House of Commons Procedure and Practice
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3. Privileges and Immunities

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[51]

O’Brien, pp. 195-6.

[52]

O’Brien, pp. 303-4, 377.

[53]

O’Brien, p. 379.

[54]

Maingot, 2^nd 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 The original section was repealed and substituted by the Parliament of Canada Act, 1875, 38-39 Vict., c. 38 (U.K.) (R.S.C. 1985, Appendix II, No. 13):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, 1^st ed., pp. 187-8.

[56]

R.S.C. 1985, c. P-1. Sections 4 and 5 read as follows:

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.
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, 3^rd 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, 4^th ed., pp. 94-6; May, 14^th 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, 2^nd 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, 2^nd 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, 22^nd ed., p. 65.

[88]

May, 22^nd ed., pp. 65, 108.

[89]

Odgers, 8^th 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, 4^th 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, 2^nd 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).