Speaker rule the matter a prima facie question of privilege, the next step would be for the Member who raised the question of privilege to propose a motion asking the House to take some action. [367] Should the Speaker rule that there is no prima facie question of privilege, no priority would be given to the matter. As with any committee report, any Member may still seek concurrence in the report by following the normal procedures during the Daily Routine of Business. [368]

In a Committee of the Whole

Given that the House infrequently sits as a Committee of the Whole, and that when it does, the proceedings are typically completed in a matter of minutes, questions of privilege are not often raised today in a Committee of the Whole. [369] The practice regarding the raising of questions of privilege in a Committee of the Whole is virtually identical to that for standing, special, or legislative committees.

When the House sits as a Committee of the Whole, a Member may raise a question of privilege only on matters which have occurred in the Committee. The question of privilege must be relevant to the proceedings in the Committee. A Member may not raise as a question of privilege matters affecting the privileges of the House in general or something which has occurred outside the Chamber. In a Committee of the Whole, a Member wishing to raise a question of privilege about something that does not concern the Committee may move a motion that the Committee rise and report progress in order that the Speaker may hear the question of privilege. [370]  If the motion is adopted, the Chairman will rise and report to the Speaker who will then hear the Member. [371] 

If a Member rises on a question of privilege which is relevant to the proceedings in a Committee of the Whole, the Chairman will hear the question of privilege. As in a standing, special, or legislative committee, the role of the Chairman is to decide whether the matter raised does in fact relate to privilege. [372]  Again, that decision may be appealed. However, such an appeal is not to the Committee of the Whole, but rather to the Speaker. [373]  If the matter raised by the Member touches on privilege and relates to events in the Committee of the Whole, the Chairman will entertain a motion that the events be reported to the House. The motion is debatable and amendable, and has priority of consideration in the Committee. If the Committee agrees to report the matter, the Chairman then rises, the Speaker resumes the Chair and the Chairman reports. [374]  The text of the report to the House should summarize the events, indicate that privilege may be involved, and include a request for the Committee to sit again to consider its business. [375] 

Only after the Chairman has reported to the House, may the matter be properly brought before the House and the Speaker deal with it. A Member should rise on a question of privilege and put the matter before the Speaker, who may allow interventions on the matter. When satisfied, the Speaker will rule whether or not it is a prima facie question of privilege. If a prima facie case of privilege is found, the Member may move a motion dealing with the matter. [376] If the Speaker finds that there is no prima facie question of privilege, then the House will resume its regular business. Under “Orders of the Day”, the House may sit again as a Committee of the Whole to resume consideration of the matter originally before it, or the House may proceed to another Order of the Day.

The Speaker will entertain a question of privilege in regard to a matter that occurred in a Committee of the Whole only if the matter has been dealt with first in the Committee of the Whole and reported accordingly to the House. [377] 

By Way of Written Notice on the Notice Paper

If a Member believes that a breach of privilege or a contempt has occurred, but does not feel that the matter should have priority in debate, in a procedure very rarely resorted to, the Member may place a written notice of motion on the Notice Paper. In this instance, at the conclusion of the required notice period, the motion is placed under the appropriate heading on the Order Paper. When sponsored by a Minister, the motion requires a 48 hours’ notice period and will be considered by the House when called under Government Orders. [378]  When sponsored by a private Member, the motion requires a notice period of two weeks and will be placed under Private Members’ Business. [379] 

However, following the appropriate notice period, the Member in whose name the item stands may decide to seek priority in debate for the motion (e.g., if new information were to come to light). The Member must then seek to convince the Speaker that the matter raised in the motion should be considered a prima facie question of privilege. In such a case, the Member would be required to notify the Speaker at least one hour before raising the matter in the House. [380] 

Historically, there have been a number of occasions when Members have chosen to give written notice of their motions of privilege, particularly in cases where the matter stemmed from events occurring outside the House. In 1874, for instance, a motion for which written notice had been given, and which was not likely to arise on a particular day, was taken up before its turn, displacing scheduled business. [381]  A similar case in 1886 saw a motion taken up before its turn at the request of the Member attacked in the motion. [382]  Yet, it was not always so easy and, in two rare cases in 1892, motions for which written notice had been given were refused precedence as the Speaker judged them not to contain true matters of privilege. [383]  Furthermore, in cases involving a motion amounting to a charge against a Member, etiquette required that the sponsor of such a motion privately advise the Member concerned when the motion would be moved. [384] 

These practices endured into the twentieth century, and oral and written notices, although not required, were both common when questions of privilege were raised. In 1911, for example, a matter of privilege was raised following oral notice, [385]  while in 1932, a motion regarding charges which had been made against the Prime Minister was taken up after written notice had been given. [386]  There were other cases where matters were raised without any notice. [387] 

Eventually, an attempt was made to convince the Speaker to take a notice of motion out of sequence because it appeared to involve privilege. In June 1959, the Leader of the Opposition gave notice of a motion in which he questioned the conduct of a Member on the government side. The Speaker, who had not ruled on whether or not it should be given precedence, sought the advice of the House. [388]  After a lengthy discussion on this point, the Speaker was able to arrive at the conclusion, in keeping with the recently established criteria guiding Speakers on questions of privilege, that, prima facie, no matter of privilege appeared to exist and that therefore he would not allow other business to be set aside to debate the motion. [389]  As a result, the motion stayed on the Order Paper and was never reached.

A written notice of motion, dealing with an alleged contempt of the House, was placed on the Notice Paper on February 27, 1996. The text of the motion, sponsored by Don Boudria (Glengarry–Prescott–Russell), accused Ray Speaker (Lethbridge) of attempting to put pressure on the Speaker to recognize the Reform Party as the Official Opposition. The motion further declared that this constituted a contempt of Parliament and ordered that the Member for Lethbridge be admonished at the Bar of the House by the Chair. The motion had been placed on the Order Paper under Private Members’ Business [390]  and had subsequently been chosen for debate after a random draw on March 4, 1996. The Standing Committee on Procedure and House Affairs had not, however, selected the motion to come to a vote.

On May 9, 1996, the day before the motion would, in accordance with the order of precedence for Private Members’ Business, be called for debate, Mr. Speaker (Lethbridge) raised a point of order in the House to question whether a motion which was not votable could be used to make a charge against another Member. The Acting Speaker informed the House that the motion would not be called the next day because Mr. Boudria could not be present, and that in the meantime the Chair would consider the point of order. [391] 

On June 18, 1996, Speaker Parent ruled that the motion was procedurally acceptable under the rules for Private Members’ Business. He stated, “The hon. Member is quite correct in his assertion that the conduct of a member can be brought before the House only by way of a specific charge contained in a substantive motion. Often, in such cases, members will choose to raise the matter on the floor of the House without giving the required 48-hour or two-week notice and ask the Speaker to give it priority or right of way for immediate consideration by the House, thus putting all other regular House business aside… . In the current circumstances, I find that the rules for Private Members’ Business have been followed and that there is therefore no point of order.” [392]  The Chair also noted that it did not have the authority to make the motion votable. He further pointed out that there were “procedures at the disposal of the House to ensure that a sense of fair play prevails in all its proceedings”. [393]  The Member for Lethbridge immediately raised a question of privilege which would provide a way of resolving the charge made against him by permitting the matter to come to a vote. He argued that allowing the charge to remain unresolved would seriously affect his reputation. After hearing from other Members, the Speaker reserved his decision. [394] 

When he returned to the question on June 20, 1996, the Speaker reminded the House that motions regarding the conduct of Members had in the past been placed on the Order Paper under Private Members’ Business without ever being voted on by the House. Although he could not find there was a prima facie question of privilege, the Speaker suggested that the Member consider pursuing the matter of the non-votable motion with the Standing Committee on Procedure and House Affairs. [395] 

On October 23, 1996, the Speaker announced to the House that Mr. Boudria had advised the Chair in writing that he could no longer move private Members’ motions because of his recent appointment to Cabinet. The Speaker, who has the duty under the Standing Orders of making arrangements for the orderly conduct of Private Members’ Business, thus directed that Mr. Boudria’s motion be removed from the Order Paper[396] 

Committee Consideration of Privilege Matter

If the terms of the privilege motion stipulate that the matter be referred to the Standing Committee on Procedure and House Affairs, then the adoption of the motion by the House constitutes an order of reference to the Committee. The Standing Orders empower the Committee to enquire into all such matters referred to it and to send for persons, papers and records. While the Committee is free to determine its own agenda, both the Committee and the House take such enquiries very seriously. The Committee does not have the power to punish. This power rests with the House. The Committee may only study the matter and report to the House. The conduct of the Committee in investigating a privilege matter is the same as for other business considered by any committee of the House, though the nature of the order of reference would encourage the Committee to proceed cautiously. [397] 

Committee Report

The form of a report of the Standing Committee on Procedure and House Affairs on a matter of privilege is no different from a report of any other committee of the House on a substantive matter. It may or may not contain recommendations for action or punishment [398]  and, if the Committee so orders, it may also have appended to it dissenting or supplementary opinions or recommendations. [399]  Frequently, the report itself may be sufficient to put an end to the matter and no further action is required by the House. [400]  A report may, on the other hand, recommend that the Speaker take some action or that some administrative action be taken. [401]  Just as with most committee reports, following appropriate notice, a Member may move for concurrence which the House may debate. [402] 

A Matter of “Personal Privilege”

The Chair may occasionally grant leave to a Member to explain a matter of a personal nature although there is no question before the House. [403] This is commonly referred to by Members as “a point of personal privilege” and is an indulgence granted by the Chair. There is no connection to a question of privilege, and as Speaker Fraser once noted, “There is no legal authority, procedural or otherwise, historic or precedential, that allows this.” [404]  Consequently, such occasions are not meant to be used for general debate, and Members have been cautioned to confine their remarks to the point they wish to make. [405]  The Speaker has also stated that, as these are generally personal statements and not questions of privilege, no other Members will be recognized to speak on the matter. [406]  Members have used this procedure to make personal explanations, [407]  to correct errors made in debate, [408]  to apologize to the House, [409]  to thank the House or acknowledge something done for the Member by the House, [410]  to announce a change in party affiliation, [411]  to announce a resignation, [412]  or for some other reason. [413] 

Figure 3.1 – The Path of a Question of Privilege
Image depicting, in a series of boxes linked by lines, the steps followed in the House of Commons when a Member raises a question of privilege. At the top of the page, the image shows the process beginning with the raising of the question of privilege, follows in a series of boxes down the page to the Speaker’s options for dealing with the question, and concludes further down the page with what may happen following the Speaker’s ruling.
[1] 
R.S.C. 1985, Appendix II, No. 5, s. 18.
[2] 
In fact, this was reflected in the wording of Standing Order 1, which until 1986 stated with minor variations over time: “In all cases not provided for hereafter or by sessional or other orders, the usages and customs of the House of Commons of the United Kingdom of Great Britain and Northern Ireland as in force at the time shall be followed so far as they may be applicable to this House.”
[3] 
Black’s Law Dictionary, 6th ed., 1990, p. 1197, defines privilege as, “A particular and peculiar benefit or advantage enjoyed by a person, company, or class, beyond the common advantages of other citizens. An exceptional or extraordinary power or exemption. A peculiar right, advantage, exemption, power, franchise, or immunity held by a person or class, not generally possessed by others.”
[4] 
Odgers, 8th ed., pp. 27-8.
[5] 
May, 22nd ed., edited by Sir Donald Limon and W.R. McKay, London: Butterworths, 1997.
[6] 
Maingot, 2nd ed., Ottawa: House of Commons and McGill-Queen’s University Press, 1997.
[7] 
May, 22nd ed., p. 65. For other definitions of privilege, see Maingot, 2nd ed., pp. 12-3.
[8] 
This point was forcefully made by Sir Barnett Cocks, Clerk of the House of Commons of the United Kingdom, in a memorandum to the Select Committee on Parliamentary Privilege. United Kingdom, House of Commons, Select Committee on Parliamentary Privilege, Minutes of Evidence, November 23, 1966, p. 1.
[9] 
United Kingdom, House of Commons, Select Committee on Parliamentary Privilege, Minutes of Evidence, November 23, 1966, p. 1.
[10] 
May, 20th ed., pp. 70-1.
[11] 
See Griffith and Ryle, pp. 85-6.
[12] 
With the possible exception of the relinquishment of its power to try controverted elections, the Canadian House of Commons has never formally renounced any of the basic rights and immunities it claims for itself and its Members. See Bourinot, 4th ed., pp. 122-7; Maingot, 2nd ed., pp. 187-90; Dominion Controverted Elections Act, 1874, S.C. 1874, c. 10. See also Chapter 4, “The House of Commons and Its Members”. In British practice, the authors of May note that since the eighteenth century a number of privileges have been surrendered or modified (May, 22nd ed., pp. 81-2).
[13] 
Maingot, 2nd ed., p. 20. An example of the extension of privilege was the adoption by the British Parliament of the Parliamentary Papers Act, 1840 and the enactment by the Canadian Parliament of virtually the same provisions in 1868. The British legislation followed the famous Stockdale v. Hansard case of 1837. The Act of 1840 provided that the publication of reports, papers, votes or proceedings of either House of Parliament by order was essential to the functions and duties of Parliament and thus privileged. The same provisions were adopted in Canada in 1868 as An Act to define the privileges, immunities and powers of the Senate and House of Commons, and to give summary protection to persons employed in the publication of Parliamentary Papers (S.C. 1868, c. 23). This Act is now sections 7, 8 and 9 of the Parliament of Canada Act (R.S.C., 1985, c. P-1) and corresponds exactly to sections 1, 2 and 3 of the Parliamentary Papers Act, 1840. For a full discussion of the case and its consequences, see Maingot, 2nd ed., pp. 63-75, and May, 22nd ed., pp. 86-8.
[14]
The advent of the broadcasting of the proceedings of the House illustrates such an application. In the Donahoe case referred to below, the Supreme Court affirmed that the Nova Scotia House of Assembly, in exercising its rights to control its internal proceedings and to exclude strangers from the House and its precinct, could exclude cameras from its galleries.
[15] 
Charles H. McIlwain, The High Court of Parliament and its Supremacy, New Haven: Yale University Press, 1910, reprinted 1962; and Carl Wittke, The History of English Parliamentary Privilege, Ohio State University, 1921.
[16] 
Constitution Act, 1867, R.S.C. 1985, Appendix II, No. 5, s. 18; Parliament of Canada Act, R.S.C. 1985, c. P-1, ss. 4-5.
[17] 
See F.W. Maitland, The Constitutional History of England, Cambridge: Cambridge University Press, 1908; and A.F. Pollard, The Evolution of Parliament, 2nd ed., London: Longmans Green, 1926.
[18] 
It has been argued that Sir Thomas More did not consider his petition a petition of right, as free speech was not yet a formal privilege. “Parliament is the king’s court; he may be displeased with what members say, and as discipline is his to maintain, he may punish the too bold or too rash for their speeches… More wants liberty of speech, whereas his predecessors wished to avoid punishment, thereby tacitly renouncing the liberty which More claims.” John Neale, “The Commons Privilege of Free Speech in Parliament”, Historical Studies of the English Parliament, Cambridge: Cambridge University Press, 1970, Vol. 2, pp. 157-8.
[19] 
This ceremony is also part of Canadian practice. When the newly elected Speaker is presented to the Governor General prior to the Speech from the Throne, the Speaker claims on behalf of the House “ … alltheir undoubted rights and privileges, especially that they may have freedom of speech in their debates, access to Your Excellency’s person at all reasonable times, and that their proceedings may receive from Your Excellency the most favourable construction”. See, for example, Senate Debates, September 23, 1997, p. 3. See also Chapter 8, “The Parliamentary Cycle”.
[20] 
May, 22nd ed., p. 70.
[21] 
Godfrey Davies, The Early Stuarts 1603-1660, Oxford: Clarendon Press, 1938, pp. 26-7.
[22] 
May, 22nd ed., pp. 70-1.
[23] 
May, 22nd ed., p. 72.
[24] 
Maitland, pp. 322-3; May, 22nd ed., p. 75.
[25] 
May, 22nd ed., p. 81.
[26] 
May, 22nd ed., p. 81.
[27] 
May, 22nd ed., pp. 160-2.
[28] 
May, 22nd ed., pp. 161-3. For the importance of this case in Canada, see Maingot, 2nd ed., pp. 63-74.
[29] 
May, 22nd ed., p. 162.
[30] 
The results of this case have been applied to Canada through the Parliament of Canada Act. The right of the courts to take notice of the privilege of Parliament is declared in section 5: “The privileges, immunities and powers held, enjoyed and exercised in accordance with section 4 are part of the general and public law of Canada and it is not necessary to plead them but they shall, in all courts in Canada, and by and before all judges, be taken notice of judicially” (Parliament of Canada Act, R.S.C. 1985, c. P-1, 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.
[31] 
See John Hatsell, Precedents of Proceedings in the House of Commons, 4 vols., London, 1776-96, reprinted 1971; S.A. Ferrall, An Exposition of the Law of Parliament, as It Relates to the Power and Privileges of the Commons’ House, London: Sweet, 1837; and Thomas Erskine May, A Treatise upon the Law, Privileges, Proceedings and Usage of Parliament, 1st ed., London: 1844, reprinted 1971, now in its 22nd edition.
[32] 
This edition concluded that any “act or omission which obstructs or impedes either House of Parliament in the performance of its functions, or which obstructs or impedes any member or officer of such House in the discharge of his duty, or which has a tendency, directly or indirectly, to produce such results may be treated as a contempt even though there is no precedent of the offence” (May, 14th ed., p. 108).
[33] 
United Kingdom, House of Commons, Select Committee on Parliamentary Privilege, 1967, Report, (reprinted 1971), p. vi, para. 9. The report laid down six major criticisms from the public of the way privilege was used. These were:
(i)
Members are too sensitive to criticism and invoke too readily the penal jurisdiction of the House; they do so not merely in respect of matters which are too trivial to be worthy of that jurisdiction, but also on occasions when other remedies (e.g., in the courts or by way of complaint to the Press Council) are available to them as citizens;
(ii)
the procedure for invoking the penal jurisdiction encourages its use of the purposes of publicity, is inequitable to persons whose conduct is under scrutiny and fails to accord with the ordinary principles of natural justice;
(iii)
the scope of Parliament’s penal jurisdiction is too wide, too uncertain and too dependent upon precedent; the Press and the public are wrongly inhibited from legitimate criticism of Parliamentary institutions and of Members’ conduct by fear that the penal jurisdiction may be invoked against them;
(iv)
there is too great uncertainty about the defences which may legitimately be raised by those who are subjected to the penal jurisdiction; in particular it is a matter of doubt whether a person who has made truthful criticisms should be allowed to testify to their truth; this should be an undoubted right;
(v)
it is contrary to principle that Parliament should be "both prosecutor and judge"; its penal powers should be transferred to some other tribunal;
(vi)
the rules which govern the reporting of debates in the House and Standing Committee are obsolete and disregarded; those which govern the reporting of proceedings in Select Committee are obsolete, anomalous, uncertain and contrary to the public interest. (Report, pp. vi-vii, para.10.)
[34] 
Report, p. vii, para. 12. It is interesting to note that the use of the term “privilege” remains an issue in the British Parliament. In the parliamentary session of 1997-98, a Joint Committee on Parliamentary Privilege was struck to review parliamentary privilege. One of the matters being investigated was whether or not there existed a more modern and better phrase to replace “parliamentary privilege”. See United Kingdom, House of Commons, Debates, July 30, 1997, col. 423.
[35] 
Report, pp. xiii-xiv, para. 38.
[36] 
Report, p. viii, para. 15.
[37] 
May, 14th ed., pp. 356-7. This practice has become the method by which the Canadian House of Commons treats claims to breaches of privilege following the incorporation of this procedure into the fourth edition of Beauchesne’s Parliamentary Rules and Forms in 1958 (pp. 94-6).
[38] 
United Kingdom, House of Commons, Select Committee of Privileges, 1977, Third Report, pp. vi-vii, para. 9. For details on the way privilege complaints are raised and dealt with in the British House, see May, 22nd ed., pp. 144-52, and Griffith and Ryle, pp. 95-8.
[39] 
Griffith and Ryle (pp. 98-104) surveys the results of the new procedure in its first 10 years in effect. See also May, 22nd ed., p. 82.
[40] 
See Griffith and Ryle, p. 98.
[41] 
See Griffith and Ryle, pp. 97-8.
[42] 
Maingot, 2nd ed., p. 3. See also p. 198.
[43] 
Maingot, 2nd ed., p. 3, and in particular note 8.
[44] 
Maingot, 2nd ed., p. 3.
[45] 
Maingot, 2nd ed., p. 198.
[46] 
O’Brien, p.109.
[47] 
O’Brien, p. 110.
[48] 
O’Brien, p. 111. See also Chapter 18, “Financial Procedures”.
[49] 
O’Brien, pp. 112-3.
[50] 
O’Brien, pp. 191-2.
[51] 
O’Brien, pp. 195-6.
[52] 
O’Brien, pp. 303-4, 377.
[53] 
O’Brien, p. 379.
[54] 
Maingot, 2nd ed., p. 3.
[55] 
Constitution Act, 1867, R.S.C. 1985, Appendix II, No. 5, s. 18. The original section was repealed and substituted by the Parliament of Canada Act, 1875, 38-39 Vict., c. 38 (U.K.) (R.S.C. 1985, Appendix II, No. 13):
The privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the Members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada, but so that any Act of the Parliament of Canada defining such privileges, immunities, and powers shall not confer any privileges, immunities, or powers exceeding those at the passing of such Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the Members thereof.
See also Bourinot, 1st ed., pp. 187-8.
[56] 
R.S.C. 1985, c. P-1. Sections 4 and 5 read as follows:
  1. The Senate and the House of Commons, respectively, and the members thereof hold, enjoy and exercise
    1. such and the like privileges, immunities and powers as, at the time of the passing of the Constitution Act, 1867, were held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom and by the members thereof, in so far as is consistent with that Act; and
    2. such privileges, immunities and powers as are defined by Act of the Parliament of Canada, not exceeding those, at the time of the passing of the Act, held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom and by the members thereof.
  2. The privileges, immunities and powers held, enjoyed and exercised in accordance with section 4 are part of the general and public law of Canada and it is not necessary to plead them but they shall, in all courts in Canada, and by and before all judges, be taken notice of judicially.
[57] 
For a good example, see Debates, February 28, 1884, pp. 542-66. In two rare cases, the Speaker decided the matters raised were not urgent enough to be accorded precedence as matters of privilege (Debates, March 21, 1892, cols. 287-9; April 6, 1892, cols. 1032-5).
[58] 
Beauchesne, 3rd ed., pp. 82-3.
[59] 
See, for example, Debates, May 18, 1883, pp. 1281-3. For examples of interference from the Speaker, see Debates, February 20, 1877, pp. 122-3; April 11, 1878, pp. 1867-72; April 24, 1883, pp. 785-6.
[60] 
See, for example, Debates, June 9, 1936, p. 3528; May 16, 1947, p. 3159; March 7, 1955, p. 1761.
[61] 
For examples of legitimate questions of privilege, see Journals, April 20, 1921, p. 199; May 22, 1924, p. 299; February 8, 1932, pp. 15-6; June 30, 1943, pp. 565-6; Debates, June 7, 1928, pp. 3868-74.
[62] 
Beauchesne, 4th ed., pp. 94-6; May, 14th ed., pp. 356-7.
[63]
For a list of questions of privilege ruled prima facie by the Speaker since 1958, see Appendix 14.
[64] 
See, for example, motion moved by Stanley Knowles (Winnipeg North Centre): Debates, April 27, 1964, pp. 2582-3; April 28, 1964, pp. 2645-7; Journals, April 28, 1964, p. 251; June 15, 1964, pp. 425-6; August 17, 1964, pp. 623-4; question raised by Erik Nielsen (Yukon): Debates, May 14, 1970, pp. 6949-51; Journals, May 14, 1970, p. 803; June 3, 1970, pp. 917-8; June 10, 1970, p. 977; motion moved by Jerry Pringle (Fraser Valley East): Debates, March 14, 1972, p. 795; Journals, March 14, 1972, p. 61; May 24, 1972, pp. 321-6; motion moved by Allan J. MacEachen (President of the Privy Council): Debates, December 22, 1976, pp. 2241-2; Journals, December 22, 1976, p. 270; and motion moved by Lloyd Axworthy (Minister of Employment and Immigration): Debates, April 22, 1980, pp. 285-8; Journals, April 22, 1980, p. 66; July 10, 1980, pp. 347-8.
[65] 
See, for example, Debates, May 15, 1964, pp. 3299-302.
[66] 
Journals, June 19, 1959, pp. 581-6.
[67] 
See, for example, Journals, March 11, 1966, pp. 279-81; October 7, 1970, pp. 1423-4; May 16, 1972, pp. 300-1.
[68] 
Debates, April 30, 1964, pp. 2799-802. See also Debates, May 17, 1973, p. 3903.
[69] 
The Second Report of the Standing Committee on Procedure and Organization was presented on March 14, 1975 (Journals, p. 373), and concurred in on March 24, 1975 (Journals, p. 399).
[70] 
Debates, April 12, 1962, p. 2909.
[71] 
See, for example, ruling of Speaker Lamoureux, Debates, October 29, 1970, p. 686.
[72] 
Maingot, 2nd ed., pp. 29-31.
[73] 
See ruling of Speaker Fraser, Debates, December 3, 1991, p. 5681; and ruling of Speaker Parent, Debates, September 30, 1994, p. 6371. See also Debates, April 1, 1998, p. 5653.
[74] 
Constitution Act, 1982, R.S.C. 1985, Appendix II, No. 44, Schedule B.
[75]
The case was known as New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly) (it is also referred to as Donahoe v. Canadian Broadcasting Corporation) and the Speakers of the House of Commons, the Senate and the provincial legislatures were interveners.
[76] 
See Maingot, 2nd ed., pp. 303-50, for an explanation of the relationship between the Canadian Charter of Rights and Freedoms and parliamentary privilege. See also Diane Davidson, “Parliamentary Privilege and Freedom of the Press: A Comment on Donahoe v. Canadian Broadcasting Corporation (1993)”, Canadian Parliamentary Review, Vol. 16, No. 2 (Summer 1993), pp. 10-12, for a summary of the Supreme Court Decision.
[77] 
Journals, July 12, 1976, pp. 1421-3.
[78] 
Journals, April 29, 1977, pp. 720-9.
[79]
For further information on the sub judice convention, see Chapter 13, “Rules of Order and Decorum”.
[80] 
This order of reference to the Committee arose out of discussions among the House Leaders following testimony given before the Standing Committee on Justice and the Solicitor General relating to police investigations of certain Members (Debates, December 14, 1989, pp. 6939-40). See also Standing Committee on Justice and the Solicitor General, Minutes of Proceedings and Evidence, December 12, 1989, Issue No. 21, pp. 5-12, 20-42.
[81] 
See Standing Committee on Elections, Privileges, Procedure and Private Members’ Business, Minutes of Proceedings and Evidence, January 30, 1990, Issue No. 20.
[82] 
Debates, December 14, 1989, pp. 6939-40; Journals, December 14, 1989, p. 1011.
[83] 
Special Committee on the Review of the Parliament of Canada Act, Second Report, Minutes of Proceedings and Evidence, Issue No. 7, p. 5. The Report was presented to the House on February 16, 1990 (Journals, p. 1233), and concurred in on March 7, 1990 (Journals, p. 1301).
[84] 
Second Report, p. 6.
[85] 
Second Report, p. 7.
[86] 
Special Committee on the Review of the Parliament of Canada Act, Third Report, presented to the House on May 29, 1990, and concurred in on the same day (Journals, pp. 1775-6).
[87] 
May, 22nd ed., p. 65.
[88] 
May, 22nd ed., pp. 65, 108.
[89] 
Odgers, 8th ed., p. 53.
[90] 
See Debates, October 29, 1980, p. 4214. Speakers Fraser and Parent also reiterated this explanation. See Debates, October 10, 1989, p. 4459; October 9, 1997, p. 687.
[91] 
M.N. Kaul and S.L. Shakdher, Practice and Procedure of Parliament, 4th ed., edited by Subhash C. Kashyap, New Delhi: Metropolitan Book Co., 1991 (Reprinted 1995), p. 225. For a listing of the main types of contempt established in the United Kingdom, see Griffith and Ryle, pp. 93-4. No such list exists for the Canadian House. Of the prima facie cases of contempt raised in the House since 1867, only one motion containing the word “contempt” has been adopted by the House. This occurred in 1873 when the House found an article printed in the Morning Freeman newspaper to be a “high contempt of the privileges and the Constitutional authority of this House” (see Journals, April 17-18, 1873, pp. 167-72). In the 1996 Jacob case, the wording of the motion moved by Jim Hart (Okanagan–Similkameen–Merritt) referred to the actions of Jean-Marc Jacob (Charlesbourg) as constituting a “contempt of Parliament”. However, the motion as adopted by the House had been amended to delete the reference to contempt (see Journals, March 12, 1996, p. 79; March 13, 1996, pp. 88-9; March 14, 1996, pp. 94-6; March 18, 1996, pp. 107-10). It has been the practice of the House in such instances to refer the matter to committee for investigation to determine if a contempt has been committed and therefore not prejudge the findings of the committee. Actual mention of the word “contempt” is usually found in the remarks made by Members during debate (see, for example, the remarks of Jesse Flis (Parkdale–High Park) in moving his motion summoning Ian Waddell (Port Moody–Coquitlam) to the Bar of the House (Debates, October 31, 1991, pp. 4271-2)); in the remarks by the Speaker in ruling on the prima facie nature of the issue (see Journals, October 24, 1966, pp. 911-3; December 6, 1978, pp. 221-3); in the report of the Committee on the matter (see Standing Committee on Elections, Privileges and Procedure, Seventh Report, Journals, December 18, 1987, p. 2016; Standing Committee on Privileges and Elections, Twenty-Fourth Report, Minutes of Proceedings and Evidence, March 7, 1991, Issue No. 39, p. 5); or in the wording of motions which the House adopted subsequent to a committee report (see Journals, September 29, 1891, p. 561).
[92] 
In 1973, for example, Flora MacDonald (Kingston and the Islands) and her staff were questioned in her West Block office by the Ottawa police and the RCMP respecting the disappearance of certain files from a government department. The matter was raised as a question of privilege and referred to committee for study. The committee reported that the question of privilege was well founded and asked the Speaker to remind outside police forces to follow established practice and obtain authorization from the Speaker before seeking access to a Member’s office. See Debates, September 4, 1973, pp. 6179-81; Journals, September 21, 1973, p. 567.
[93] 
In March 1996, for example, Jim Hart (Okanagan–Similkameen–Merritt) accused Jean-Marc Jacob (Charlesbourg) of sedition for a 1995 communiqué sent by him to members of the Armed Forces in Quebec concerning the October 30, 1995 referendum in that province. The Speaker ruled the matter prima facie, Mr. Hart moved a motion, which after debate was amended, and the House referred the matter to committee for study. See Debates, March 12, 1996, pp. 557-67; March 13, 1996, pp. 648-74; March 14, 1996, pp. 680-703, 716-47; March 18, 1996, pp. 854-9. On June 18, 1996, the Standing Committee on Procedure and House Affairs presented its Twenty-Ninth Report which found that although Mr. Jacob’s actions had been ill advised, there was no contempt of the House. On June 20, 1996, Chuck Strahl (Fraser Valley East) moved a motion of concurrence in the report. After debate, Don Boudria (Glengarry–Prescott–Russell) moved the adjournment of the debate. This was adopted, debate was adjourned and, pursuant to the Standing Orders, the concurrence motion was transferred to Government Orders. It was not debated again. See Journals, June 18, 1996, pp. 565-6; June 20, 1996, pp. 592-3.
[94] 
In 1975, for example, the Standing Committee on Privileges and Elections found the Montreal Gazette to have fallen short of accepted journalistic standards in a story claiming that a Member, John Reid (Kenora–Rainy River), had advance knowledge of the budget and that he had passed on that information to businessmen. See Debates, July 24, 1975, pp. 7886-9; July 25, 1975, pp. 7937-41, 7946-8; Journals, July 25, 1975, pp. 742-3; October 17, 1975, pp. 781-2. A similar finding was made in 1983 when the same newspaper suggested that Bryce Mackasey (Verdun) had acted as a paid lobbyist while still a Member of the House. See Debates, March 16, 1983, pp. 23834-5; March 17, 1983, pp. 23880-1; March 22, 1983, pp. 24027-30; Journals, March 22, 1983, p. 5736; November 23, 1983, p. 6588. In March 1998, Peter MacKay (Pictou–Antigonish–Guysborough) rose on a matter concerning an article in the March 8 edition of the Ottawa Sun newspaper which attributed to Members of the House statements which might bring into question the integrity of the House and the Speaker. This matter was found prima facie, Mr. MacKay moved a motion, and after debate the matter was referred to committee for study. See Debates, March 9, 1998, pp. 4560-75; March 10, 1998, pp. 4592-8, 4666-8. On April 27, 1998, the Standing Committee on Procedure and House Affairs presented its Twenty-Ninth Report which found that the statements made by the Members did not bring into question the integrity of the House or the Speaker. On May 5, 1998, the House concurred in the report. See Journals, April 27, 1998, p. 706; April 29, 1998, p. 722; May 5, 1998, pp. 744-5.
[95] 
The most notable instance occurred in 1987 when the Speaker accepted as a prima facie question of privilege a matter involving John Parry (Kenora–Rainy River), who divulged the result of an in camera vote. See Debates, April 28, 1987, pp. 5299, 5329-30; May 5, 1987, pp. 5737-42; May 14, 1987, pp. 6108-11; December 18, 1987, pp. 11950-1; Journals, May 14, 1987, p. 917; December 18, 1987, pp. 2014-6.
[96] 
See, for example, rulings of Speakers Jerome and Parent, Journals, October 22, 1975, pp. 791-2; Debates, December 9, 1997, p. 2945; November 26, 1998, p. 10467.
[97] 
This was noted by the Special Committee on the Rights and Immunities of Members in its First Report to the House presented on July 12, 1976 (Journals, p. 1422).
[98] 
Maingot, 2nd ed., pp. 247-55. See also rulings of Speakers, Debates, June 18, 1964, p. 4434; June 9, 1969, pp. 9899-900; April 9, 1976, p. 12668; August 12, 1988, p. 18272; March 24, 1994, pp. 2705-6. The Speaker has noted, however, that, as a citizen, a Member who has a complaint about media coverage of his or her own words or actions has access to the courts. Speaker Fraser stated in 1988: “Past Speakers have consistently argued that freedom of the press is one of the fundamental rights of our society which ought to be interfered with only if it is clearly in contempt of the House. Members who have complaints about reporting of their positions or activities should seek remedy in the courts” (Debates, August 12, 1988, p. 18272). See also Speaker Jerome’s ruling, Debates, June 23, 1977, pp. 7044-5.
[99] 
Debates, May 7, 1976, pp. 13269-71, 13280-1; Journals, May 7, 1976, p. 1275; May 21, 1976, pp. 1305-7.
[100] 
Standing Committee on Elections, Privileges and Procedure, Seventh Report, presented on December 18, 1987 (Journals, pp. 2014-6).
[101] 
Standing Committee on Procedure and House Affairs, Twenty-Second Report, Minutes of Proceedings, June 18, 1996, Issue No. 1, p. 50. The report was presented to the House on June 18, 1996 (Journals, pp. 565-6).
[102] 
Standing Committee on Procedure and House Affairs, Twenty-Ninth Report, presented to the House on April 27, 1998 (Journals, p. 706, Sessional Paper No. 8510-361-51).
[103] 
The most recent example of such an action was the reprimand of Ian Waddell (Port Moody–Coquitlam). See Journals, October 31, 1991, pp. 574, 579; Debates, October 31, 1991, pp. 4271-85, 4309-10.
[104] 
Maingot, 2nd ed., p. 160.
[105] 
This responsibility has been described in the Australian House of Representatives Practice and is pertinent to the Canadian House of Commons. See House of Representatives Practice, 3rd ed., pp. 724-6.
[106] 
It is for this reason that section 327 of the Canada Elections Act, R.S.C. 1985, c. E-2, was enacted to forbid pledges. This section makes it illegal for any candidate for election as a Member of Parliament to sign any written document by way of a demand or claim on the candidate if it requires the candidate to follow any course of action that will prevent him or her from exercising freedom of action in Parliament, if elected, or to resign as a Member if called on to do so by those who present the pledge. See also Chapter 4, “The House of Commons and Its Members”.
[107]
See section below, “Freedom of Speech”.
[108] 
Special Committee on the Rights and Immunities of Members, First Report, presented to the House on April 29, 1977 (Journals, pp. 720-9).
[109] 
See, for example, May, 22nd ed., Chapter 6, pp. 83-107; Maingot, 2nd ed., Chapters 3-5 and 7, pp. 25-105, 115-23; Redlich, Vol. III, Part IX, Chapter 1, pp. 42-50.
[110] 
Odgers, 8th ed., pp. 30-2.
[111] 
Odgers, 8th ed., p. 30.
[112] 
Odgers, 8th ed., p. 31.
[113] 
May, 22nd ed., p. 83.
[114] 
May, 22nd ed., p. 95. See also pages 95-7 for a discussion of the term.
[115] 
Maingot, 2nd ed., pp. 77-105.
[116] 
United Kingdom, House of Commons, Select Committee on Parliamentary Privilege, 1966-67, Report, p. 9. In its Third Report to the House, the United Kingdom, House of Commons, Select Committee on Privileges in 1976-77 recommended that a definition of “proceedings in parliament” be legislated, though this did not occur. The proposed definition had originally been suggested by the United Kingdom, Joint Committee on the Publication of Proceedings in Parliament (1969-70). In its Report presented to both Houses on March 30, 1999, the United Kingdom Joint Committee on Parliamentary Privilege again recommended that a statutory definition be enacted (para. 129, p. 38.)
[117] 
House of Representatives Practice, 3rd ed., pp. 683-4.
[118] 
See Maingot, 2nd ed., pp. 90, 92-4, 101-2, for an analysis of the scope of this privilege in relation to the role of the modern Member of Parliament, and the reasons of Hugessen A.C.J., for the Superior Court of Québec in Re Ouellet (No. 1), (1976) 67 D.L.R. (3) 73 (English version) or [1976] C.S. 503 (French version); confirmed by the Court of Appeal of Québec at (1976) 72 D.L.R. (3d) 95 (English version) or [1976] C.A. 788 (French version). See also the ruling given by Speaker Jerome, Debates, May 15, 1978, p. 5411.
[119] 
See Maingot, 2nd ed., pp. 33-6, for a discussion of freedom of speech and the criminal law.
[120] 
On December 7, 1984, John Nunziata (York South–Weston) rose on a question of privilege to claim that comments made by Svend Robinson (Burnaby) in committee constituted a contempt of Parliament. Mr. Robinson had alleged United States Central Intelligence Agency penetration at senior management levels of Petro-Canada and had named several individuals as CIA agents. In his ruling, Speaker Bosley noted that the statements made by Mr. Robinson did not constitute a contempt of Parliament in that no Member or official of the House had been obstructed or impeded in the discharge of his or her duty. On December 21, 1984, Mr. Robinson rose in the House to retract his remarks in the committee. He said that he had relied upon a confidential source of information and had availed himself of parliamentary immunity to accuse the Petro-Canada employees of spying for the CIA. He then went on to state: “While the tradition of parliamentary immunity is a long and important one, in retrospect I regret that I used my immunity to name these individuals. I have written to both men to express unreservedly my regret for having publicly named them in the Justice Committee. As well, Mr. Speaker, I wish at this time to issue a complete and unequivocal retraction of the allegations I made and unreservedly apologize to the two individuals involved… .” (see Debates, December 7, 1984, pp. 1004-7; December 11, 1984, pp. 1114-5; December 21, 1984, p. 1447).
[121] 
Debates, December 11, 1984, p. 1114.
[122] 
Debates, December 11, 1984, p. 1115.
[123] 
Maingot, 2nd ed., p. 160.
[124] 
Griffith and Ryle, p. 90.
[125] 
For protection provided to the media, see Maingot, 2nd ed., pp. 44-6, 50-9.
[126] 
Maingot, 2nd ed., pp. 39, 41, 44-6, 90-4.
[127] 
This was one of the main issues in the famous case of Stockdale v. Hansard. See May, 22nd ed., pp. 86-7, 161-3; Maingot, 2nd ed., pp. 63-75.
[128] 
Maingot, 2nd ed., pp. 82-94.
[129] 
On April 14, 1987, Otto Jelinek (Minister of State for Fitness and Amateur Sport) raised a question of privilege regarding oral questions asked about an alleged conflict of interest involving himself. Speaker Fraser ruled that the Minister’s capacity to function as a Minister and a Member was not impaired. See Debates, April 14, 1987, pp. 5124-34; May 5, 1987, pp. 5765-6.
[130] 
Debates, May 5, 1987, pp. 5765-6.
[131] 
Debates, September 30, 1994, p. 6371. On September 27, 1994, Svend Robinson (Burnaby–Kingsway) raised a point of order concerning remarks made by Roseanne Skoke (Central Nova) during second reading debate on Bill C-41 (Criminal Code Amendment (sentencing)) on September 20, 1994. Speaker Parent gave his ruling on September 30, stating that although he realized there existed a profound difference of opinion between the two Members, he acknowledged that the remarks made by Ms. Skoke were within the context of debate and not directed at any particular Member. See Debates September 20, 1994, pp. 5912-3; September 27, 1994, pp. 6183-4.
[132] 
The Speaker ruled on a question of privilege raised by Harvie Andre (Minister of Consumer and Corporate Affairs) on May 21, 1987, concerning questions asked by Ian Waddell (Vancouver–Kingsway) which, in the Minister’s view, implied that he was in a possible conflict of interest situation. The Speaker ruled that he was satisfied that there was no accusation directed against the Minister. See Debates, May 21, 1987, pp. 6299-306; May 26, 1987, pp. 6375-6.
[133] 
This ruling was given on December 3, 1991, following a point of order raised by Nelson Riis (Kamloops) on November 28, 1991, concerning remarks about the President of the Public Service Alliance of Canada made by Felix Holtmann (Portage–Interlake) during “Statements by Members”. See Debates, November 28, 1991, pp. 5498-9, 5509-10; December 3, 1991, pp. 5679-82.
[134] 
Debates, December 3, 1991, p. 5681.
[135]
For a complete discussion of the sub judice convention, see Chapter 13, “Rules of Order and Decorum”.
[136] 
See Special Committee on the Rights and Immunities of Members, First Report, Minutes of Proceedings and Evidence, April 4, 1977, Issue No. 1, Appendix “C”,“The Sub Judice Convention in the Canadian House of Commons”, pp. 1A: 11-2. See also Philip Laundy, “The Sub Judice Convention in the Canadian House of Commons”, The Parliamentarian, Vol. 57, No. 3 (July 1976), pp. 211-4.
[137] 
The practice has been codified in some jurisdictions either by the adoption of Standing Orders (Alberta, Ontario, Quebec, India (Lok Sabha), New Zealand) or by way of resolution (United Kingdom (House of Commons)). See also May, 22nd ed., pp. 333, 383-4.
[138] 
The report was presented to the House on April 29, 1977 (see Journals, pp. 720-9).
[139] 
Standing Orders 10 and 11. See also Chapter 7, “The Speaker and Other Presiding Officers of the House”, and Chapter 13, “Rules of Order and Decorum”.
[140] 
See Bourinot, 4th ed., pp. 42-7; May, 22nd ed., pp. 100-7; Maingot, 2nd ed., pp. 151-8.
[141] 
For its origins and history in the United Kingdom and Canada, see May, 1st ed., pp. 86-7, and Maingot, 2nd ed., pp. 152-5.
[142] 
For a discussion of the meaning of the term “felony”, see Edward McWhinney, “Forfeiture of Office on Conviction of an ‘Infamous Crime’,” Canadian Parliamentary Review, Vol. 12, No. 1 (Spring 1989), pp. 2-6.
[143] 
On February 16, 1965, G.J. McIlraith (President of the Privy Council) raised a question of privilege concerning the effects on the privileges of the House of the arrest of Gilles Grégoire (Lapointe) outside the Parliament Buildings on two warrants for traffic offences. The Speaker ruled the matter prima facie, and it was subsequently referred to the Standing Committee on Privileges and Elections. On March 19, 1965, the Committee presented its Fourth Report which found that the privilege of freedom from arrest of the Member had not been infringed (Journals, February 16, 1965, pp. 1035-6; March 19, 1965, pp. 1141-2).
[144] 
Bourinot, 4th ed., p. 43; Maingot, 2nd ed., pp. 151, 156-7.
[145] 
Maingot, 2nd ed., pp. 157-8. Bourinot, 4th ed., p. 44, notes that while the House will not normally interfere if a Member is committed for contempt, it does reserve the right to inquire into the nature of the offence and protect Members in proper cases.
[146] 
Bourinot, 4th ed., pp. 46-7. Bourinot also notes, based on English practice, that failure to inform the Speaker has not been viewed as a matter of privilege (p. 47).
[147] 
Maingot, 2nd ed., p. 155.
[148] 
Maingot, 2nd ed., p. 159; May, 22nd ed., p. 106.
[149] 
Jury selection is a matter of provincial jurisdiction. While exemption from jury duty is claimed as a right by the House of Commons, provincial jury legislation usually includes Members of Parliament as one of the exempt categories. In some provincial statutes, the staff of Members of the Legislative Assembly as well as officers of the Assembly are also exempted from jury duty. See, for example, The Jury Act, Revised Statutes of New Brunswick, 1973, c. J-3.1, s. 3; Juries Act, Revised Statutes of Ontario, 1990, c. J-3, s. 3; Jurors Act, Revised Statutes of Québec, c. J-2, s. 4; The Jury Act, 1981, Statutes of Saskatchewan, 1980-81, c. J-4.1, s. 4.
[150] 
Maingot, 2nd ed., p. 160.
[151] 
A session is one of the fundamental periods into which a Parliament is divided, usually consisting of a number of separate sittings. Sessions are begun by a Speech from the Throne and are ended by prorogation. Adjournments, whether they be for a few minutes or several months, are considered to be within a session.
[152] 
See Bourinot, 4th ed., pp. 45-6; May, 22nd ed., pp. 105-6; Maingot, 2nd ed., pp. 158-9. For a recent discussion of the issue, see Debates, November 25, 1998, pp. 10453-62.
[153] 
Maingot, 2nd ed., p. 158.
[154] 
Maingot, 2nd ed., p. 159.
[155] 
Maingot, 2nd ed., p. 159. Maingot also notes that while the service of a subpoena would not normally be raised in the House, the counsel who authorized the service should be advised by the Member or by general legal counsel of the House of Commons of the lawful claim of this privilege. In the United Kingdom, in certain cases when this has been raised by the Member concerned, the British Speaker has communicated with the court drawing attention to the privilege and asking that the Member be excused (May, 22nd ed., p. 105).
[156] 
May, 22nd ed., p. 106.
[157] 
See also David Kilgour and Jef Bowdich, “A serious question of immunity”, The Parliamentarian, October 1989, pp. 233-5.
[158] 
Debates, May 19, 1989, pp. 1951-3.
[159] 
Debates, April 4, 1989, p. 39.
[160] 
Debates, May 19, 1989, pp. 1952-3. In connection with Mr. Kilgour’s claim that communications between a Member of Parliament and a member of the public are privileged in the same manner as those between lawyer and client, the Speaker indicated that there are no precedents to support this claim. He then referred to comments made by Speakers Lamoureux and Jerome, as well as to his own ruling on November 17, 1987, to explain that the House cannot create new or extend existing privileges.
[161] 
Maingot, 2nd ed., p. 160.
[162] 
Maingot, 2nd ed., pp. 230-1.
[163] 
See Chapter 4, “The House of Commons and Its Members”. For a discussion of bribery and the acceptance of fees by Members, see Maingot, 2nd ed., pp. 59-61, 250-1. For a discussion of the 1994 United Kingdom questions for payment case and the resulting institution of a Code of Conduct for Members, see May, 22nd ed., pp. 112-5, 419-20.
[164] 
Maingot, 2nd ed., p. 15. See also May, 22nd ed., pp. 121-30.
[165] 
On September 19, 1973, Otto Jelinek (High Park–Humber Valley) raised a question of privilege claiming that an employee of the Canadian Broadcasting Corporation, in telephone conversations with the Member, had advised Mr. Jelinek to stop asking questions about television coverage of the Olympic games during Question Period or else it would be alleged that the Member had a contract with the CTV network and was in a conflict of interest. Mr. Jelinek claimed that these calls were an attempt to intimidate him. As the Member did not know the name of the caller, no specific charge could be made and therefore there was no prima facie question of privilege (Debates, September 19, 1973, p. 6709).
[166] 
On May 14, 1986, Herb Gray (Windsor West) rose on a question of privilege concerning the proposed inquiry into conflict of interest allegations against the former Regional Industrial Expansion Minister (Sinclair Stevens). The Opposition had maintained that such an inquiry should be carried out by the House itself through one of its committees. The Deputy Prime Minister (Erik Nielsen) had indicated that the inquiry would be undertaken by a person or persons outside the House, and that the inquiry’s terms of reference would include the various statements and allegations made in the House of Commons. Mr. Gray argued that the government was seeking, through executive action, to call into question statements made by Members in the House of Commons, a course of action which would infringe upon their freedom of speech. Mr. Gray also accused the Deputy Prime Minister, through his comments, of attempting to intimidate Members in the exercise of their duties. In his ruling, the Speaker noted that no court or inquiry may call into question or pass judgement on statements made by Members in the House, although it must remain possible to investigate the substance of an allegation once it has been made in the House. It was difficult for the Chair to determine whether the purposes of an inquiry were improper in advance of the inquiry being created since a breach of privilege could not be hypothetical. The Chair could not find an expressed intention to be a breach unless it were of itself a threat. No threat, real or implied, that Members be called to account for anything they said in the House had been made (Debates, May 16, 1986, p. 13362). See also Debates, May 12, 1986, pp. 13171-2; May 13, 1986, p. 13225; May 14, 1986, pp. 13270-3; May 16, 1986, pp. 13361-2.
[167] 
Herb Gray (Windsor West) rose on a question of privilege pertaining to access by certain Members by taxi to Parliament Hill. During a demonstration on Parliament Hill, which included taxi drivers protesting the Goods and Services Tax, several Members entered taxi cabs and asked to be driven to the main entrance of the Centre Block. However, their way was barred by a roadblock of RCMP cars. Some of the Members proceeded on foot, while others eventually reached the Centre Block by taxi after the roadblock was lifted. Mr. Gray submitted that the actions of the RCMP constituted a breach of Members’ privileges since they were denied access to the House of Commons. The Speaker ruled immediately, finding that a prima facie matter of privilege existed, and Mr. Gray moved that the matter be referred to the Standing Committee on Elections, Privileges, Procedure and Private Members’ Business. The motion was adopted. The Committee never reported on the matter. See Debates, October 30, 1989, pp. 5298-302; Journals, p. 773.
[168] 
See Debates, February 17, 1999, pp. 12011-2; Journals, February 17, 1999, p. 1517.
[169] 
Debates, February 17, 1999, pp. 12009-12; February 18, 1999, p. 12134; Journals, February 18, 1999, p. 1525. On April 14, 1999, the Standing Committee on Procedure and House Affairs presented its Sixty-Sixth Report to the House (Journals, p. 1714). The Committee suggested that measures be taken to address certain concerns raised in committee. These included better co-ordination between police forces and the House of Commons Security Service, a clearer legal definition of the parliamentary precinct, and an increased public awareness of the importance of the parliamentary precinct (paras. 18-22). The Committee concluded that there was no deliberate intention to contravene parliamentary privilege, that any contempt of Parliament that had occurred was “technical and unintended”, and that there was no need for sanctions (para. 23). No further action was taken on the report.
[170] 
On April 14, 1987, Otto Jelinek (Minister of State for Fitness and Amateur Sport) raised a question of privilege regarding oral questions asked about an alleged conflict of interest involving him. On May 5, 1987, Speaker Fraser ruled that the Minister’s capacity to function as a Minister and a Member was not impaired. See Debates, April 14, 1987, pp. 5124-34; May 5, 1987, pp. 5765-6.
[171] 
Debates, May 5, 1987, p. 5766.
[172]
On February 22, 1978, John Rodriguez (Nickel Belt) rose on a question of privilege complaining of possible surveillance activities undertaken against him. The matter was raised again on March 1 when Mr. Rodriguez argued that a bugging operation had taken place and that it was a breach of privilege since it called into question the privacy of communications between a Member and his constituents. On March 21, after the Speaker had found the question of privilege prima facie, Mr. Rodriguez moved his motion, which was negatived on a recorded division. See Journals, March 21, 1978, pp. 520-2, 525-6; Debates, February 22, 1978, p. 3129; March 1, 1978, pp. 3348-9; March 2, 1978, pp. 3384-5; March 8, 1978, pp. 3571-6; March 9, 1978, pp. 3607-9; March 16, 1978, pp. 3831-2; March 21, 1978, pp. 3975-7, 3988-9.
[173] 
On April 25, 1985, Andrew Witer (Parkdale–High Park) rose on a question of privilege relating to an advertisement which appeared in a Toronto-based Ukrainian-language newspaper. The ad in question identified Jesse Flis, the incumbent’s predecessor, as Member of Parliament for Parkdale–High Park, listing the address and phone number of Mr. Flis’ former constituency office. In his ruling, the Speaker noted that, based on the evidence available, a prima facie case of privilege must be found. Mr. Writer’s motion to refer the matter to the Standing Committee on Privileges and Elections was then agreed to. On May 30, 1985, the Committee presented its report which found that the advertisement had been published in error and that there had been no intention on the part of any of the parties involved to misrepresent Mr. Flis as the sitting Member of Parliament. It concluded that no further action was necessary. See Debates, April 25, 1985, pp. 4111-3; May 6, 1985, p. 4439; Journals, May 30, 1985, pp. 676-7.
[174] 
Debates, May 6, 1985, p. 4439.
[175] 
On November 3, 1978, Allan Lawrence (Northumberland–Durham) raised a question of privilege and charged that he had been deliberately misled by a former Solicitor General. Acting on behalf of a constituent who suspected that his mail had been tampered with, Mr. Lawrence had written in 1973 to the then Solicitor General who assured him that as a matter of policy the RCMP did not intercept the private mail of anyone. However, on November 1, 1978, in testimony before the McDonald Commission, the former commissioner of the RCMP stated that they did indeed intercept mail on a very restricted basis and that the practice was not one which had been concealed from Ministers. Mr. Lawrence claimed that this statement clearly conflicted with the information he had received from the then Solicitor General some years earlier. On December 6, Speaker Jerome dealt with a number of points raised in the presentations on the question of privilege and ruled the matter prima facie. Mr. Lawrence then moved that the matter be referred to the Standing Committee on Privileges and Elections for investigation and report. The motion was debated over the course of two days and was negatived on a recorded division. See Journals, November 9, 1978, pp. 125-9; December 6, 1978, pp. 221-4; December 7, 1978, pp. 228-9; Debates, November 3, 1978, pp. 777-92; November 8, 1978, p. 924; November 9, 1978, pp. 964-6; December 6, 1978, pp. 1856-77; December 7, 1978, pp. 1892-925.
[176] 
Debates, February 20, 1984, p. 1560. On February 6, 1984, Albert Cooper (Peace River) had risen on a question of privilege arising out of a telephone conversation between a member of his staff and an official in the office of the President of Canada Post Corporation. Mr. Cooper, Opposition critic for Canada Post, alleged that the official had been abusive. The official had complained that Mr. Cooper’s office had not cleared questions asked by the Member in the House with the President’s office and warned that if this was not done in the future, Mr. Cooper could expect little co-operation from Canada Post. Mr. Cooper argued that this was an attempt to inhibit his freedom of speech, influence his actions in the House and hamper him in his role as spokesman for the Official Opposition. On February 9, 1984, the Minister of Labour (André Ouellet), who was also responsible for Canada Post, reported to the House that he had spoken to the official involved who denied making any such threats. The Minister also challenged the validity of Mr. Cooper’s question of privilege since it was based on a conversation between his assistant and the officer at Canada Post and did not directly involve the Member. On February 20, 1984, the Speaker ruled that a prima facie question of privilege had been established. Mr. Cooper then moved a motion to refer the matter to the Standing Committee on Privileges and Elections. The question was put and the motion was negatived on a recorded division. See Debates, February 6, 1984, pp. 1101-6; February 9, 1984, pp. 1234-5; February 14, 1984, pp. 1382-4; February 20, 1984, pp. 1559-61; Journals, February 20, 1984, pp. 188-9.
[177] 
Don Boudria (Glengarry–Prescott–Russell) rose on a question of privilege concerning alleged threats to a witness who had appeared before a sub-committee. Mr. Boudria contended that witnesses before committees enjoy the same privileges as Members of the House and are accorded the temporary protection of the House. In the Member’s opinion, if such threats were to go unchallenged, it would imply that witnesses before committees could not testify without the threat of being sued or intimidated (Debates, December 4, 1992, pp. 14629-31).
[178] 
Journals, February 18, 1993, p. 2528; February 25, 1993, p. 2568.
[179] 
Standing Committee on House Management, Sixty-Fifth Report, Minutes of Proceedings and Evidence, February 18, 1993, Issue No. 46, p. 9. The Report also quoted May, 21st ed., p. 131: “Any conduct calculated to deter prospective witnesses from giving evidence before either House or a committee is a contempt [of Parliament]… . On the same principle, molestation of or threats against those who have previously given evidence before either House or a committee will be treated by the House as a contempt.”
[180]
See also Chapter 7, “The Speaker and Other Presiding Officers of the House”.
[181] 
The matter was raised by Allan MacEachen (President of the Privy Council) on a motion on matters of urgency moved without notice. The text of the motion read: “That the statement ‘Let it be said of James Jerome that he is not a Speaker but a gambler who plays incredible odds for the popularity of his party’ contained in the editorial in the Globe and Mail on December 22, 1976, is a gross libel on Mr. Speaker, and that the publication of the article is a gross breach of the privileges of this House.” See Debates, December 22, 1976, p. 2241.
[182] 
On March 16, 1993, Gilles Bernier (Beauce) rose on a question of privilege regarding comments made by Benoît Tremblay (Rosemont) and reported in a newspaper, which cast doubts on the integrity and impartiality of Charles DeBlois (Beauport–Montmorency–Orléans), Assistant Deputy Chairman of Committees of the Whole. The Speaker ruled that the matter was a prima facie case of privilege; Mr. Bernier then moved a motion to refer the matter to the Standing Committee on House Management and the motion was adopted. On March 25, 1993, Mr. Tremblay rose in the House and withdrew the offending comments. No further action was taken and the Committee did not report on the matter. See Debates, March 16, 1993, p. 17027; March 23, 1993, pp. 17403-5; March 25, 1993, p. 17537; Journals, March 23, 1993, p. 2688.
[183] 
Mr. MacKay moved a motion that the matter be referred to the Standing Committee on Procedure and House Affairs. Debate on the motion ensued, continuing the next day, and the motion was adopted with an amendment on a recorded division. See Debates, March 9, 1998, pp. 4560-75; March 10, 1998, pp. 4592-8, 4666-8; Journals, March 9, 1998, p. 540; March 10, 1998, pp. 548, 550-2. On April 27, 1998, the Committee presented its Twenty-Ninth Report, which was concurred in by the House on May 5, 1998 (Journals, April 27, 1998, p. 706; April 29, 1998, p. 722; May 5, 1998, pp. 744-5). In its report, the Committee noted that the Members involved were adamant that they had not intended to intimidate or threaten the Speaker in any way or show disrespect for the House or the Speaker. It concluded that the statements attributed to the Members “were not intended to be contemptuous of the House of Commons or the Speaker” (Standing Committee on Procedure and House Affairs, Twenty-Ninth Report, April 27, 1998, p. 5).
[184] 
Debates, July 15, 1980, pp. 2914-5. On July 3, 1980, Bill Domm (Peterborough) rose on a question of privilege to protest that not only had the Department of the Secretary of State been ordered not to send him a list of the new Canadian citizens in his constituency, but moreover, he had been deliberately misled by officials and personally supplied with false documents. In finding that there was no prima facie question of privilege, the Speaker noted that the documents submitted by the Member did not clearly indicate inaccuracies. Furthermore, even if they had been shown to be incorrect, falsified or altered, which they had not, there was no indication that the intent had been to deceive the House. See also Debates, July 3, 1980, pp. 2540-6; July 14, 1980, pp. 2855-7.
[185] 
Debates, November 17, 1987, p. 10888. On October 26, 1987, John Nunziata (York South–Weston) rose on a question of privilege regarding the alleged interception by the Correctional Service of Canada of a telephone conversation between the Member’s office and an inmate of Joyceville Penitentiary who was also a constituent. Mr. Nunziata alleged that “As a result of this conversation the inmate was transferred to the maximum security penitentiary at Millhaven and put in segregation”. The Member contended that his privileges as a Member had been breached with regard to his ability to deal with constituents “in an unfettered fashion” and his privileges as an Opposition critic for the Solicitor General had been breached with regard to access to inmates and conducting conversations with them in private. The Member also contended that, although he did not speak personally with the inmate, his privileges as a Member must also extend to any staff working on his behalf. On November 17, 1987, in his ruling, the Speaker noted that the House cannot create new privileges. Quoting a 1971 Speaker Lamoureux ruling, the Speaker reiterated that the House should not construe circumstances in such a way as to add to the privileges which have been recognized over the years. The Speaker indicated that he was unable to find anything which would extend parliamentary privilege to the actions of the staff of a Member. Indeed, the Speaker contended, even with the direct involvement of the Member, he could not find that a prima facie case of privilege existed. With regards to the Member’s status as an Opposition critic to the Solicitor General, the Speaker stated that, although the position may bring extra responsibilities, it does not afford any special privileges above those of any other Member. See Debates, October 26, 1987, pp. 10385-7; October 27, 1987, pp. 10447-9; November 17, 1987, pp. 10887-9.
[186] 
Debates, May 15, 1978, p. 5411. On May 2, 1978, Ron Huntington (Capilano) raised a question of privilege. He explained that the Canadian Union of Postal Workers (CUPW) (Vancouver) had brought a civil suit against him because of remarks he had made on a radio talk show in which he repeated sentiments originally expressed in a committee of the House. Mr. Huntington complained that he was the victim of harassment and attempted intimidation and that the actions of the union were calculated to obstruct him in the performance of his parliamentary duties. Mr. Huntington based his question of privilege upon two points: a Member’s right to protection from obstruction and the concept of a parliamentary proceeding. Mr. Huntington claimed that his remarks, since they had been made originally in committee, fell within the ambit of a parliamentary proceeding. In his ruling, the Speaker pointed out that while there may be circumstances in which a matter arising outside Parliament can properly be considered as an extension of a proceeding in Parliament, and therefore be covered by privilege, a radio talk show would not be one. See Debates, May 2, 1978, pp. 5069-73; May 15, 1978, p. 5411.
[187] 
Debates, November 2, 1978, p. 730. On October 31, 1978, Simma Holt (Vancouver–Kingsway) had risen on a question of privilege claiming that she had been verbally insulted and had had a protest button pulled from her hand by a commissioner at a Canadian Radio-television and Telecommunications Commission hearing in British Columbia. The Member had been attending the CRTC hearing to intervene on behalf of constituents over cable television service in Vancouver. The actions taken against her, she argued, interfered with her right as a Member of Parliament to appear and discharge her responsibilities to her constituents before a federal commission. She claimed that the actions of the commissioner against her constituted a breach of privilege and a contempt of Parliament. See Debates, October 31, 1978, pp. 645-50; November 2, 1978, pp. 729-31.
[188] 
Maingot, 2nd ed., p. 256; see also pp. 165-6. Maingot cites the case of the physical assault on J.B.E. Dorion (Drummond and Arthabaska) by Elzéar Gérin Lajoie, editor of the newspaper, Le Canada, which took place in the Library of the Legislative Assembly of the Province of Canada while the Assembly was sitting on July 31, 1866. An argument had taken place over an article about Mr. Lajoie published in the newspaper, Le Défricheur, owned by Mr. Dorion. Ultimately, blows were exchanged. After the matter was raised in the House, the House adopted an order that the Speaker issue a warrant to the Sergeant-at-Arms to take Mr. Lajoie into custody and bring him to the Bar of the House forthwith (Journals, July 31, 1866, p. 257). On August 1, 1866, Mr. Lajoie appeared at the Bar and explained his actions. The House then resolved that Mr. Lajoie was guilty of a breach of the privileges of the House and ordered that he be reprimanded at the Bar by the Speaker and committed to the custody of the Sergeant-at-Arms during the pleasure of the House. Mr. Lajoie was then reprimanded by the Speaker as follows:
Mr. Gérin Lajoie — It is a power incidental to the constitution of this House to preserve peace and order within its precincts, and protect the Members of it from insults and assault. This power is necessary, not only to insure the freedom of action of Members, but that freedom of discussion which is one of their fundamental rights.
You, Elzéar Gérin Lajoie, pretending a cause of complaint against a Member of this House, sought him out, and came within the precincts of this Building, and within a part thereof to which you are entitled to resort — not by right, but by favour only — grossly insulted that Honorable Member, and concluded by violently assaulting him. For these gross breaches of privilege you have not even thought it judicious or becoming to offer any apology; you have mistaken your rights and position in reference to Honorable Members and in this Building. The place in which this insult was offered and assault committed greatly aggravates the criminality of your conduct.
Having been found guilty of a breach of the privileges of this House, in having assaulted Jean Baptiste Eric Dorion, Esquire, a Member thereof, you have rendered yourself liable to such punishment as this House might award; and this House having ordered that you be reprimanded, you are reprimanded accordingly.
The Order of the House directs that you be committed to the custody of the Sergeant-at-Arms, during the pleasure of this House (Journals, August 1, 1866, pp. 263-6).
[189] 
Debates, May 15, 1985, pp. 4768-9.
[190] 
On April 29, 1986, Sheila Copps (Hamilton East) rose on a question of privilege arguing that her privileges had been adversely affected in that the office of the Deputy Prime Minister (Erik Nielsen) had improperly monitored communications between Members of Parliament and the Assistant Deputy Registrar General with the intention of interfering with the exercise of their duties and attempting to intimidate them. This focussed on Members’ inquiries of the Assistant Deputy Registrar General about compliance with conflict of interest guidelines. In his ruling, the Speaker felt that the fact that the Deputy Prime Minister had inquired whether Members of Parliament had been in communication with the Assistant Deputy General did not seem to constitute an interception of those communications. See Debates, April 29, 1986, p. 12756; April 30, 1986, p. 12791; May 1, 1986, p. 12847.
[191] 
Debates, November 6, 1986, p. 1147; December 9, 1986, p. 1903.
[192] 
Debates, March 24, 1994, p. 2706. Jag Bhaduria (Markham–Whitchurch–Stouffville) had raised the matter on February 15, 1994, claiming that media accounts of a dispute he had had with the Toronto Board of Education over his academic credentials while in their employ impeded his ability to function effectively and efficiently as a Member of Parliament. He also stated that he had been threatened by an anonymous caller. See Debates, February 15, 1994, pp. 1387-8; February 16, 1994, p. 1431; February 17, 1994, pp. 1507-8; February 23, 1994, p. 1728; March 23, 1994, p. 2677; March 24, 1994, pp. 2705-6.
[193] 
Debates, May 6, 1996, p. 2367. On April 24, 1996, John Williams (St. Albert) rose on a question of privilege to argue that statements by an official in the Government House Leader’s office quoted in the media to the effect that the Member’s questions were outrageous and that the Government was not going to divert personnel to answer the questions were a contempt of the House. On May 6, 1996, stressing the importance of written questions as a tool for Members which help to hold the government accountable for its actions, the Speaker ruled that there was no question of privilege since the Deputy House Leader had indicated that answers to the questions were being prepared. See Debates, April 24, 1996, pp. 1894-7; May 6, 1996, pp. 2366-7.
[194] 
Maingot, 2nd ed., p. 179. For a full description of the corporate rights, privileges and powers of the House and of the Senate, see Maingot, 2nd ed., pp. 179-215.
[195] 
R.S.C. 1985, c. P-1, ss. 10-13.
[196] 
Maingot, 2nd ed., p. 180.
[197] 
Power is delegated to the Speaker, particularly in relation to discipline within the Chamber, under the provisions of Standing Orders 10, 11 and 16. Power is also delegated to the Sergeant-at-Arms in the case of “strangers” under Standing Orders 157 and 158.
[198] 
Maingot, 2nd ed., pp. 193-5.
[199] 
May, 22nd ed., p. 138, notes that the last time the British House of Commons imposed a fine was in 1666 and its power to do so was denied by Lord Mansfield in R v Pitt in 1762.
[200] 
For further elaboration, see section below entitled “Privilege and the Constitution”. See also Maingot, 2nd ed., pp. 334-41.
[201] 
Journals, March 10, 1873, pp. 10-12; March 26, 1873, pp. 70-3; March 27, 1873, pp. 75-7; March 28, 1873, p. 84.
[202] 
Journals, April 7, 1873, pp. 133-4. According to Bourinot, 4th ed., p. 53, the Speaker subsequently informed the House that Mr. Tassé had been dismissed.
[203] 
Journals, November 3, 1873, pp. 134-5; November 4, 1873, p. 139; November 7, 1873, p. 142.
[204] 
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.
[205] 
Journals, May 13, 1879, p. 423; May 15, 1879, p. 436; February 16, 1880, p. 24; February 24, 1880, pp. 58-9.
[206] 
Journals, May 12, 1887, p. 121; May 30, 1887, pp. 187-93.
[207] 
Journals, June 5, 1891, p. 205; June 16, 1891, pp. 211-2.
[208] 
Journals, August 27, 1891, p. 454; September 1, 1891, p. 467.
[209] 
Journals, June 7, 1894, p. 242; June 11, 1894, p. 288; June 13, 1894, pp. 298-300.
[210] 
At a later date, a Supply motion attempted to remove Mr. Preston from office but it was not adopted by the House. See Journals, May 30, 1906, p. 316; June 1, 1906, p. 323; June 4, 1906, pp. 331-3; July 3, 1906, pp. 475-6.
[211] 
Journals, June 6, 1906, p. 342; June 7, 1906, pp. 345-6; June 14, 1906, pp. 370-7.
[212] 
Journals, February 14, 1913, p. 249; February 17, 1913, p. 254; February 18, 1913, pp. 266-7; February 20, 1913, pp. 274-8.
[213] 
Journals, October 31, 1991, pp. 574, 579; Debates, October 31, 1991, pp. 4271-85, 4309-10. As a sitting Member, the individual could have received the admonishment at his assigned place, which would have been the normal practice. In this case, however, the motion did specifically call for the Member to appear at the Bar.
[214] 
Maingot, 2nd ed., pp. 193-209.
[215] 
Journals, May 1, 1868, pp. 267-8; May 2, 1868, p. 271.
[216] 
Journals, May 10, 1873, pp. 317-8; May 12, 1873, pp. 327-8.
[217] 
Journals, November 3, 1873, p. 134-5; November 4, 1873, p. 139; November 7, 1873, p. 142.
[218] 
Journals, February 14, 1913, p. 249; February 17, 1913, p. 254; February 18, 1913, pp. 266-7; February 20, 1913, pp. 274-8.
[219] 
May, 20th ed., p. 139.
[220] 
Bourinot, 4th ed., p. 64. For a discussion of expulsion and in particular the possible role of the Canadian Charter of Rights and Freedoms, see Gwenn Ronyk, “The Power to Expel”, The Table, Vol. 53 (1985), pp. 43-50, and Andrew Heard, “The Expulsion and Disqualification of Legislators: Parliamentary Privilege and the Charter of Rights”, Dalhousie Law Journal, Vol. 18 (Fall 1995), pp. 380-407.
[221] 
Maingot, 2nd ed., p. 211; see also pp. 212-5.
[222] 
Journals, April 15, 1874, pp. 64-5; April 16, 1874, pp. 67-71; April 17, 1874, p. 74.
[223] 
Journals, February 4, 1875, p. 42; February 22, 1875, p. 111; February 24, 1875, pp. 118-25.
[224] 
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.
[225] 
Journals, January 30, 1947, pp. 4-8. The matter of the expulsion of Members is also treated in Chapter 4, “The House of Commons and Its Members”.
[226] 
See Maingot, 2nd ed., pp. 183-7. Maingot states: “The right to regulate its own internal affairs and procedures free from interference includes:
  1. The right to enforce discipline on Members of the House of Commons by suspension, commitment, and expulsion. However, this creates no disability to stand for re-election.
  2. The right to secure the attendance of persons on matters of privilege, and to deliberate and examine witnesses, and to do so behind closed doors (in camera). This latter aspect may properly be considered to be included with the right to exclude strangers from the precincts.
  3. The right to control the publication of its debates and proceedings and those of its committees by prohibiting their publication.
  4. The right to administer that part of the statute law relating to its internal procedure without interference from the courts.
  5. The right to administer its affairs within the precincts and beyond the debating Chamber, such as regulating the sale of intoxicating beverages within the precincts, and appointing and managing its staff.
  6. The right to settle its own code of procedure.
  7. The power to send for persons in custody.”
[227] 
Members have objected to what they considered unfair interference by the judiciary. For example, on February 3, 1998, John Bryden (Wentworth–Burlington) raised a question of privilege concerning remarks made by Justice Marcel Joyal of the Federal Court. During a court proceeding, Justice Joyal had criticized the behaviour of Members during a Question Period, when Members had cheered and applauded the announcement of the dismissal of the chairman of the Canadian Labour Relations Board by Lawrence MacAulay (Minister of Labour). (Justice Joyal had compared them to the crowds around the guillotine during the French Revolution.) The Chairman had initiated court proceedings to prevent his dismissal, and it was during these proceedings that Justice Joyal had made his comments. Mr. Bryden argued that Justice Joyal was in contempt of the House. In a statement on February 11, 1998, Speaker Parent noted that there is a necessary constitutional divide between the legislative and judicial branches. He also noted that the practice of the House is to treat as unparliamentary and a breach of order any reference to a judge or court which is a personal attack or censure. He went on to state that the House of Commons deserved at least the same respect from the courts. As the Clerk of the House had received correspondence from the Chairman of the judicial conduct committee of the Canadian Judicial Council that Justice Joyal’s remarks were being investigated, the Speaker decided to await the outcome of the review before taking further action on Mr. Bryden’s question of privilege (Debates, February 11, 1998, pp. 3737-8). On April 21, 1998, the Speaker tabled correspondence and documentation from the Judicial Council. The Council’s committee had found that Justice Joyal’s comments were inappropriate and outside the sphere of proper judicial expression. It also noted that the Justice had acknowledged publicly the inappropriateness of his remarks. The committee concluded that the Judge’s conduct did not warrant a formal investigation. Speaker Parent stated that with the tabling of these documents he considered the matter closed (Debates, April 21, 1998, p. 5910; Journals, April 21, 1998, p. 682). See also Robert Marleau, “Relationship Between Parliament and the Courts in Canada: The Joyal Affair,” The Table, Vol. 66 (1998), pp. 15-21.
[228] 
On March 8, 1990, Speaker Fraser ruled on a point of order raised on March 5, 1990 by Nelson Riis (Kamloops). The Member had asked the Speaker to consider whether debate on the Budget, presented on February 20, 1990, should be allowed to continue and whether the House should suspend any proceedings in relation to a bill on notice based on the government’s budget policy, given the action taken by the government of British Columbia to challenge in the courts the federal government’s decision to cap its contributions to the Canada Assistance Plan. In his ruling, the Speaker pointed out that “as the debate on the budget is generally wide-ranging and touches upon all aspects of the government’s budgetary policy, members are at liberty to debate or not debate whatever aspect of the motion they choose. Therefore I must rule that the sub judice convention does not apply in the present circumstances” (Debates, March 8, 1990, p. 9007). See also Debates, March 5, 1990, pp. 8767-70; March 8, 1990, pp. 9006-9.
[229] 
For discussion of the possible role of the courts, see Maingot, 2nd ed., pp. 185-7. On January 22, 1999, Justice Chadwick of the Ontario Court (General Division) did rule on a matter brought before the Court which arose from an order of the House. On June 4, 1998, the House adopted the following order: “That this House order that Ernst Zundel be denied admittance to the precinct of the House of Commons during the present Session” (see Journals, June 4, 1998, p. 937; Debates, June 4, 1998, pp. 7608-9, 7616). The House had adopted this order to prevent Mr. Zundel from holding a press conference in the Canadian Parliamentary Press Gallery’s Conference Room in the Centre Block of the Parliament Buildings. Mr. Zundel 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 Canadian Charter of Rights and Freedoms which was not justified under section 1 of the Charter, and seeking damages against each defendant for, among other reasons, wrongfully and maliciously violating his right to freedom of expression with intent to injure him. In dismissing the action, Justice Chadwick found, among other reasons, that the House of Commons was exercising its parliamentary privilege in restricting the precinct of the House of Commons and did not prohibit Mr. Zundel from speaking. The Justice also stated: “Although there is no reference to the reason behind the decision, it is obvious it was to preserve the dignity and integrity of Parliament.” (Ernst Zundel v. Liberal Party of Canada et al., Reasons for Decision, Ontario Court (General Division), Court File No. 98-CV-7845, January 22, 1999.)
[230] 
For example, although Standing Order 109 confers a right upon demand to a comprehensive response from the government to a committee report within 150 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.
[231] 
Maingot, 2nd ed., p. 165. However, Maingot notes: “Generally speaking, the ordinary civil and criminal laws of the Province of Ontario and of Canada respectively apply on Parliament Hill and within the precincts in the same way as elsewhere in Ontario” (p. 172).
[232] 
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 he had been served with a notice of intention to bring action against him unless he made certain withdrawals concerning an individual, Mr. Ralfe. The Member was disturbed by the fact that the document had been served to him in the lobby of the House of Commons. 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. She also made reference to the ruling of Speaker Fraser of May 19, 1989, on a question of privilege raised by David Kilgour (Edmonton Southeast) who had been served in his Centre Block Office. (See Debates, May 19, 1989, pp. 1951-3. See also above section entitled “Exemption from Appearing as a Witness”.) 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. See Debates, June 4, 1993, pp. 20375-7; June 10, 1993, pp. 20693-4. See also Debates, June 4, 1993, pp. 20371-2.
[233] 
Parliament of Canada Act, R.S.C. 1985, c. P-1, s. 5.
[234] 
Standing Order 15.
[235]
See Chapter 4, “The House of Commons and Its Members”, and Chapter 13, “Rules of Order and Decorum”.
[236] 
May, 22nd ed., p. 179.
[237] 
Standing Order 108 (1)(a).
[238] 
Maingot, 2nd ed., p. 190. See also p. 191. For a more detailed examination of the functioning of committees, see Chapter 20, “Committees”.
[239] 
See Maingot, 2nd ed., pp. 191-2.
[240] 
R.S.C. 1985, c. P-1, ss. 10-13.
[241] 
R.S.C. 1985, c. P-1, ss. 7-9.
[242] 
The famous case of Stockdale v. Hansard 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, 2nd ed., pp. 281-7). As a result, legislation was adopted throughout the British Empire in the nineteenth century to grant assemblies the right to publish documents which contained such material.
[243] 
Maingot, 2nd ed., p. 16.
[244] 
For the role of the House of Lords as a Court of Judicature, see May, 22nd ed., pp. 60-3.
[245] 
For a history of the courts and parliamentary privilege, see Maingot, 2nd ed., pp. 271-302; May, 22nd ed., pp. 153-72.
[246] 
R.S.C. 1985, c. P-1, s. 5.
[247] 
For a discussion of this matter, see Odgers, 8th ed., pp. 35-8, 40-2.
[248] 
May, 22nd ed., pp. 65-6; Maingot, 2nd ed., p. 16.
[249] 
Hatsell, Vol. 1, p. 1.
[250] 
Geoffrey Marshall, “The House of Commons and Its Privileges,” The House of Commons in the Twentieth Century, edited by S.A. Walkland, Oxford: Clarendon Press, 1979, p. 205; May, 22nd ed., pp. 131-2.
[251] 
Marshall, p. 207; May, 22nd ed., p. 133.
[252] 
Marshall, p. 207; May, 22nd ed., pp. 133, 135-6.
[253] 
For a list of Commonwealth countries which had codified their privileges in statute as of 1966, see United Kingdom, House of Commons, Select Committee on Parliamentary Privilege, 1966-67, Report, pp. 184-5.
[254] 
Australia, Parliament, Parliamentary Privileges Act 1987. See also Odgers, 8th ed., pp. 27-8.
[255] 
For the text of the Senate resolutions, see Odgers, 8th ed., pp. 537-52. See also Harry Evans, “Parliamentary Privilege: Legislation and Resolutions in the Australian Parliament”, The Table, Vol. 56 (1988), pp. 21-2. This was done as a matter of necessity. The legislation was occasioned by two judgements of the Supreme Court of New South Wales, which severely restricted Parliament’s privilege of freedom of speech. As Evans noted, there has always been great reluctance on the part of Parliaments, which have inherited their privilege, practices and traditions from Britain, to legislate for parliamentary privilege. The basic reason for this reluctance is the danger of unduly restricting the powers and immunities of Houses of Parliament by tying them to precise legislative terms. It was thought better to rely on common law and the broad terms of the old statutes such as the Bill of Rights.
[256] 
Evans, p. 30.
[257] 
Evans, pp. 31-3.
[258] 
Sylvia Song, “The Reform of Parliamentary Privilege: Advantages and Dangers,” Legislative Studies, Vol. 12, No. 1 (Spring 1997), p. 39.
[259] 
Evans, p. 35.
[260] 
Song, p. 31.
[261] 
United Kingdom, House of Commons, Select Committee on Parliamentary Privilege, 1966-67, Report, pp. v-vii, viii-xi, paras. 5-10, 16-24.
[262] 
United Kingdom, House of Commons, Select Committee on Parliamentary Privilege, 1966-67, Report, p. xxxix, para. 146.
[263] 
United Kingdom, House of Commons, Select Committee on Parliamentary Privilege, 1966-67, Report, p. xxvii, para. 87.
[264] 
United Kingdom, House of Commons, Select Committee on Parliamentary Privilege, 1966-67, Report, pp. xlii-xliv, paras. 162-75.
[265] 
United Kingdom, House of Commons, Select Committee on Parliamentary Privilege, 1966-67, Report, pp. xliv-xlvii, paras. 176-91.
[266] 
See “Summary of Principal Recommendations”, United Kingdom, House of Commons, Select Committee on Parliamentary Privilege, 1966-67, Report, pp. xlix-li, para. 205.
[267] 
United Kingdom, House of Commons, Select Committee on Parliamentary Privilege, 1976-77, Third Report, pp. ix-x, paras. 16-8.
[268] 
United Kingdom, House of Commons, Select Committee on Parliamentary Privilege, 1976-77, Third Report, p. xiv, para. 16.
[269] 
May, 22nd ed., p. 82.
[270] 
See “Summary of Recommendations”, United Kingdom, Joint Committee on Parliamentary Privilege, 1998-99, Report, pp. 1-7.
[271] 
See Maingot, 2nd ed., pp. 303-50.
[272] 
Barry L. Strayer, The Canadian Constitution and the Courts: The Function and Scope of Judicial Review, 3rd ed., Toronto: Butterworths, p. 224.
[273] 
Maingot, 2nd ed., p. 303.
[274] 
Parliament of Canada Act, R.S.C. 1985, c. P-1, s. 5.
[275] 
Maingot, 2nd ed., p. 306.
[276] 
Maingot, 2nd ed., p. 306.
[277] 
Maingot, 2nd ed., p. 307.
[278] 
Strayer, p. 224.
[279] 
Maingot, 2nd ed., pp. 122-3.
[280] 
Maingot, 2nd ed., p. 123: “The Criminal Code applies to the internal regulation of the Houses of Parliament, including the alleged criminal misuse of Members’ budgets”.
[281] 
Maingot, 2nd ed., pp. 234-5.
[282] 
United Kingdom, House of Commons, Select Committee on Parliamentary Privilege, 1966-67, Report, p. 1.
[283] 
Maingot, 2nd ed., p. 155.
[284]
See above section entitled “Rights and Immunities of Individual Members”.
[285] 
Maingot, 2nd ed., p. 156.
[286] 
See Special Committee on Rights and Immunities of Members, First Report, presented to the House on July 12, 1976 (Journals, pp. 1421-3), for a summary of the case. See also Maingot, 2nd ed., p. 174. See also above section entitled, “Rights and Immunities of Individual Members”. In the United Kingdom, a Member may even be arrested in the House itself, and writs may be served on Members in the precinct of Westminster Palace provided, in both cases, that the House gives leave if it is a sitting day (May, 22nd ed., pp. 98, 100-1, 131n).
[287] 
May, 22nd ed., p. 98.
[288] 
Maingot, 2nd ed., pp. 164-5, 171-2.
[289] 
May, 22nd ed., pp. 100-2.
[290] 
Maingot, 2nd ed., p. 171.
[291] 
United Kingdom, House of Commons, Select Committee on Parliamentary Privilege, 1966-67, Report, p. xvi, para. 47.
[292] 
Bourinot, 4th ed., p. 37.
[293] 
Standing Orders 157 and 158.
[294] 
This has been made clear by Speakers in rulings over the years. See, for example, Debates, May 15, 1970, p. 7007; May 25, 1970, p. 7255; May 21, 1981, pp. 9769-70; May 26, 1981, pp. 9920-1; May 27, 1981, pp. 9983-4; June 4, 1986, p. 13961.
[295] 
Journals, September 21, 1973, p. 567.
[296] 
Journals, September 21, 1973, p. 567.
[297] 
Debates, November 30, 1979, pp. 1890-2.
[298] 
Debates, November 30, 1979, p. 1891.
[299] 
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, Vol. 14, No. 4 (Winter 1991-92), pp. 18-21.
[300] 
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.
[301] 
Journals, May 29, 1990, pp. 1775-6.
[302] 
Journals, June 1, 1990, pp. 1797-804.
[303] 
Journals, June 1, 1990, pp. 1798-9.
[304] 
Journals, June 26, 1990, p. 1956.
[305] 
These provisions were incorporated into the Act as sections 52.6 to 52.9. See the Parliament of Canada Act, R.S.C 1985, c. P-1 as amended by S.C. 1991, c. 20, s. 2.
[306] 
Parliament of Canada Act, R.S.C. 1985, c. P-1 as amended by S.C. 1991, c. 20, s. 2 (s. 52.5(1)). Such by-laws must be tabled by the Speaker within 30 days (s. 52.5(2)). “Parliamentary functions” include duties and activities related to the position of Member of the House of Commons wherever performed and includes public and official matters and partisan political activity. The Board may also issue general opinions regarding the proper use of funds, goods, services and premises (s. 52.8).
[307] 
Parliament of Canada Act, R.S.C. 1985, c. P-1 as amended by S.C. 1991, c. 20, s. 2 (s. 52.6(1)).
[308] 
Parliament of Canada Act, R.S.C. 1985, c. P-1 as amended by S.C. 1991, c. 20, s. 2 (s. 52.6(2)).
[309] 
Parliament of Canada Act, R.S.C. 1985, c. P-1 as amended by S.C. 1991, c. 20, s. 2 (s. 52.7(1)).
[310] 
Parliament of Canada Act, R.S.C. 1985, c. P-1 as amended by S.C. 1991, c. 20, s. 2 (ss. 52.7(1), 52.9(4)).
[311] 
Parliament of Canada Act, R.S.C. 1985, c. P-1 as amended by S.C. 1991, c. 20, s. 2 (s. 52.9(1)).
[312] 
Parliament of Canada Act, R.S.C. 1985, c. P-1 as amended by S.C. 1991, c. 20, s. 2 (ss. 52.7(2) and (4)). Criminal process is defined as wiretap authorizations, search warrants, seize or freeze orders relating to the proceeds of crime and the laying of criminal charges (see s. 52.7(3)).
[313] 
Parliament of Canada Act, R.S.C. 1985, c. P-1 as amended by S.C. 1991, c. 20, s. 2 (ss. 52.9(2) and (3)).
[314] 
Ho Quong v. Cuddy (1914) 7 Western Weekly Reports, pp. 797-802 (Alta C.A).
[315] 
Re: Bell Telephone Co. of Canada (1947), 89 C.C.C. 196, 4 C.R. 162 (Ont. H.C.), in Canadian Criminal Procedure, 6th ed., edited by Justice R.E. Salhany, Aurora: Canada Law Book Inc., 1998, paras. 3.1250, 3.1330. See generally Delisle and Stuart, Learning Canadian Criminal Procedure, 2nd ed., Carswell, 1991, pp. 57-92.
[316] 
Maingot, 2nd ed., p. 217.
[317] 
See also Maingot, 2nd ed., pp. 217-70.
[318] 
Standing Order 48(1).
[319] 
This is based on recommendations in the Second Report of the Standing Committee on Procedure and Organization, presented on March 14, 1975, and concurred in by the House on March 24, 1975. See Journals, March 14, 1975, pp. 372-6; March 24, 1975, p. 399; April 14, 1975, p. 441. See also Debates, April 19, 1983, pp. 24624-6; December 20, 1983, p. 355. See also Chapter 11, “Questions”.
[320] 
Debates, December 17, 1990, p. 16830.
[321] 
Debates, April 30, 1964, pp. 2799-802; November 25, 1985, p. 8795. See also Chapter 11, “Questions”.
[322] 
Debates, April 12, 1962, p. 2909.
[323] 
See Speaker Parent’s ruling, Debates, December 7, 1995, p. 17392.
[324] 
For example, Jesse Flis (Parkdale–High Park) raised a question of privilege concerning the behaviour of Ian Waddell (Port Moody–Coquitlam) who interfered with the Mace upon the adjournment of the House on October 30, 1991. At the next meeting of the House on October 31, 1991, the Speaker recognized Mr. Flis on a question of privilege immediately following Prayers. See Debates, October 30, 1991, pp. 4269-70; October 31, 1991, p. 4271.
[325] 
See, for example, Debates, March 22, 1971, p. 4451; March 7, 1972, p. 591; April 27, 1972, p. 1675; December 17, 1990, p. 16830.
[326] 
See, for example, Debates, March 10, 1966, p. 2477; February 18, 1982, p. 15144; March 18, 1982, p. 15557; May 12, 1982, p. 17338; May 19, 1982, p. 17596; October 31, 1986, pp. 955-6; March 2, 1995, p. 10273; December 7, 1995, p. 17392.
[327] 
See, for example, Debates, May 20, 1982, p. 17643.
[328] 
See Speakers’ comments, Debates, April 4, 1973, p. 2947; February 18, 1982, p. 15144; May 20, 1982, p. 17643.
[329] 
See, for example, Debates, February 17, 1999, pp. 12011-2.
[330] 
May, 15th ed., p. 365. See, for example, Speakers’ rulings rejecting questions of privilege because they were not raised at the earliest opportunity: Debates, May 10, 1966, pp. 4923-4; October 12, 1966, pp. 8553-5; November 28, 1967, pp. 4773-4; June 9, 1969, pp. 9899-900; September 27, 1971, p. 8174. In 1983, Speaker Sauvé did allow a Member (Bill Domm (Peterborough)) to raise a question of privilege, even though the Member could have raised the matter earlier (see Debates, October 4, 1983, pp. 27726-7; October 12, 1983, pp. 27944-5).
[331] 
See, for example, Debates, February 15, 1985, pp. 2398-9; April 23, 1990, pp. 10528-30; October 12, 1990, pp. 14106-10; October 15, 1990, pp. 14148-9; October 18, 1990, pp. 14367-8; February 24, 1993, pp. 16393-4; September 30, 1997, pp. 293-5; February 1, 1999, p. 11174; April 26, 1999, pp. 14326-7.
[332] 
See, for example, the questions of privilege raised by John Reynolds (West Vancouver–Sunshine Coast), Jim Pankiw (Saskatoon–Humboldt), Garry Breitkreuz (Yorkton–Melville) and Roy Bailey (Souris–Moose Mountain) concerning picket lines blocking access to Parliament Hill and entrances to certain buildings on February 17, 1999 (Debates, pp. 12009-12).
[333] 
See, for example, Debates, March 9, 1972, p. 661; February 1, 1973, p. 850.
[334] 
See, for example, Debates, February 17, 1999, pp. 12009-10; April 26, 1999, pp. 14326-7.
[335] 
Debates, March 31, 1981, pp. 8800-6.
[336] 
See, for example, Debates, February 7, 1990, p. 7953; March 12, 1996, pp. 561-2.
[337] 
See, for example, Debates, May 23, 1989, pp. 2051-2; September 24, 1990, pp. 13216-7; June 13, 1991, pp. 1644-6; December 8, 1992, pp. 14807-8; June 10, 1994, pp. 5160-1; November 16, 1998, pp. 10020-1.
[338] 
See, for example, the questions of privilege raised by Jag Bhaduria (Markham–Whitchurch–Stouffville) on February 15, 1994 (Debates, pp. 1387-8); February 23, 1994 (withdrawn by the Member, Debates, p. 1728); and March 23, 1994 (reintroduced by Mr. Bhaduria, Debates, p. 2677); and the Speaker’s ruling on March 24, 1994 (Debates, pp. 2705-6). See also the questions of privilege raised by Judy Wasylycia–Leis (Winnipeg North Centre) on October 1, 1997 (Debates, pp. 336-7, and the Speaker’s ruling on October 9, 1997, Debates, pp. 689-90); and on November 25, 1997 (Debates, pp. 2190-1, and the Speaker’s ruling on December 4, 1997, Debates, pp. 2695-6).
[339] 
“Until the motion is actually put to the House, the House is not seized of it, and therefore, the Member may amend or withdraw his proposed motion without the consent of the House” (Maingot, 2nd ed., p. 261).
[340] 
In the Allan Lawrence (Northumberland–Durham) case in December 1978, there was a difference between the first motion proposed and the one actually moved in the House (see Debates, November 3, 1978, p. 780; December 6, 1978, p. 1857). In October 1990, Albert Cooper (Peace River) proposed to move a motion which implicated another Member in a demonstration in the public gallery of the House. When Speaker Fraser ruled on the matter some days later, he stated that because the accused Member had denied any advance knowledge of the demonstration, the Chair could not find a question of privilege in that respect. However, the Speaker allowed that, without the reference to the Member, the matter of the demonstration would be a prima facie question of privilege. Mr. Cooper changed his motion which was then adopted by the House. See Debates, October 18, 1990, p. 14360; November 6, 1990, pp. 15177-81.
[341] 
In the Jim Pankiw (Saskatoon–Humboldt) case in February 1999, concerning the obstruction of Members by picket lines blocking the entrances to parliamentary buildings, the motion proposed by Mr. Pankiw, following Speaker Parent’s ruling that there was a prima facie question of privilege, differed substantially from what the Member had raised in his submission. With the Speaker’s assistance, Mr. Pankiw rephrased the motion which was then moved and adopted by the House. See Debates, February 17, 1999, pp. 12011-2.
[342] 
Debates, April 19, 1977, p. 4766. See also Maingot, 2nd ed., pp. 260-1. For examples of the wording of some privilege motions, see Maingot, 2nd ed., pp. 261-2.
[343] 
In March 1966 during the Munsinger affair, having ruled that Douglas Harkness (Calgary North) did have a prima facie question of privilege, Speaker Lamoureux ruled out of order the motion proposed by the Member condemning the behaviour of the Minister of Justice. Other motions proposed by other Members were also ruled out of order because they were couched in terms which were too general or because they were substantive motions requiring notice. Speaker Lamoureux more than once pointed out that it was Canadian practice to refer such matters to committee for study and suggested that this should be the avenue pursued. It was not, however, and no motions were put to the House. See Journals, March 10 to March 15, 1966, pp. 267-93. See also Maingot, 2nd ed., p. 263.
[344] 
Standing Order 43.
[345] 
Standing Order 20.
[346] 
Debates, May 25, 1956, p. 4348.
[347] 
See Debates, May 17, 1894, cols. 2931-3; July 22, 1903, cols. 7095-103; March 6, 1911, cols. 4645-56; May 22, 1924, pp. 2401-7. In 1996, Jean-Marc Jacob (Charlesbourg) was present in the House during debate on the motion concerning his behaviour. He voted on a motion to adjourn the debate (see Division List No. 7, Debates, March 12, 1996, pp. 566-7), made a comment recorded in Hansard (Debates, March 13, 1996, p. 673) and voted on the motion that the debate not be further adjourned (see Division List No. 10, Debates, March 14, 1996, pp. 680-1).
[348] 
See, for example, Debates, March 13, 1996, pp. 635-48, 674-8; March 14, 1996, pp. 679-80, 703-16; March 10, 1998, pp. 4591-4.
[349] 
During the proceedings on the Jacob case on March 13, 1996, Jim Hart (Okanagan–Similkameen–Merritt) challenged the acceptability of an amendment stating that it was “trying to completely gut the spirit of the motion”. The Speaker ruled the amendment procedurally in order (Debates, March 13, 1996, p. 649).
[350] 
See, for example, Debates, March 12, 1996, pp. 566-7.
[351] 
See, for example, Debates, March 13, 1996, p. 666; March 14, 1996, pp. 680-1.
[352] 
See, for example, Order Paper and Notice Paper, March 13, 1996, p. 9; March 10, 1998, p. 13.
[353] 
See, for example, Journals, October 24, 1966, pp. 915-6; March 21, 1978, pp. 525-6; December 7, 1978, pp. 228-9; February 20, 1984, pp. 188-9.
[354] 
For the House to give penal powers to committees would be an extension of the privileges of the House requiring legislation. See United Kingdom, House of Commons, Select Committee on Procedure, 1977-78, First Report, Vol. I, Appendix C, “Powers of Select Committees to Send for Persons, Papers and Records (PPR)”, Memorandum by the Clerk of the House, p. 26, para. 55.
[355] 
See, for example, Debates, June 30, 1987, p. 7822; December 9, 1987, p. 11628; April 2, 1990, pp. 10074-6; November 28, 1990, pp. 15854-5; June 19, 1991, p. 2070; November 7, 1991, pp. 4772-3; May 18, 1995, p. 12760; September 16, 1996, pp. 4233-4; December 9, 1997, p. 2945.
[356] 
See, for example, Journals, April 26, 1878, pp. 218-20; August 27, 1891, p. 454; September 1, 1891, p. 467; September 24, 1891, p. 532; June 7, 1894, p. 242; June 11, 1894, p. 288; June 13, 1894, pp. 298-300; November 22, 1990, pp. 2280-1.
[357] 
See, for example, Journals, August 12, 1891, p. 402; August 13, 1891, p. 407; August 18, 1891, p. 414; August 19, 1891, p. 417; September 29, 1891, p. 561; May 30, 1906, p. 316; June 1, 1906, p. 323; June 4, 1906, pp. 331-3; July 3, 1906, pp. 475-6; March 27, 1907, p. 371; April 4, 1907, pp. 388-9; February 14, 1913, p. 249; February 17, 1913, p. 254; February 18, 1913, pp. 266-7; February 20, 1913, pp. 274-8.
[358] 
See, for example, Journals, June 5, 1891, p. 205; June 16, 1891, pp. 211-2; December 19, 1990, p. 2508; February 28, 1991, p. 2638; May 17, 1991, p. 42; May 29, 1991, pp. 92-9.
[359] 
See, for example, Journals, May 1, 1868, pp. 267-8; May 2, 1868, p. 271; May 10, 1873, pp. 317-8; May 12, 1873, pp. 327-8.
[360] 
See, for example, Journals, April 28, 1987, p. 791; May 14, 1987, p. 917; December 18, 1987, pp. 2014-6.
[361] 
See Chapter 20, “Committees”. See also Maingot, 2nd ed., pp. 221-2.
[362] 
In the 1987 case involving John Parry (Kenora–Rainy River), the Standing Committee on Aboriginal Affairs and Northern Development met in camera to deal with the matter as noted in its Third Report to the House. See Standing Committee on Aboriginal Affairs and Northern Development, Third Report, Minutes of Proceedings and Evidence, April 28, 1987, Issue No. 25, p. 3. See also Journals, April 28, 1987, p. 791.
[363] 
The Third Report of the Standing Committee on Aboriginal Affairs and Northern Development, concerning the disclosure of in camera proceedings of the Committee, presented to the House on April 28, 1987, serves as an excellent model of such a report. Having described the events, the Report concluded: “Your Committee feels it is their duty to place these matters before you at this time since privilege may be involved and to give the House an opportunity to reflect on these matters.” See Standing Committee on Aboriginal Affairs and Northern Development, Third Report, Minutes of Proceedings and Evidence, April 28, 1987, Issue No. 25, p. 3. See also Journals, April 28, p. 791.
[364] 
See Speaker Fraser’s ruling, Debates, May 14, 1987, p. 6108.
[365] 
Standing Order 48(2). On April 28, 1987, the Standing Committee on Aboriginal Affairs and Northern Development presented its Third Report, relating to the disclosure of in camera proceedings, to the House during Routine Proceedings. The question of privilege based on that report was raised the same day immediately after Question Period. See Debates, April 28, 1987, pp. 5299, 5329.
[366] 
Debates, May 14, 1987, p. 6110.
[367]
See above for the procedure for dealing with questions of privilege in the House.
[368]
See Chapter 10, “The Daily Program” for the procedures for concurring in committee reports.
[369]
For a description of the functioning of a Committee of the Whole, see Chapter 19, “Committees of the Whole House”.
[370] 
See, for example, Debates, April 30, 1964, p. 2782; October 29, 1964, pp. 9561-2; June 2, 1966, pp. 5908-9.
[371] 
An example of such a situation occurred on April 30, 1964. In a Committee of the Whole, Lawrence Kindt (Macleod) rose on a question of privilege which, he stated, affected every Member of the House. The question of privilege concerned remarks made by the Minister of Transport (Walter Pickersgill) outside the House which the Member claimed should have been made in the House. The Chairman of the Committee of the Whole pointed out that the Member could only raise such a question of privilege when the Speaker was in the Chair. Another Member, Erik Nielsen (Yukon), then moved that the Committee rise and report progress and seek leave to sit again in order that Mr. Kindt might raise his question of privilege. The Committee adopted the motion, the Chairman rose, reported progress, and Mr. Kindt presented his question of privilege. The Deputy Speaker ruled that the matter was not a prima facie question of privilege and the House then went back into a Committee of the Whole. See Debates, April 30, 1964, pp. 2782-3.
[372] 
See, for example, Debates, November 23, 1970, p. 1373; November 8, 1971, p. 9435; October 23, 1974, p. 665; May 22, 1975, pp. 6012-3; December 20, 1983, pp. 379-90.
[373] 
Standing Order 12. See also Chapter 19, “Committees of the Whole House”.
[374] 
A question of privilege was raised in a Committee of the Whole in 1987 by John Nunziata (York South–Weston) who rose to complain that a Member had assaulted him because he was not in his own seat. He requested an apology, but the Member refused. Although the Chairman advised that he would report on the matter to the full House, only the bill under consideration in the Committee was reported later that day (Journals, October 15, 1987, pp. 1688-9). The following day, Mr. Nunziata raised his question of privilege in the House. The Member about whom Mr. Nunziata had complained rose in the House and apologized to Mr. Nunziata and to the House, and the Speaker declared the matter closed (Debates, October 15, 1987, p. 10064; October 16, 1987, pp. 10089-90).
[375] 
Although from a Standing Committee, the Third Report of the Standing Committee on Aboriginal Affairs and Northern Development, presented to the House on April 28, 1987, can serve as a model for a report on a privilege matter. Having described the events, the Report concluded: “Your Committee feels it is their duty to place these matters before you at this time since privilege may be involved and to give the House the opportunity to reflect on these matters” (Standing Committee on Aboriginal Affairs and Northern Development, Third Report, Minutes of Proceedings and Evidence, April 28, 1987, Issue No. 25, p. 3). See also Journals, April 28, 1987, p. 791.
[376]
See above for the procedure for dealing with questions of privilege in the House.
[377] 
See Debates, June 12, 1980, pp. 2030-1; December 20, 1983, pp. 364-9. In the 1983 instance, a Member argued that because the Committee had risen and reported progress, the House was apprised of the circumstances surrounding the question of privilege. The Speaker ruled that the Committee had only risen, reported progress and asked for leave to sit again. The Committee had not reported the bill nor any concerns to the House.
[378] 
Standing Orders 48(2), 54 and 56(1).
[379] 
Standing Orders 48(2), 86(2) and 87.
[380] 
Standing Order 48(2).
[381] 
Journals, April 15, 1874, p. 64. See also Bourinot, 4th ed., pp. 304-5.
[382] 
Debates, April 5, 1886, p. 488.
[383] 
Debates, March 18, 1892, cols. 245-9; March 21, 1892, cols. 287-9; April 6, 1892, cols. 1032-5.
[384] 
See, for example, Debates, April 25, 1877, p. 1810; May 11, 1891, cols. 156-7.
[385] 
Debates, March 3, 1911, cols. 4566-7.
[386] 
Debates, February 8, 1932, p. 8.
[387] 
See, for example, Debates, May 22, 1924, p. 2401.
[388] 
Debates, June 16, 1959, p. 4761.
[389] 
Journals, June 19, 1959, pp. 581-6.
[390] 
See Order Paper and Notice Paper, February 28, 1996, p. VI. Mr. Boudria’s motion was designated Private Members’ Notice of Motion M-1.
[391] 
Debates, May 9, 1996, pp. 2523-4.
[392] 
Debates, June 18, 1996, p. 4028.
[393] 
Debates, June 18, 1996, p. 4028.
[394] 
Debates, June 18, 1996, pp. 4029-31.
[395] 
Debates, June 20, 1996, pp. 4183-4.
[396] 
Debates, October 23, 1996, p. 5630. See also Journals, October 23, 1996, p. 768.
[397] 
See Maingot, 2nd ed., pp. 267-9.
[398] 
See, for example, Standing Committee on Elections, Privileges and Procedure, Seventh Report, presented to the House on December 18, 1987, Journals, pp. 2014-6; Standing Committee on Privileges and Elections, Twenty-Fourth Report, Minutes of Proceedings and Evidence, March 7, 1991, Issue No. 39, pp. 3-8; Standing Committee on House Management, Sixty-Fifth Report, Minutes of Proceedings and Evidence, February 18, 1993, Issue No. 46, pp. 7-11.
[399] 
See, for example, Standing Committee on Procedure and House Affairs, Twenty-Second Report, Minutes of Proceedings, June 18, 1996, Issue No. 1, pp. 46-55; Standing Committee on Procedure and House Affairs, Twenty-Ninth Report, presented to the House on April 27, 1998, Journals, p. 706.
[400] 
See, for example, Standing Committee on Privileges and Elections, Twenty-Fourth Report, Minutes of Proceedings and Evidence, March 7, 1991, Issue No. 39, pp. 3-8. In the case involving John Parry (Kenora–Rainy River), following the presentation of the Seventh Report of the Standing Committee on Elections, Privileges and Procedure on December 18, 1987, which criticized the Member but called for no punishment, Mr. Parry rose in the House and apologized for his actions (see Debates, December 18, 1987, p. 11951).
[401] 
See, for example, Standing Committee on House Management, Sixty-Fifth Report, Minutes of Proceedings and Evidence, February 18, 1993, Issue No. 46, pp. 7-11, which recommended that the Speaker write a letter to the CBC and a named individual advising them of the content of the report; Standing Committee on Procedure and House Affairs, Sixty-Sixth Report, presented to the House on April 14, 1999, Journals, p. 1714, Sessional Paper No. 8510-361-152, which suggested improvements for handling demonstrations around the parliamentary precinct and other parliamentary buildings (see especially paras. 16-23).
[402] 
See, for example, the motion for concurrence in the Sixty-Fifth Report of the Standing Committee on House Management, adopted on February 25, 1993 (Debates, p. 16440); the motion for concurrence in the Twenty-Second Report of the Standing Committee on Procedure and House Affairs, debated in the House on June 20, 1996, superseded by a motion to adjourn the debate and transferred to Government Business on the Order Paper (see Journals, pp. 592-3); the motion for concurrence in the Twenty-Ninth Report of the Standing Committee on Procedure and House Affairs, adopted on a recorded division (see Journals, May 5, 1998, pp. 744-5). See also Journals, April 29, 1998, p. 722.
[403]
See also Chapter 13, “Rules of Order and Decorum”.
[404] 
Debates, November 21, 1990, p. 15526.
[405] 
In 1996, Speaker Parent advised the House that Jean-Marc Jacob (Charlesbourg) would be rising to make a solemn declaration to the House. The Speaker cautioned Members that the statement was not to incite debate. The Speaker subsequently interrupted Mr. Jacob and ruled that “the words being used [in the statement] tend more toward a debate than a solemn declaration”. The Member was not allowed to continue (see Debates, June 18, 1996, p. 4027). See also Debates, May 11, 1989, pp. 1571-3, when a Minister rose on a matter of personal privilege to clarify a statement he had made the previous day. Following the statement of the Minister, the Speaker recognized the critic from the Official Opposition to respond to the statement. However, when the Minister began to engage in a debate with the opposition Member, the Speaker closed off the remarks and advised the House that Members could seek further information from the Minister on another occasion.
[406] 
Debates, March 17, 1997, p. 9060.
[407] 
See, for example, Debates, June 13, 1977, pp. 6584-5; October 8, 1987, p. 9827; June 18, 1996, p. 4027.
[408] 
See, for example, Debates, May 11, 1989, pp. 1571-3.
[409] 
See Debates, December 18, 1987, pp. 11950-1; March 19, 1991, p. 18710; October 9, 1991, pp. 3515-6; January 24, 1994, p. 197; October 31, 1996, pp. 5948-9; April 28, 1999, p. 14448.
[410] 
See, for example, Debates, November 26, 1992, pp. 14113-5.
[411] 
See, for example, Debates, November 21, 1990, pp. 15526-8; March 17, 1997, pp. 9059-60.
[412] 
See, for example, Debates, March 15, 1984, pp. 2138-9; May 12, 1986, p. 13149; February 3, 1988, p. 12581.
[413] 
See Debates, January 26, 1990, p. 7495; December 12, 1990, pp. 16635-6; May 27, 1991, p. 610.

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As the rules and practices of the House of Commons are subject to change, users should remember that this edition of Procedure and Practice was published in January 2000. Standing Order changes adopted since then, as well as other changes in practice, are not reflected in the text. The Appendices to the book, however, have been updated and now include information up to the end of the 38th Parliament in November 2005.

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