House of Commons Procedure and Practice
Edited by Robert Marleau and Camille Montpetit

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3. Privileges and Immunities

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[201]

Journals, March 10, 1873, pp. 10-12; March 26, 1873, pp. 70-3; March 27, 1873, pp. 75-7; March 28, 1873, p. 84.

[202]

Journals, April 7, 1873, pp. 133-4. According to Bourinot, 4^th ed., p. 53, the Speaker subsequently informed the House that Mr. Tassé had been dismissed.

[203]

Journals, November 3, 1873, pp. 134-5; November 4, 1873, p. 139; November 7, 1873, p. 142.

[204]

Journals, March 30, 1874, p. 8; March 31, 1874, pp. 10-3; April 1, 1874, pp. 14, 17-8; April 9, 1874, pp. 32-9; April 15, 1874, pp. 64-5; April 16, 1874, pp. 67-71; April 17, 1874, p. 74.

[205]

Journals, May 13, 1879, p. 423; May 15, 1879, p. 436; February 16, 1880, p. 24; February 24, 1880, pp. 58-9.

[206]

Journals, May 12, 1887, p. 121; May 30, 1887, pp. 187-93.

[207]

Journals, June 5, 1891, p. 205; June 16, 1891, pp. 211-2.

[208]

Journals, August 27, 1891, p. 454; September 1, 1891, p. 467.

[209]

Journals, June 7, 1894, p. 242; June 11, 1894, p. 288; June 13, 1894, pp. 298-300.

[210]

At a later date, a Supply motion attempted to remove Mr. Preston from office but it was not adopted by the House. See Journals, May 30, 1906, p. 316; June 1, 1906, p. 323; June 4, 1906, pp. 331-3; July 3, 1906, pp. 475-6.

[211]

Journals, June 6, 1906, p. 342; June 7, 1906, pp. 345-6; June 14, 1906, pp. 370-7.

[212]

Journals, February 14, 1913, p. 249; February 17, 1913, p. 254; February 18, 1913, pp. 266-7; February 20, 1913, pp. 274-8.

[213]

Journals, October 31, 1991, pp. 574, 579; Debates, October 31, 1991, pp. 4271-85, 4309-10. As a sitting Member, the individual could have received the admonishment at his assigned place, which would have been the normal practice. In this case, however, the motion did specifically call for the Member to appear at the Bar.

[214]

Maingot, 2^nd ed., pp. 193-209.

[215]

Journals, May 1, 1868, pp. 267-8; May 2, 1868, p. 271.

[216]

Journals, May 10, 1873, pp. 317-8; May 12, 1873, pp. 327-8.

[217]

Journals, November 3, 1873, p. 134-5; November 4, 1873, p. 139; November 7, 1873, p. 142.

[218]

Journals, February 14, 1913, p. 249; February 17, 1913, p. 254; February 18, 1913, pp. 266-7; February 20, 1913, pp. 274-8.

[219]

May, 20^th ed., p. 139.

[220]

Bourinot, 4^th ed., p. 64. For a discussion of expulsion and in particular the possible role of the Canadian Charter of Rights and Freedoms, see Gwenn Ronyk, “The Power to Expel”, The Table, Vol. 53 (1985), pp. 43-50, and Andrew Heard, “The Expulsion and Disqualification of Legislators: Parliamentary Privilege and the Charter of Rights”, Dalhousie Law Journal, Vol. 18 (Fall 1995), pp. 380-407.

[221]

Maingot, 2^nd ed., p. 211; see also pp. 212-5.

[222]

Journals, April 15, 1874, pp. 64-5; April 16, 1874, pp. 67-71; April 17, 1874, p. 74.

[223]

Journals, February 4, 1875, p. 42; February 22, 1875, p. 111; February 24, 1875, pp. 118-25.

[224]

Journals, May 11, 1891, pp. 55-60; August 12, 1891, p. 402; August 13, 1891, p. 407; August 18, 1891, p. 414; August 19, 1891, pp. 417, 419; August 20, 1891, p. 422; September 1, 1891, pp. 466-7; September 4, 1891, p. 477; September 16, 1891, p. 512; September 24, 1891, pp. 527-31; September 29, 1891, p. 561.

[225]

Journals, January 30, 1947, pp. 4-8. The matter of the expulsion of Members is also treated in Chapter 4, “The House of Commons and Its Members”.

[226]

See Maingot, 2^nd ed., pp. 183-7. Maingot states: “The right to regulate its own internal affairs and procedures free from interference includes:

The right to enforce discipline on Members of the House of Commons by suspension, commitment, and expulsion. However, this creates no disability to stand for re-election.
The right to secure the attendance of persons on matters of privilege, and to deliberate and examine witnesses, and to do so behind closed doors (in camera). This latter aspect may properly be considered to be included with the right to exclude strangers from the precincts.
The right to control the publication of its debates and proceedings and those of its committees by prohibiting their publication.
The right to administer that part of the statute law relating to its internal procedure without interference from the courts.
The right to administer its affairs within the precincts and beyond the debating Chamber, such as regulating the sale of intoxicating beverages within the precincts, and appointing and managing its staff.
The right to settle its own code of procedure.
The power to send for persons in custody.”

[227]

Members have objected to what they considered unfair interference by the judiciary. For example, on February 3, 1998, John Bryden (Wentworth–Burlington) raised a question of privilege concerning remarks made by Justice Marcel Joyal of the Federal Court. During a court proceeding, Justice Joyal had criticized the behaviour of Members during a Question Period, when Members had cheered and applauded the announcement of the dismissal of the chairman of the Canadian Labour Relations Board by Lawrence MacAulay (Minister of Labour). (Justice Joyal had compared them to the crowds around the guillotine during the French Revolution.) The Chairman had initiated court proceedings to prevent his dismissal, and it was during these proceedings that Justice Joyal had made his comments. Mr. Bryden argued that Justice Joyal was in contempt of the House. In a statement on February 11, 1998, Speaker Parent noted that there is a necessary constitutional divide between the legislative and judicial branches. He also noted that the practice of the House is to treat as unparliamentary and a breach of order any reference to a judge or court which is a personal attack or censure. He went on to state that the House of Commons deserved at least the same respect from the courts. As the Clerk of the House had received correspondence from the Chairman of the judicial conduct committee of the Canadian Judicial Council that Justice Joyal’s remarks were being investigated, the Speaker decided to await the outcome of the review before taking further action on Mr. Bryden’s question of privilege (Debates, February 11, 1998, pp. 3737-8). On April 21, 1998, the Speaker tabled correspondence and documentation from the Judicial Council. The Council’s committee had found that Justice Joyal’s comments were inappropriate and outside the sphere of proper judicial expression. It also noted that the Justice had acknowledged publicly the inappropriateness of his remarks. The committee concluded that the Judge’s conduct did not warrant a formal investigation. Speaker Parent stated that with the tabling of these documents he considered the matter closed (Debates, April 21, 1998, p. 5910; Journals, April 21, 1998, p. 682). See also Robert Marleau, “Relationship Between Parliament and the Courts in Canada: The Joyal Affair,” The Table, Vol. 66 (1998), pp. 15-21.

[228]

On March 8, 1990, Speaker Fraser ruled on a point of order raised on March 5, 1990 by Nelson Riis (Kamloops). The Member had asked the Speaker to consider whether debate on the Budget, presented on February 20, 1990, should be allowed to continue and whether the House should suspend any proceedings in relation to a bill on notice based on the government’s budget policy, given the action taken by the government of British Columbia to challenge in the courts the federal government’s decision to cap its contributions to the Canada Assistance Plan. In his ruling, the Speaker pointed out that “as the debate on the budget is generally wide-ranging and touches upon all aspects of the government’s budgetary policy, members are at liberty to debate or not debate whatever aspect of the motion they choose. Therefore I must rule that the sub judice convention does not apply in the present circumstances” (Debates, March 8, 1990, p. 9007). See also Debates, March 5, 1990, pp. 8767-70; March 8, 1990, pp. 9006-9.

[229]

For discussion of the possible role of the courts, see Maingot, 2^nd ed., pp. 185-7. On January 22, 1999, Justice Chadwick of the Ontario Court (General Division) did rule on a matter brought before the Court which arose from an order of the House. On June 4, 1998, the House adopted the following order: “That this House order that Ernst Zundel be denied admittance to the precinct of the House of Commons during the present Session” (see Journals, June 4, 1998, p. 937; Debates, June 4, 1998, pp. 7608-9, 7616). The House had adopted this order to prevent Mr. Zundel from holding a press conference in the Canadian Parliamentary Press Gallery’s Conference Room in the Centre Block of the Parliament Buildings. Mr. Zundel had brought an action against the political parties represented in the House of Commons, as well as a number of Members of Parliament, seeking a declaration that the defendants had violated his right to freedom of expression guaranteed under section 2(b) of the Canadian Charter of Rights and Freedoms which was not justified under section 1 of the Charter, and seeking damages against each defendant for, among other reasons, wrongfully and maliciously violating his right to freedom of expression with intent to injure him. In dismissing the action, Justice Chadwick found, among other reasons, that the House of Commons was exercising its parliamentary privilege in restricting the precinct of the House of Commons and did not prohibit Mr. Zundel from speaking. The Justice also stated: “Although there is no reference to the reason behind the decision, it is obvious it was to preserve the dignity and integrity of Parliament.” (Ernst Zundel v. Liberal Party of Canada et al., Reasons for Decision, Ontario Court (General Division), Court File No. 98-CV-7845, January 22, 1999.)

[230]

For example, although Standing Order 109 confers a right upon demand to a comprehensive response from the government to a committee report within 150 days of its presentation, the “right”, which belongs to the committee requesting the response and not to individual Members, is not a legal right of which the courts may take any notice.

[231]

Maingot, 2^nd ed., p. 165. However, Maingot notes: “Generally speaking, the ordinary civil and criminal laws of the Province of Ontario and of Canada respectively apply on Parliament Hill and within the precincts in the same way as elsewhere in Ontario” (p. 172).

[232]

On June 4, 1993, Brian Tobin (Humber–St. Barbe–Baie Verte) rose on a question of privilege complaining of intimidation and interference as he attempted to perform his parliamentary duties. The Member explained that he had been served with a notice of intention to bring action against him unless he made certain withdrawals concerning an individual, Mr. Ralfe. The Member was disturbed by the fact that the document had been served to him in the lobby of the House of Commons. On June 10, 1993, Deputy Speaker Champagne delivered a ruling in which she referred to the long-standing tradition that process cannot be served in the precinct of the House of Commons without the permission of the Speaker. She also made reference to the ruling of Speaker Fraser of May 19, 1989, on a question of privilege raised by David Kilgour (Edmonton Southeast) who had been served in his Centre Block Office. (See Debates, May 19, 1989, pp. 1951-3. See also above section entitled “Exemption from Appearing as a Witness”.) The Deputy Speaker noted that the letter delivered to Mr. Tobin did not fall under the definition of process (implying an issuance from a court of law) as legal proceedings had not begun. She commented that, in this instance, there was no requirement to inform the Speaker and ruled that there was no prima facie case of privilege. See Debates, June 4, 1993, pp. 20375-7; June 10, 1993, pp. 20693-4. See also Debates, June 4, 1993, pp. 20371-2.

[233]

Parliament of Canada Act, R.S.C. 1985, c. P-1, s. 5.

[234]

Standing Order 15.

[235]

See Chapter 4, “The House of Commons and Its Members”, and Chapter 13, “Rules of Order and Decorum”.

[236]

May, 22^nd ed., p. 179.

[237]

Standing Order 108 (1)(a).

[238]

Maingot, 2^nd ed., p. 190. See also p. 191. For a more detailed examination of the functioning of committees, see Chapter 20, “Committees”.

[239]

See Maingot, 2^nd ed., pp. 191-2.

[240]

R.S.C. 1985, c. P-1, ss. 10-13.

[241]

R.S.C. 1985, c. P-1, ss. 7-9.

[242]

The famous case of Stockdale v. Hansard in the 1830s resulted in a decision by the British courts that parliamentary privilege did not provide the authority to publish defamatory material with impunity (see Maingot, 2^nd ed., pp. 281-7). As a result, legislation was adopted throughout the British Empire in the nineteenth century to grant assemblies the right to publish documents which contained such material.

[243]

Maingot, 2^nd ed., p. 16.

[244]

For the role of the House of Lords as a Court of Judicature, see May, 22^nd ed., pp. 60-3.

[245]

For a history of the courts and parliamentary privilege, see Maingot, 2^nd ed., pp. 271-302; May, 22^nd ed., pp. 153-72.

[246]

R.S.C. 1985, c. P-1, s. 5.

[247]

For a discussion of this matter, see Odgers, 8^th ed., pp. 35-8, 40-2.

[248]

May, 22^nd ed., pp. 65-6; Maingot, 2^nd ed., p. 16.

[249]

Hatsell, Vol. 1, p. 1.

[250]

Geoffrey Marshall, “The House of Commons and Its Privileges,” The House of Commons in the Twentieth Century, edited by S.A. Walkland, Oxford: Clarendon Press, 1979, p. 205; May, 22^nd ed., pp. 131-2.