The privilege of freedom of speech in parliamentary debates or proceedings is generally regarded as the most important of the privileges enjoyed by Members of Parliament and witnesses who appear before parliamentary committees.
The right of parliamentarians to freedom of speech is protected by the Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.) and the Parliament of Canada Act. Section 4 of the Parliament of Canada Act confirms that the Senate and the House of Commons each enjoy all of the privileges of the British House of Commons at the time of Confederation. These include the parliamentary freedom of speech guaranteed by Article 9 of the English Bill of Rights of 1689.
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 or civil liability for any comment they might make. In order to encourage truthful and complete disclosure without fear of reprisal or other adverse actions as a result of their testimony, this right is also extended to individuals who appear before the House or its committees. Members are able to make statements or allegations about outside groups or people, which they may hesitate to make without the protection of privilege. Though sometimes criticized, the freedom to make allegations that the Member genuinely believes at the time to be true, or at least worthy of investigation, is fundamental to the privileges of all Members. The House of Commons could not work effectively unless its Members, and witnesses appearing before House committees, were able to speak and criticize without being held to account by any outside body.
Although the parliamentary privilege of freedom of speech applies to a Member’s speech in the House of Commons and in other formal proceedings of the House, including committee meetings, it may not fully apply to reports of proceedings or debates published by newspapers or others outside Parliament. Privilege may not protect a Member republishing his or her own speech separately from the official record of the House of Commons or one of its committees. Comments made by a Member at a function as an elected representative—but outside of Parliament—would likely not be covered by this privilege, even if the Member were quoting from his or her own speech made in a parliamentary proceeding.
The privilege of freedom from arrest in civil actions stems from the requirement by the House of Commons that the attendance and service of its Members be treated as an absolute priority. The paramount importance of Parliament makes these the first priorities for its Members. As is the case in the United Kingdom, Members enjoy this privilege:
The privilege of freedom from arrest extends only to civil matters; it has never applied to Members of the House of Commons in respect of criminal charges, or to any matter that includes an element of criminality, such as criminal contempt of court. If Members are charged with infractions of the law, they must abide by the due process of law just as any other citizen must.
The House of Commons is not a sanctuary, and the criminal law applies as elsewhere in Canada. There is no immunity with respect to criminal acts committed within the parliamentary precinct, except within the very narrow limit of parliamentary privilege. However, outside police forces on official business shall not enter the precinct without first obtaining permission from the Speaker, whether the House is sitting or not. If any Member is arrested on criminal charges, or convicted of a criminal offence and sentenced to imprisonment, the House is usually informed through the Speaker.
Members of Parliament must be protected from influence or interference as they make laws and make decisions crucial to the nation. This protection is provided in part by the criminal law that, for example, specifically prohibits attempts at bribery and at interference with the electoral process. Even in circumstances in which the criminal law has had no application, Speakers have recognized claims by Members that they have been obstructed, impeded, interfered with or intimidated in the performance of their duties as prima facie cases of privilege.
The application of this privilege extends beyond parliamentary proceedings in the Chamber and in committees. This protection is also recognized as extending to Members’ staff and to the staff of the House of Commons while they assist the Members in the discharge of their duties, and even to witnesses before parliamentary committees.
Any physical barrier preventing Members’ access to the parliamentary precinct or blocking their free movement within it may be treated by the House as a breach of privilege. Questions of privilege have been raised in connection with traffic barriers, security cordons, and even union picket lines.
Speakers have recognized as obstruction, interference or intimidation such varied activities as the harming of a Member’s good name or reputation, and public criticisms of the neutrality of the Chair. In each case, the Speaker has had to determine whether the alleged breach of privilege relates directly to the Member’s ability to carry out his or her parliamentary functions
The exemption of Members of Parliament from compelled attendance at court is based on the principle that attendance of a Member in the House of Commons takes precedence over other obligations, and that the House has the paramount right and prior claim to the attendance and service of its Members. Individuals summoned to appear before the House or its committees also enjoy the privilege of not being summoned to appear in court at the same time.
The exemption from attending court as a witness applies in civil, criminal and military matters before the courts. However, it is regularly waived, particularly for criminal cases.
No Member may be served with a subpoena or any other legal process within the parliamentary precinct without the permission of the Speaker. A Member wishing to accept service of such a document may be encouraged to do so in a location outside of the precinct.
The duties of Members of Parliament and senior House officials are also understood as superseding any obligation on their part to serve as jurors. Since the courts have available to them a large body of potential jurors, it is generally agreed that the interests of the nation are best served by exempting parliamentarians from this civic duty.