3. Privileges and Immunities

In contrast to the privileges and immunities of individual Members, which are finite, the privileges and powers of the House of Commons as a collectivity do not lend themselves to specific definition. The privileges needed by the House to perform its constitutional duties require the power to protect itself and punish any transgressions against it. ^[194]  Much like a court of law, the House of Commons enjoys very wide latitude in maintaining its dignity and authority through its exercise of contempt power, which is inherent to any superior court. In other words, the House may through its orders consider any misconduct to be contempt and may deal with it accordingly. This area of parliamentary law is therefore extremely fluid and most valuable for the Commons to be able to meet novel situations.

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, requires the attendance of witnesses, and orders the production of documents; the Parliament of Canada Act confers the right to administer oaths to witnesses. ^[195] 

The rights and powers of the House as a collectivity may be categorized as follows:

• the power to discipline;
• the regulation of its own internal affairs;
• the authority to maintain the attendance and service of its Members;
• the right to institute inquiries and to call witnesses and demand papers;
• the right to administer oaths to witnesses;
• the right to publish papers containing defamatory material.

The two most dominant rights or powers are the power to discipline and the right of the House to regulate its own internal affairs.

Whether it is against its own Members, staff or “strangers”, the House has the power to discipline whoever is guilty of a misconduct, which it considers to amount to a breach of privilege or contempt. Article 9 of the Bill of Rights gives both Members and strangers 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. ^[196]  This power affords the House a wide range of penalties for dealing with misconduct: non-Members may be removed from the galleries of the Chamber or from the parliamentary precinct, be given a reprimand, or incarcerated; Members may be called to order, directed to cease speaking because of persistent repetition and irrelevance in debate, “named” for disregarding the authority of the Chair, suspended from the service of the House, incarcerated or even expelled. The disciplinary power of the House is to some extent regulated through the Standing Orders so that each case need not be raised formally in the House in order to be dealt with efficiently. ^[197]  For example, this disciplinary power allows the House, through its Officers, to refuse entry to a stranger who has on previous occasions been guilty of misconduct in the public galleries or corridors.

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. ^[198]  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: the House has the right to reprimand and to imprison only until the end of the session; it does not have the power to impose fines. ^[199]  In Canada, Parliament has been reluctant to use these powers and such cases have been rare. With the adoption of the Charter of Rights and Freedoms, there is even some question as to the constitutionality of Parliament’s right to impose incarceration. ^[200] 

Censure, Reprimand and the Summoning of Individuals to the Bar of the House

On a number of occasions in the late nineteenth and early twentieth centuries, individuals were summoned to appear before the Bar of the House. The Bar is a brass rod extending across the floor of the Chamber inside its south entrance beyond which strangers are not allowed. Individuals who are in contempt of the House — that is, are guilty of an offence against the dignity or authority of Parliament — may be formally summoned by the House to appear before it, if the House adopts a motion to that effect. When summoned, the individual stands at the Bar. The House has ordered Members to attend in their places in the House and has summoned others 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 the Bar is an extraordinary event which places the Member or individual under the authority of the House vested with its full disciplinary powers.

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. The House 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. ^[201] 

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 allowed to withdraw. ^[202] 

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 7, 1873, but never appeared at the Bar as Parliament was prorogued on November 7. ^[203] 

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 murder of Thomas Scott. He failed to attend and was later expelled from the House. Three witnesses were summoned to appear at the Bar (the Attorney-General of Manitoba and two police officers of Ottawa) in relation to the Riel matter. All three appeared and were questioned. ^[204] 

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 asked 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 read to him before he was discharged. ^[205] 

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. ^[206] 

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. ^[207] 

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. ^[208] 

In 1894, two witnesses (Messrs. Provost and 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. ^[209] 

In 1906, William T. Preston, Inspector of Canadian Immigration in Europe, was a witness before the Agriculture and Colonization Committee as well as the Public Accounts Committee and refused to answer certain questions. Both committees reported this to the House. A motion was moved, based on the report of the Agriculture Committee, that he should be summoned to appear before the Bar of the House. However, the motion was amended to the effect that Preston was not required to appear, and the motion was adopted as amended. ^[210] 

Also in 1906, a Member complained about a newspaper article; it was read and a motion was adopted summoning its author, E.E. Cinq-Mars, to appear before the Bar of the House. Mr. Cinq-Mars appeared and answered questions during that sitting of the House and at another sitting. The House then adopted a motion of censure against him, which was read to him before he was discharged. ^[211] 

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 give 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. ^[212] 

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 a Member, Ian Waddell (Port Moody–Coquitlam), had attempted to take hold of the Mace as it was carried out of the Chamber. The Speaker found a prima facie case of contempt, and the House adopted an order finding Mr. Waddell guilty of contempt and calling him 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. ^[213] 

Taking Individuals into Custody and Imprisonment

The House of Commons possesses the right to confine individuals as a punishment for contempt. ^[214]  On occasion, it has ordered the Sergeant-at-Arms to take individuals into custody and has ordered the imprisonment of others. In May 1868, a Member 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 and no further action was taken. ^[215]  In 1873, two Members, Sir John A. Macdonald and Frederick Pearson, were members of a committee and failed to appear when they were to be sworn in. A motion was adopted in the House to have them taken into the custody of the Sergeant-at-Arms. When Mr. Macdonald appeared, another Member read an affidavit stating that he 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. ^[216]  In the November 1873 Heney case, the alderman was held in custody from November 4 to 7. ^[217]  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. ^[218] 

Expulsion

Parliamentary privilege holds Members responsible for acting in character with the function they fulfil 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 Canadian House with the same privileges, immunities, and powers as enjoyed by the British House of Commons, the Canadian 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. ^[219] 

Even this most drastic power has 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. ^[220] 

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.” ^[221] 

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. ^[222]  In the autumn of that year, he was re-elected as Member for Provencher. Mr. Riel’s second expulsion occurred in February 1875. On February 22, 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. ^[223] 

In 1891, Thomas McGreevy (Quebec West) was accused by Israel Tarte (Montmorency) of corrupt practices concerning construction work in the Quebec Harbour, 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. ^[224] 

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. ^[225] 

The exclusive right of the House of Commons to regulate its own internal affairs refers especially to its control of its own agenda and proceedings. ^[226]  For example, courts or other institutions cannot direct the affairs of the Commons, ^[227]  even when it may be in the interests of justice that cases pending before the courts not be discussed in a manner that might prejudice the outcome of such cases. The House of Commons is not obliged to restrain itself in matters sub judice so as to accommodate the interests of justice. While, by convention, parliamentarians often exercise caution in deference to the courts, there is no legal obligation to do so. That is because there may be an equally important public interest in the public debate of issues which happen also to be before the courts. ^[228]  Indeed, the passage of legislation by Parliament is often deliberately intended to influence the outcome of court cases.

The House of Commons is normally free from judicial review of its decisions when these are made pursuant to Standing Order, sessional order or resolution. ^[229]  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. ^[230]  If 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 exclusive right of the House of Commons to regulate its own internal affairs has also been construed to mean that local or provincial regulatory legislation does not ordinarily apply within the parliamentary precinct. Thus, for example, liquor permits are not required in order to operate a bar within the precinct, and elevators need not be certified safe by provincial authorities. ^[231]  Process servers ordinarily may not enter the precinct in order to serve civil process on anyone. ^[232]  Although the precinct of Parliament is not intended to be a sanctuary, the dignity of the House of Commons requires also that police forces not enter the precinct to investigate the commission of an offence without permission from the Speaker or the Sergeant-at-Arms. ^[233] 

The Standing Orders of the House 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. ^[234]  Ordinarily, the attendance of Members to their duties is not enforced by the House, and alluding to the presence or absence of Members in the Chamber is considered to be out of order. ^[235]

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. May notes: “Attendance upon the service of Parliament includes the obligation to fulfil the duties imposed upon Members by the orders and regulations of the House”. ^[236] 

The ability of Parliament to institute its own inquiries, to require the attendance of witnesses and to order the production of documents is fundamental to its proper functioning. It is as old as Parliament itself. Much of this power is now exercised by committees pursuant to powers delegated to them in the Standing Orders. ^[237]  “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.” ^[238] 

The right of the House and of its committees to examine witnesses under oath, ^[239]  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. ^[240]  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. It also stipulates that any person examined under oath who wilfully gives false evidence is liable to the penalties for perjury.

The Parliament of Canada Act ^[241]  provides protection for the publication, by order of the House, of any parliamentary paper which may contain or have appended to it defamatory material. ^[242]  This includes all documents published by a committee acting under the authority of the House. This right is not intended to protect the publication of libels that may be contained in other documents, such as the householder mailings of Members.