Rights of the House as a Collectivity
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, to require the attendance of witnesses, and to order the production of documents. The Parliament of Canada Act260 confers the right to administer oaths to witnesses.
The rights and powers of the House as a collectivity may be categorized as follows:
- the regulation of its own internal affairs;
- the authority to maintain the attendance and service of its Members;
- the power to discipline;
- the right to institute inquiries and to call witnesses and demand papers;
- the right to administer oaths to witnesses appearing before it; and
- the right to publish papers without recourse to the courts relating to the content.
The two most dominant rights or powers are the right of the House to regulate its own internal affairs and the power to discipline.
Regulation of Internal Affairs
The exclusive right of the House of Commons to regulate its own internal affairs refers to its control of its own debates, agenda and proceedings as they relate to its legislative and deliberative functions.261 This right was affirmed in 1993 in New Brunswick Broadcasting Co. v Nova Scotia (Speaker of the House of Assembly)262 and has since been reaffirmed in a number of important court decisions, including Canada (House of Commons) v Vaid in 2005, Knopf v Canada (House of Commons) in 2006, and Association des juristes de l’État c Québec (Procureur général) (Secrétariat du Conseil du Trésor) in 2009.263 Indeed, in the Vaid decision, the Supreme Court noted that the categories of privilege include:
… control by the Houses of Parliament over ‘debates or proceedings in Parliament’ (as guaranteed by the Bill of Rights of 1689) including day-to-day procedure in the House, for example the practice of the Ontario legislature to start the day’s sitting with the Lord’s Prayer… .264
The House of Commons can make and change its own rules and manage its internal affairs without outside interference. Its internal procedures and rules as contained in the Standing Orders, special orders or Speakers’ rulings are protected by parliamentary privilege and cannot be questioned by the courts or any place outside of Parliament.265 The House of Commons is free from judicial review of its decisions when these are made pursuant to a Standing Order, special order, sessional order or resolution. Recent attempts to review the actions and decisions of the House of Commons or its committees have been rejected by the courts. In 1999, the Ontario Court (General Division) dismissed an action brought against the House for a resolution it had adopted restricting an individual from the precincts of Parliament.266 In 2006, the Federal Court upheld the right of parliamentary committees to adopt and enforce their own internal procedures.267
In 2009, a statutory officer of the Newfoundland and Labrador House of Assembly applied for a declaration entitling her to a hearing before the legislature in the event that a resolution was tabled in the House of Assembly calling for her removal from office. The Supreme Court of Newfoundland and Labrador, Trial Division, dismissed the application on the grounds that it did not have the authority to give its opinion on how the House of Assembly should conduct its proceedings and its debates. The conduct of debate in a legislative chamber is protected by parliamentary privilege and is outside the jurisdiction and scrutiny of the Court.268
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.269 If the 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 right to regulate its own internal affairs does not mean that the House is above the law. However, where the application of statute law relates to a proceeding in Parliament or a matter covered by privilege, it is the House itself which decides how the law is to apply and the House’s decision cannot be reviewed in the courts.270
Right to Regulate and Administer Its Precinct
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”.271 It is well established that, by extension, the House has complete and sole authority to regulate and administer its precinct, without outside interference, including controlling access to the buildings.272
Process servers ordinarily may not enter the precinct in order to serve a subpoena or other legal process on anyone without the permission of the Speaker.273 This was most forcefully stated by Speaker Fraser in a ruling given in May 1989 involving the service of a subpoena and the rights of Members appearing as witnesses in court.274 Speaker Fraser asserted that, since the permission of the Speaker had not been sought nor obtained for the service of a subpoena on a Member, 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”.275
Police forces also may not enter the precinct to investigate the commission of an offence without permission from the Speaker. Cases have arisen where representatives of outside police forces have wanted to enter the Parliamentary Precinct for purposes of making an arrest, conducting an interrogation or executing a search warrant within the terms of the Criminal Code. 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.
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.276 It is not the Parliamentary Precinct but the function being carried out which is protected.277 A Member cannot be arrested within the Parliament Buildings without the permission of the House, but can be arrested on the grounds surrounding the buildings, as suggests the 1965 case of Gilles Grégoire (Lapointe) who was arrested for non-payment of traffic fines.278
The Execution of Search Warrants in the Precinct of Parliament
The Speaker 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 not only that the corporate privilege of the House to administer its affairs within the precinct is not infringed, but also that the privileges of individual Members to participate freely in the proceedings are not compromised. At the same time, the Speaker must be careful not to be seen as obstructing the administration of 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, in the end, would 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.
A 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 searching a particular Member’s office within the Parliamentary Precinct in order for the Speaker to be satisfied that the search is lawful. The Member concerned also has a right to a copy of the search warrant.
This authority to grant or deny permission was established in two separate incidents which occurred in the 1970s. The first case occurred in 1973 when the parliamentary office of Flora MacDonald (Kingston and the Islands) was visited by the Ottawa city police and the RCMP. The two police forces were inquiring about documents missing from the Department of Indian Affairs and had not 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 the Standing Committee on Privileges and Elections for study.279 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.280
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”.281 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.
In 1979, Terry Sargeant (Selkirk–Interlake) raised a question of privilege regarding an 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 his permission to search the office, Speaker Jerome found that there was no prima facie breach of privilege and indicated to the House that he had exercised his discretion to refuse permission for 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.282
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.
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”.283 As part of the recommendations included in its Third Report, which dealt exclusively with procedures surrounding the execution of search warrants within the Parliamentary Precinct, the Special Committee on the Review of the Parliament of Canada Act stated:
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 …284
By unanimously adopting the Special Committee’s Third Report,285 the House reaffirmed the following principles respecting the execution of search warrants:
- Well-established parliamentary tradition provides that search warrants may be executed within the Parliamentary Precinct only with the consent of the Speaker.
- 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.
- 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.286
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.287 Essentially, the Speaker’s role in reviewing a search warrant is restricted to an examination based on form and content and to ascertaining if the execution of the warrant could otherwise result in a breach of privilege.
The Authority to Maintain the Attendance and Service of its Members
This privilege is the underlying premise for the individual Member’s privileges of exemption from jury duty and exemption from being summoned to appear as a witness. Maingot notes: “… the Parliament of Canada has first call on the services of its Members and, except in the case of criminal matters or breaches of provincial statutes (quasi-criminal) … Parliament will not tolerate impediments to Members who are on their way to attend the sittings”.288
The Standing Orders of the House of Commons 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.289 Because the House sits during prime working hours, scheduling conflicts with other parliamentary or official commitments (for example, committee meetings) may prevent Members from being present in the Chamber. In practice, considerable leniency is exercised in this regard. Indeed, the Chair has often discouraged any references to the absence of any individual Member.290 As 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, it is rarely necessary for the House as a whole to take action in this regard.
Power to Discipline
Closely related to the right of the House to regulate its own internal affairs and its authority to maintain the attendance and service of its Members is the House’s right to discipline its own Members for misconduct and the power to punish anyone for interfering with the conduct of parliamentary business (which it considers to amount to a breach of privilege or contempt). While Article 9 of the Bill of Rights, 1689, gives both Members and “strangers”291 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.292 May notes that the power to punish for contempt probably originated in medieval times when the English Parliament was primarily a court of justice.293 This power affords the House a wide range of penalties for dealing with misconduct. Non-Members (“strangers”) may be removed from the galleries of the Chamber or from the Parliamentary Precinct,294 be given a reprimand, or, in theory, ultimately be incarcerated. Members may be called to order, directed to cease speaking because of persistent repetition and irrelevance in debate, “named”295 for disregarding the authority of the Chair and suspended from the service of the House, incarcerated, or even expelled. The disciplinary power of the House is regulated to some extent through the Standing Orders so that each case need not be raised formally in the House in order to be dealt with efficiently.296 For example, this disciplinary power allows the House, through its senior officials, to refuse entry to a stranger who, on previous occasions, has been guilty of misconduct in the public galleries or corridors.
In addition, the conduct of Members is regulated in part by the Conflict of Interest Code for Members of the House of Commons.297 For example, Members are required to disclose a private interest in a matter before the House or a committee and to refrain from participating in debate or voting on the question.298 If a Member has reasonable grounds to suspect that another Member has not complied with the Code, he or she may ask the Conflict of Interest and Ethics Commissioner to conduct an inquiry into the matter. The Commissioner submits a report on the results of the inquiry to the Speaker for tabling in the House. If the Commissioner concludes that the Member has deliberately contravened the conflict of interest guidelines set down in the Code, the Commissioner may recommend appropriate sanctions. The Member is then subject to the disciplinary powers of the House, if the House chooses to take action.299 Since the Conflict of Interest Code for Members of the House of Commons came into force at the beginning of the Thirty-Eighth Parliament, no sanctions have been imposed on Members found to have contravened it.
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.300 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. Historically, the House has had the right to reprimand and to imprison only until the end of the session and it did not have the power to impose fines.301 Parliament has been reluctant to use these powers and such cases have been rare. In the event of incarceration, the accused would remain imprisoned until he or she has complied with the order of the House or until the end of the session.
Censure, Reprimand and the Summoning of Individuals to the Bar of the House
Individuals may be summoned to appear at the Bar of the House for an offence against the dignity or authority of Parliament, if the House adopts a motion to that effect. When summoned, the individual stands at the Bar, a brass rod extending across the floor of the Chamber inside its south entrance beyond which strangers are not allowed. The House has ordered some Members to attend in their places in the House and has also summoned Members 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 appear at the Bar is an extraordinary event which places the Member or individual under the authority of the House vested with its full disciplinary powers.302
On a number of occasions in the late 19th and early 20th centuries, individuals were summoned to appear before the Bar of the House in order to answer to the authority of the House:
- 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 on three occasions. The House later 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.303
- 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 directed to withdraw.304
- 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 November 7, 1873, but he never appeared at the Bar as Parliament was prorogued on November 7.305
- 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 Red River Rebellion and the murder of Thomas Scott. He failed to attend and was later expelled from the House. Three witnesses (the Attorney General of Manitoba and two Ottawa police officers) were summoned to appear at the Bar in relation to the Riel matter. All three appeared and were questioned.306
- 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 directed 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 was read to him before he was discharged from further attendance.307
- 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.308
- 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.309
- 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.310
- In 1894, two witnesses (Jean Baptiste Provost and Omer Edouard 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.311
- In 1906, a Member complained about a newspaper article; it was read to the House by the Clerk and a motion was adopted summoning its author, Joseph Ernest Eugène Cinq-Mars, to appear before the Bar of the House. Mr. Cinq-Mars appeared and answered questions at two sittings of the House. The House then adopted a motion of censure against him, which was read to him before he was discharged.312
- 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 provide 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.313
No private citizen has been called to the Bar since 1913.314 However, in 1991 and again in 2002, Members were ordered to attend the Bar of the House. As sitting Members, these individuals could have received the admonishment at their assigned place, which would have been the normal practice.315
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 Ian Waddell (Port Moody–Coquitlam), frustrated at having missed a vote, had attempted to take hold of the Mace as it was being carried out of the Chamber. Speaker Fraser found a prima facie case of privilege, and the House adopted an order calling Mr. Waddell 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.316
In 2002, visibly unsastified with the outcome of a vote on his private Member’s bill, Keith Martin (Esquimalt–Juan de Fuca) took hold of the Mace. This action was raised as a question of privilege, a prima facie case of privilege was subsequently found by Speaker Milliken, and the House adopted a motion ordering the Member to appear at the Bar of the House to apologize for his actions. The following day, the Member appeared at the Bar of the House, the Speaker invited him by name, rather than by the name of his riding, to address the House. The Member apologized to the House and then took his seat.317
Taking Individuals into Custody and Imprisonment
In theory, the House of Commons possesses the right to confine individuals as a punishment for contempt,318 although it has not exercised this authority since 1913. In the years immediately following Confederation, the House ordered the Sergeant-at-Arms to take individuals into custody on four occasions and ordered the imprisonment of others. Again in 1913, the Sergeant-at-Arms was ordered to imprison an individual.
In May 1868, Henri Joly (Lotbinière) 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 because Mr. Joly was absent from the city and no further action was taken.319 In 1873, two Members, Prime Minister Sir John A. Macdonald and Frederick Pearson (Colchester), failed to appear when they were to be sworn in as members of a committee. A motion was adopted in the House to have them taken into the custody of the Sergeant-at-Arms. When Mr. Macdonald appeared, Dr. Charles Tupper (Cumberland) read an affidavit into the record stating that the Member 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.320 Also in 1873, Alderman John Heney of Ottawa was held in custody from November 4 to November 7 while waiting to appear at the Bar of the House on the charge of attempting to bribe a Member.321 In 1891, the House adopted a motion ordering the Sergeant-at-Arms to take Thomas McGreevy (Quebec West) into custody for failing to attend in his place to answer questions. The Sergeant-at-Arms reported back to the House two days later that he had been unable to locate the Member.322 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.323
In 2007, Karlheinz Schreiber, who was incarcerated, was taken into custody under the authority of the Speaker to allow him to appear before the Standing Committee on Access to Information, Privacy and Ethics. The Committee had been conducting hearings into the defamation settlement that former Prime Minister Brian Mulroney had been awarded from the government in 1997 with respect to allegations that he had received kickbacks connected to Air Canada’s purchase of Airbus planes in the 1980s. The Committee wished to receive testimony from Mr. Schreiber who, while willing to attend, could not because he was being held in a detention centre awaiting deportation to Germany. In order to facilitate the witness’s attendance, the Committee presented a report to the House requesting that the Speaker issue a warrant for his appearance. The House subsequently concurred in the report.324
Parliamentary privilege holds Members responsible for acting in character with the function they fulfill 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 House with the same privileges, immunities, and powers as enjoyed by the British House of Commons, the 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.325
Even this most drastic power has, however, 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.326
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”.327
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.328 In the autumn of that year, he was re-elected as the Member for Provencher. Mr. Riel’s second expulsion occurred in February 1875. On February 22, 1875, 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.329
In 1891, Thomas McGreevy (Quebec West) was accused by Israel Tarte (Montmorency) of corrupt practices concerning construction work in the harbour at Quebec City, 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.330
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.331
On October 31, 2014, the Ontario Court of Justice found Dean Del Mastro (Peterborough) guilty on four charges under the Canada Elections Act in connection with the 2008 federal election for wilfully incurring election expenses in excess of the campaign expense limits. The Act provides that, in such circumstances, the Member would no longer be able to sit in the House. A Member raised a question of privilege, claiming that it fell to the House to determine whether Mr. Del Mastro could continue sitting as a Member. The Speaker having found the matter to be a prima facie question of privilege, a motion, and an amendment to it, were debated which, if adopted, would have the effect of expelling Mr. Del Mastro, should his conviction be upheld following appeal. However, the following day, Mr. Del Mastro resigned, and the Speaker ordered the motion to be dropped from the Order Paper.332
The Rights to Institute Inquiries, to Require the Attendance of Witnesses and to Order the Production of Documents
By virtue of the preamble and section 18 of the Constitution Act, 1867, Parliament has the ability to institute its own inquiries, to require the attendance of witnesses and to order the production of documents, rights which are fundamental to its proper functioning. These rights are as old as Parliament itself. Maingot states:
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.333
These rights are now exercised for the most part by committees pursuant to powers delegated to them by the House in the Standing Orders.334
Each standing committee has a permanent order of reference which allows its members to conduct inquiries into departmental and policy matters. In addition, the House may refer additional matters to its committees for study. In the course of its study into a particular matter, a committee may wish to hear testimony from public officials, private individuals or representatives of groups, organizations and associations. In the majority of cases, witnesses invited to appear before a committee do so willingly. If a witness declines an invitation to appear, the committee may issue a summons to the witness by adopting a motion to that effect. If the witness still refuses to appear, the committee may report the matter to the House and the House then may order the witness to appear. If the witness disobeys the order, the witness may be declared guilty of contempt.
Committees are not empowered to compel the attendance of the Sovereign, the Governor General, Lieutenant Governors, Members, Senators, officers of another legislature or persons outside of Canada.335 Should a Member refuse to testify, the committee may report the matter to the House and then the House will decide what action is necessary. While Senators may appear before House committees voluntarily, if a committee wishes to extend a formal invitation to a Senator, the House may adopt a motion for a message to be sent to the Senate requesting that it grant leave for a Senator to appear before the committee.336
For the purposes of an inquiry, the committee may send for any papers that are relevant to its order of reference. Typically these documents include government reports, statistics, memoranda, agreements and briefs, and they are, with rare exceptions, provided voluntarily.337 As stated in a report of the Standing Committee on Privileges and Elections in 1991:
The power to send for persons, papers and records has been delegated by the House of Commons to its committees in the Standing Orders. It is well established that Parliament has the right to order any and all documents to be laid before it which it believes are necessary for its information. … The power to call for persons, papers and records is absolute, but it is seldom exercised without consideration of the public interest. The House of Commons recognizes that it should not require the production of documents in all cases; considerations of public policy, including national security, foreign relations, and so forth, enter into the decision as to when it is appropriate to order the production of such documents.338
If a committee’s request that it be given certain documents is met with resistance or disregarded, the committee may adopt a motion ordering the production of the requested documents.339 If such an order is ignored, the committee has no means to enforce the order on its own. It may report the matter to the House and recommend that appropriate action be taken.340 It is then a decision of the House whether or not to issue an order for the production of papers. This may be done by the adoption of a motion341 or by concurring in the committee’s report.342 If an order is issued and disregarded, the disciplinary powers of the House may be invoked. Individuals could be called to the Bar of the House, cited for contempt or otherwise punished. In 1891, a witness before a committee was called to the Bar of the House for refusing to produce documents requested by the committee.343 In 2004, the House found three companies in contempt of the House for refusing to provide a committee with the documents it had requested.344
In November 2009, the Special Committee on the Canadian Mission in Afghanistan reported to the House that its privileges had been breached by the Government’s failure to produce documents requested by the Committee relating to the detention of Afghan soldiers by Canadian Forces in Afghanistan.345 On December 10, 2009, the House, in turn, adopted an Order requiring the production of documents that the Committee had requested; the Government refused, citing national security concerns.346 Questions of privilege were raised based on the House’s absolute right to order documents. The Minister of Justice insisted that as the government had a duty to protect information that could jeopardize national security, that right was not without limits.347 On April 27, 2010, Speaker Milliken ruled that it was within the powers of the House to ask for the documents specified in the House Order, and that it did not transgress the separation of powers between the executive and legislative branches of Government. Thus, the Speaker concluded that the Government’s failure to comply with the House Order constituted a prima facie breach of privilege. However, he gave the parties two weeks to develop a mechanism that would accommodate the Government’s concerns over national security and the House’s right to receive the documents.348
The Right to Administer Oaths to Witnesses
The right of the House and of its committees to examine witnesses under oath, 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.349 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.
Under normal circumstances, witnesses before House committees are not sworn in. It is generally accepted that witnesses have a duty to speak the truth regardless of whether or not their testimony is given under oath.350 The decision as to the swearing-in of witnesses is left entirely to the discretion of the committee. If a witness refuses to be sworn in, the committee, not being empowered to deal with a perceived contempt, may report the matter to the House.351
Although the testimony of a witness before a parliamentary committee is protected by parliamentary privilege, if a committee determines that a witness has wilfully lied or misled it, the matter could be reported to the House. If the House finds that the witness has deliberately misled the committee, the witness could be found in contempt of the House whether the witness is under oath or not.
If the House determined that a witness had wilfully lied to a committee, it may deem it appropriate to waive its privileges and refer the matter to the Crown for a determination as to whether or not there is sufficient evidence to charge the offender with perjury.352 To do so, however, the testimony would need to have been given under oath.
In 2003, a subcommittee of the Standing Committee on Government Operations and Estimates was mandated to look into the possibility that the Privacy Commissioner and certain employees in the Office of the Privacy Commissioner had provided deliberately misleading testimony during the Committee’s hearings into matters related to that Office. In its report to the House on the subcommittee’s findings and conclusions, the Committee observed:
The formal placing of witnesses under oath does not create obligations that do not exist already. However, we believe it would communicate the importance of the obligations to which witnesses are subject more effectively than, for example, simply informing them that their testimony will have the status of testimony given under oath. More obviously, it has clear advantages over merely assuming that witnesses are aware of their duty to speak the whole truth.353
The Right to Publish Papers
The Parliament of Canada Act provides protection for the publication, by order of the House, of parliamentary papers such that no lawsuit may be brought relating to the contents of the papers or their appendices.354 This includes all documents published by a committee acting under the authority of the House. It has been established that householders and other communications between Members and their constituents are not considered a “proceeding in Parliament” and are therefore not protected by this particular parliamentary privilege.355