Privilege has long been an important element of our Constitution, safeguarded by both the courts and the common law. The concept of parliamentary privilege originated in England at a time when the English House of Commons enjoyed little protection from interference, intimidation and, at times, even physical force exerted by the King, his Ministers and the House of Lords.
Fortunately, the parliamentary privileges of the Canadian House of Commons were inherited without the need to overcome physical threats and challenges. At the federal level, parliamentary privileges find their roots in two parts of the Constitution Act, 1867. The Constitution allows the Senate and the House of Commons to pass laws defining their privileges, so long as the privileges claimed are no greater than those that existed at Confederation. The Parliament of Canada Act contains a provision claiming all such privileges. The House of Commons claims these privileges in order to carry out its functions without interference from the courts or the executive.
Parliamentary privilege does not, as is sometimes thought, give special benefits or entitlements to Members of the House of Commons; indeed, privilege extends to any person engaged in a proceeding of Parliament. Parliamentary privilege refers to the rights and immunities that are considered essential for the House of Commons, as an institution, and its Members, as representatives of the electorate, to fulfill their functions.
It also refers to the powers possessed by the House to protect itself, its Members, witnesses and its procedures from interference by the courts or the executive, so that it can effectively carry out its principal functions of inquiring, debating, legislating and holding the Government to account. For example, nothing said in the Chamber may lead to prosecution or litigation in any court; neither Members of the House of Commons nor witnesses can be sued for slander on the basis of statements made in the House or in committee. The content of debate can be limited only by the House itself, as the House has complete control of its own proceedings.
The rights and immunities usually associated with parliamentary privilege include the following:
The House of Commons is the protector of its own privileges, and it has the authority to punish those who breach its privileges or are in contempt of Parliament.
It is important to distinguish between a “breach of privilege” and “contempt of Parliament”. There are many actions or omissions that, although they may not constitute a breach of a specific privilege, are nevertheless offences against the authority or the dignity of the House of Commons. The persons involved in such actions or omissions may be found to be in contempt of the House. The following are examples of actions that could lead to a finding of contempt:
The rights and immunities of individual Members of the House of Commons are traditionally viewed and treated as subordinate to those of the House as a whole. Thus, the House may assert its privilege by overriding that of an individual Member.
All Members, individually and collectively, have a duty to avoid any obligation (e.g., testifying in a court) from which parliamentary privilege exempts them. They must also avoid any abuse of their rights and immunities (e.g., by making defamatory remarks about another Member) that might offend the dignity of Parliament as an institution.