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Parliament functioned more as a court than as a legislature, and the initial claims to some of these privileges were originally made in this context.17 These privileges were found to be necessary to protect the House and its Members, not from the people, but from the power and interference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 general public law of the land.18
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 made applicable to the Canadian Parliament at the time of Confederation by the Constitution Act, 1867, and were articulated in a statute now known as the Parliament of Canada Act.19 Nonetheless, the privileges enjoyed by the House and its Members are part of the Constitution and therefore 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 English House of Commons began its struggle to win its basic rights and immunities from the King.20 The earliest cases go back to the 14th and 15th centuries when several Members and Speakers were imprisoned by the King who took offence to 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. Elected Speaker of the House of Commons in 1523, Sir Thomas More was among the first Speakers to petition the King to seek the recognition of certain privileges for the House.21 By the end of the 16th century, the Speaker’s petition to the King had become a fixed practice.22
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:
[E]very 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.23
In rebuke, James I ordered that the Journals of the House be sent to him; he tore out the offending page of protest and then summarily dissolved Parliament.24
Nor was privilege able to prevent the detention or arrest of Members at the order of the Crown. On several occasions in the early 17th 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, judgments were rendered against several Members for sedition. These outrages by the Crown were denounced after the Civil War and, in 1667, both Houses agreed that the judgment against the arrested Members had been illegal and contrary to the privileges of Parliament.25
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”.26 Free speech and proceedings in the House was now finally established and protected from interference either from the Crown or the courts.
In the late 17th century and the first half of the 18th 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 had become a serious obstruction to the ordinary course of justice.27 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.28 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.29
The 19th century witnessed numerous cases of privilege, which helped to determine the bounds between the rights of Parliament and the responsibility of the courts.30 Perhaps the most famous of the court cases was Stockdale v 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.31 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 because it had not been proven that the claimed privilege existed:
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’.32
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.
The late 18th and 19th centuries also saw, for the first time, the systematic study of the history of privilege and contempt with the publication of several manuals on parliamentary procedures.33 The culmination of these efforts to understand and elucidate better the constitutional history of Parliament was achieved in 1946 with the publication of the 14th edition of May.34 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.35 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 it once did, with the emphasis being placed on parliamentary proceedings. The change became apparent in 1967 when the Select Committee on Parliamentary Privilege accepted the need for the radical reform of the law, practice and procedure relating to privilege and especially contempt, agreeing that they required simplification and clarification 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”.36 While the House took note of the Committee’s report, it was never concurred in. In 1977, the Committee of Privileges re-examined the meaning of privilege and contempt, and the general thrust and conclusions of the 1967 report were reiterated in its report, later concurred in by the House. The Committee recommended that the application of privilege be limited to cases of clear necessity in order to protect the House, its Members and its officers from being obstructed or interfered with in the performance of their functions.37 Twenty years later, a joint committee of the British Parliament was charged with examining parliamentary privilege. The Joint Committee on Parliamentary Privilege made a number of recommendations calling for the codification of various matters of privilege in statutory law.38 Although the report was debated in the Commons on one occasion, it was never adopted and no legislation has yet resulted from the recommendations.39
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. As Maingot notes: “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”.40 As to the power of an assembly in the colonies to punish and specifically imprison for contempt, the situation was not at all clear.41 In effect, the rights enjoyed by the legislative assemblies in the pre-Confederation period were quite limited.42 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.43
In Upper and Lower Canada, The Constitutional Act, 1791,44 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”.45 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.46 In the period prior to responsible government, the Assembly in Upper Canada guarded its reputation by punishing libels against it in the newspapers. It also fought for the right to initiate money bills; that is, bills for appropriations and taxation.47 In general, the Assembly of Upper Canada was satisfied that it could discharge its functions with the privileges it had.48
In the same period, the Assembly of Lower Canada also asserted both individual and collective 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.49 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.50
With The Union Act, 1840,51 which created the Province of Canada out of Upper and Lower Canada, and especially following the achievement of responsible government, issues of privilege were raised less frequently and were not as 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 imprison for contempt claimed by the Assembly of the Province of Canada remained an issue. It was held in 1842 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 to prison for contempt even when committed in the assembly.54
Privilege Since Confederation
The privileges of the British House of Commons were made applicable to Canada by the Constitution Act, 1867. The preamble of that Act, which states that Canada has a “Constitution similar in Principle to that of the United Kingdom”, entrenched a Westminster-style parliamentary system, including the historical privileges necessary for such a system to function. As well, section 18 of the Act granted the Parliament of Canada the right to define its privileges by statute as long as these privileges never exceeded those enjoyed by the British House of Commons at the time of Confederation:
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
Within three weeks of the opening of the First Session of the First Parliament, the Senate and the House passed An Act to define the privileges, immunities and powers of the Senate and the House of Commons, and to give summary protection to persons employed in the publication of Parliamentary Papers,56 which claimed for the Parliament of Canada the privileges, immunities and powers of the British House of Commons. This statute also provided that parliamentary papers were protected by privilege and protected publishers of the authorized parliamentary papers and records against civil or criminal suits.57
In 1868, Parliament adopted legislation granting the Senate the power to examine witnesses at the Bar on oath and to allow the select committees on private bills of both Houses to examine witnesses on oath.58 In 1873, the power to examine witnesses on oath was extended to all House and Senate committees.59 These two pieces of legislation led to debate in the Senate as to whether they were contrary to the terms of section 18 of the Constitution Act because the British Parliament acquired the right to examine witnesses on oath only in 1871. It is speculated that the 1868 statute was inadvertently granted Royal Assent; however, in the case of the second bill, when Prime Minister Sir John A. Macdonald expressed his misgivings, the Oaths Act, 1873 was disallowed by the Crown who reported that the bill was ultra vires.60 Subsequently, at the request of the Canadian government, section 18 of the Constitution Act, 1867 was repealed and replaced with the following:
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.61
This amended section provided that the Canadian Parliament may adopt legislation claiming new privileges as long as these privileges are also held by the British House of Commons.
In the early years of Confederation, most of the matters raised in the House with respect to privilege concerned: the right of a Member to a seat in the House;62 the interference of officials in elections;63 the independence of Parliament;64 the abuse of a Member’s position for monetary gain;65 and reflections or libels in books and newspapers about the House or its Members.66 After Parliament adopted electoral legislation dealing with such matters as dual representation, controverted elections, and corrupt electoral practices, the number of such motions declined.67
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 be called 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.68 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 in fact 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.69 Here, too, they met with little interference from Chair Occupants.70
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,71 the number of legitimate matters of privilege dealt with by the House declined dramatically with only three being referred to the Standing Committee on Privileges and Elections and one to a special committee.72 Modern practice in matters of privilege first took root following the publication of the fourth edition of Beauchesne’s Rules and Forms of the House of Commons of Canada in 1958 which included a new section, taken from the 14th edition of May, published in 1946, on the manner of raising questions of privilege.73 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.74 Nonetheless, on occasion, the House adopted motions on matters of privilege without a ruling of the Speaker.75
The new citation in Beauchesne enabled successive Speakers to keep 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.76 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 Speaker Michener 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,77 a ruling frequently cited in subsequent years.78 In 1964, Deputy Speaker Lamoureux ruled that questions of privilege could not be raised during proceedings on the adjournment motion79 and, in 1975, the House concurred in a report which recommended that such matters should not be taken up during Question Period.80 Divisions were also judged an inopportune time for raising questions of privilege on matters not related to the business then before the House.81 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.82
Since 1958, there have been multiple prima facie cases of privilege. Matters found to be prima facie include the inability of Members to access the Parliamentary Precinct, the disclosure of in camera committee proceedings and draft reports, the production of documents, the intimidation of Members, the right of Members to sit and vote in the House, and allegations of Members deliberately misleading the House. These cases are discussed in greater detail later in this chapter (see also Appendix 13, “Prima Facie Cases of Privilege Since 1958”, of this volume).
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 when the Special Committee on Rights and Immunities of Members was created under the chairmanship of Speaker James Jerome. The Special Committee presented two reports, one on privilege in the First Session83 and the other on the sub judice (before the court) convention in the Second Session.84 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 on Parliamentary Privilege, 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 Committee 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 frequently meet outside of Ottawa) and “proceedings in Parliament”. In addition, it 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 focused on the sub judice convention.85
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 of the Thirty-Fourth Parliament.86 While the Committee did consider the matter,87 no report was presented to 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 the authority, responsibilities and jurisdiction of the Board of Internal Economy.88 While this Special Committee focused 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.89 In its Second Report, the 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”.90 The 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”.91
In 2004, the Standing Committee on Procedure and House Affairs received an order of reference, arising out of a prima facie question of privilege, to consider the question of the immunity of Members of the House from being compelled to attend court during, immediately before and immediately after a session of Parliament.92 In its Eighth Report to the House, the Committee recommended that the House of Commons consider the appointment of a committee to undertake a comprehensive review of parliamentary privilege:
The time is perhaps appropriate for the Canadian Parliament to undertake a systematic review of its privileges and those of its members. Not only has such a review not been conducted in many years, but the introduction of the Canadian Charter of Rights and Freedoms and parliamentary developments, such as the broadcasting of proceedings, have inexorably affected the environment within which we operate.93
The Thirty-Seventh Parliament was dissolved before the Report was concurred in. No comprehensive reviews of the rights and immunities of Members of Parliament have taken place in the House in subsequent Parliaments.