Privilege is that which sets hon. members apart from other citizens giving them rights which the
public do not possess… In my view, parliamentary privilege does not go much beyond the right
of free speech in the House of Commons and the right of a member to discharge his duties in the House
as a member of the House of Commons.
Speaker Lucien Lamoureux
(Debates, April 29, 1971, p.5338)
T
he practices and precedents of the House of Commons of Canada
regarding parliamentary privilege stretch far back into colonial times. At an early stage, the young
assemblies of the colonies, modelling themselves on Westminster, claimed the privileges of the British
House, though without statutory authority. At Confederation, the privileges of the British House were
transferred in the Constitution Act, 1867 [1]
to the Canadian Parliament, and for many years the Canadian House continued to look to the experience
of the British House for guidance in matters of parliamentary privilege. [2]
The origins of the privileges enjoyed by the House of Commons in the United Kingdom were a product of
a direct and real threat from the Crown and the House of Lords. As the threat subsided, the thrust of
the history of privilege has been towards defining those rights and immunities in their narrowest sense,
reflecting the reality that all privileges enjoyed by the House and its Members ultimately derive from
the electorate. Fortunately, the privileges of the Canadian House of Commons were inherited without the
need to overcome physical threats and challenges. They enable the institution of Parliament to flourish
and individual Members to fulfil the functions for which they were elected.
In modern parlance, the term “privilege” usually conveys the idea of a “privileged
class”, with a person or group granted special rights or immunities beyond the common advantages
of others. [3]
This is not, however, the meaning of privilege in the parliamentary context. “Parliamentary privilege”
refers more appropriately to the rights and immunities that are deemed necessary for the House of Commons,
as an institution, and its Members, as representatives of the electorate, to fulfil their functions. It
also refers to the powers possessed by the House to protect itself, its Members, and its procedures from
undue interference, so that it can effectively carry out its principal functions which are to inquire, to
debate, and to legislate. [4]
In that sense, parliamentary privilege can be viewed as special advantages which Parliament and its Members
need to function unimpeded.
This chapter will briefly summarize the evolution of privilege in the United Kingdom and in Canada,
discuss the rights and immunities of the House and its Members, and describe the procedures by which
matters of privilege are raised and dealt with in the Canadian House. For an in-depth treatment of the
subject, the reader is referred to two principal sources. The first is Erskine May’s Treatise
on The Law, Privileges, Proceedings and Usage of Parliament, [5]
which lays out the practice and precedents of the British House of Commons. The second is
Parliamentary Privilege in Canada by Joseph Maingot, [6]
which focusses on the history and workings of privilege in Canada.
Parliamentary Privilege: A Definition
The classic definition of parliamentary privilege is found in Erskine May’s Treatise on the
Law, Privileges, Proceedings and Usage of Parliament:
Parliamentary privilege is the sum of the peculiar rights enjoyed by each House collectively… and by
Members of each House individually, without which they could not discharge their functions, and which
exceed those possessed by other bodies or individuals. Thus privilege, though part of the law of the
land, is to a certain extent an exemption from the general law. [7]
These “peculiar rights” can be divided into two categories: those extended to Members
individually, and those extended to the House collectively. Each grouping can be broken down into specific
categories. For example, the rights and immunities accorded to Members individually are generally
categorized under the following headings:
- freedom of speech;
- freedom from arrest in civil actions;
- exemption from jury duty;
- exemption from attendance as a witness.
The rights and powers of the House as a collectivity may be categorized as follows:
- the power to discipline, that is, the right to punish (by incarceration) persons guilty of breaches
of privilege or contempts, and the power to expel Members guilty of disgraceful conduct;
- 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.
These two groupings represent all the privileges extended to Members of Parliament and the House of
Commons collectively. Each of these privileges will be examined in greater detail and illustrated with
relevant cases later in this chapter.
The House has the authority to invoke privilege where its ability has been obstructed in the execution
of its functions or where Members have been obstructed in the performance of their duties. It is only
within this context that privilege can be considered an exemption from the general law. Members are not
outside or above the law which governs all citizens of Canada. The privileges of the Commons are
designed to safeguard the rights of each and every elector. [8]
For example, the privilege of freedom of speech is secured to Members not for their personal benefit,
but to enable them to discharge their functions of representing their constituents without fear of civil
or criminal prosecution for what might be said in the House and committees. When a constituency has
returned a candidate, it is the electors’ right that this chosen representative should be protected
from any kind of improper pressure, and particularly from crude violence. [9]
The distinctive mark of a privilege is its ancillary character. The privileges of Parliament are rights,
which are “absolutely necessary for the due execution of its powers”. They are enjoyed by
individual Members because the House cannot perform its functions without unimpeded use of the services of
its Members; and by each House for the protection of its Members and the vindication of its own authority
and dignity. [10]
Privilege essentially belongs to the House as a whole; individual Members can only claim privilege insofar
as any denial of their rights, or threat made to them, would impede the functioning of the House. In
addition, individual Members cannot claim privilege or immunity on matters that are unrelated to their
functions in the House. [11]
Any conduct which offends the authority or dignity of the House, even though no breach of any specific
privilege may have been committed, is referred to as a contempt of the House. Contempt may be an act or an
omission; it does not have to actually obstruct or impede the House or a Member, it merely has to have the
tendency to produce such results.
What Parliament has considered as “absolutely necessary” privileges has varied over the
centuries. Nevertheless, certain basic principles relating to privilege have become established. Neither
House individually can extend its privileges, though either House can, formally by resolution, decide not
to claim or apply privileges it has hitherto claimed. [12]
No one House of Parliament has a right to claim for itself new privileges; new privileges can only be
created or old privileges extended by Act of Parliament. [13]
Either House can apply its rights to new circumstances, thereby in some cases creating new instances of
contempt. [14]
And finally, each House can individually adjudicate and punish breaches of its privileges.
Historical Perspective
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 early claims to some of these privileges were originally made in
this context. [15]
In any case, 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 statute and common law of the land.
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
transferred to the Canadian Parliament at the time of Confederation through the Constitution Act, 1867
and were put into force by the enactment of a statute now known as the Parliament of Canada Act. [16]
Nonetheless, the privileges enjoyed by the House and its Members 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 British House of Commons began its struggle to win its basic rights and immunities from
the King. [17]
The earliest cases go back to the fourteenth and fifteenth centuries when several Members and Speakers were
imprisoned by the King who took offence at 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. Sir Thomas More, when
elected Speaker of the House of Commons in 1523, was among the first Speakers to petition the King to seek
the recognition of certain privileges for the House. [18]
By the end of the sixteenth century, the Speaker’s petition to the King had become a fixed practice. [19]
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 “that every 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”. [20]
In rebuke, James ordered that the Journals of the House be sent to him; he tore out the offending
page of protest and then summarily dissolved Parliament. [21]
Nor was privilege able to prevent the detention or arrest of Members at the order of the Crown. On several
occasions in the early seventeenth 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, judgements were brought against several Members for sedition. These outrages
by the Crown were denounced after the Civil War and in 1667 both Houses agreed that the judgement against
the arrested Members had been illegal and contrary to the privileges of Parliament. [22]
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”. [23]
Free speech in the House was now finally established and protected from interference either by the Crown or
the courts.
In the late seventeenth century and the first half of the eighteenth 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 became
a serious obstruction to the ordinary course of justice. [24]
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. [25]
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. [26]
The nineteenth century witnessed numerous cases of privilege, which helped to determine the bounds between
the rights of Parliament and the responsibility of the courts. [27]
Perhaps the most famous of the court cases was Stockdale versus 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. [28]
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. “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.’” [29]
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. [30]
Modern Practice in the United Kingdom
While the late eighteenth and nineteenth centuries saw, for the first time, the systematic study of the
history of privilege and contempt, [31]
the culmination of these efforts to understand and elucidate better the constitutional history of Parliament
was achieved in 1946 with the publication of the fourteenth edition of May. 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. [32]
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 was formerly the case.
The change became apparent in 1967 when the Select Committee on Parliamentary Privilege issued a report on
the entire subject of privilege. In its report, the Committee noted that the law, practice and procedure
relating to privilege at Westminster at that time had been the subject of much criticism. [33]
The general thrust of the Committee’s view of privilege was evident from a recommendation to forsake
the term “privilege” for “rights and immunities”. In justifying this proposal, the
Committee wrote:
Your Committee have reached the conclusion that the word “privilege” has in modern times
acquired a meaning wholly different from its traditional Parliamentary connotation. In consequence its use
could convey to the public generally the false impression that Members are, and desire to be, a
“privileged class”. It is out of keeping with modern ideas of Parliament as a place of work and
of the status of its Membrs as citizens who have been elected to do within that place of work their duty as
representatives of those who elected them. Your Committee cannot too strongly emphasise the fundamental
principle that “privileges” are not the prerogative of Members in their personal capacities.
Insofar as the House claims and Members enjoy those rights and immunities which are grouped under the
general description of “privileges”, they are claimed and enjoyed by the House in its corporate
capacity and by its Members on behalf of the citizens whom they represent. Your Committee therefore strongly
favour the discontinuance of the use of the term “privilege” in its traditional Parliamentary
sense. They believe that if the basic concept of “privileges” or “privilege” is
abolished, it will be easier to understand and to concentrate upon the provision of the essential protection
which is required by the House, its Members and Officers. [34]
The Select Committee accepted the need for the radical reform of the law, practice and procedure relating
to privilege and especially contempt, agreeing that they required to be simplified and clarified 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”. [35]
However, with respect to contempts which can extend far beyond the boundaries of those recognized rights
and immunities, the Committee proposed that, as a general rule, the House should exercise its authority
“ … as sparingly as possible and only when it is satisfied that to do so is essential in order
to provide reasonable protection for the House, its Members or its Officers, from such improper obstruction
or attempt at or threat of obstruction as is causing, or is liable to cause, substantial interference with
the performance of their respective functions”. [36]
The general thrust and conclusions of the 1967 report were reiterated in a subsequent report of the
Committee of Privileges in 1977. This Committee again reviewed the meaning of privilege and contempts and
again made recommendations to limit their application to cases of clear necessity. Another recommendation
concerned a new procedure for raising complaints in the British House. The practice was for matters of
privilege to be raised at the earliest opportunity and for the Speaker to be satisfied that a prima
facie (on the first impression or at first glance) case had been established. Failing either of these
two requirements, the alleged question of privilege forfeited its claim to priority of consideration before
all other matters in the House. [37]
Under the new scheme proposed by the Committee, Members seeking to raise a privilege complaint would give
written notice to the Speaker as soon as was practicable after the Member had become aware of the offending
incident. If, however, after consideration, the Speaker did not find that the complaint warranted precedence
in the House, the Member would be informed by letter and any attempt to raise the matter of privilege in
the House would be out of order. If the Speaker did decide in favour of the complaint, the decision was
made known to the House and, on the following day, a motion to refer the matter to committee could be
considered. [38]
This recommendation, among others, was implemented. The new procedure had a dramatic effect on the number
of claims to privilege raised in the British House. [39]
Because a question of privilege first must be cleared through the Speaker privately before it can be
brought to the attention of the House at all, there has been a marked decrease in the claims of breaches of
privileges. “The use of the word ‘privilege’ to gain the Speaker’s ear and to
secure the chance to raise a political issue unrelated to real privilege… is now almost unknown.” [40]
There are now far fewer trivial cases referred to the Committee of Privileges. In particular, since 1978,
there have been no cases of privilege involving what is often referred to as “constructive contempts”,
that is, rude or derogatory reflections on Members. In this sense, the new privilege practice has helped to
cure a problem first suggested in the 1967 report that Members of the British House of Commons were too
sensitive in their reaction to press criticism. In addition, the total number of privilege matters of all
kinds referred to committee has been significantly reduced. Finally, the House usually accepts without
debate most of the reports now presented by the Committee of Privileges. Only when the Committee finds that
there has been a serious breach of privilege or contempt requiring further action does the House consider
the report. [41]
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. “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.” [42]
As to the power of an Assembly in the colonies to punish and more especially imprison for contempt, the
situation was not at all clear. [43]
In effect, the rights enjoyed by the Assemblies in the pre-Confederation period were quite limited. [44]
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. [45]
In Upper and Lower Canada, the Constitutional Act, 1791, 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”. [46]
Although it had no statutory authority, 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, “which though not recognized de jure, were at least recognized de facto”. [47]
In the period prior to responsible government, the Assembly in Upper Canada guarded its reputation by
punishing libels against it in the newspapers and also fought for the right to initiate money bills, that
is, bills for appropriations and taxation. [48]
In general, the Assembly of Upper Canada was satisfied that it could discharge its functions with the
privileges it had. [49]
In the same period, the Assembly of Lower Canada also asserted both individual and corporate 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. [50]
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. [51]
With the Union Act, 1840 which created the Province of Canada out of Upper and Lower Canada, and
especially following the achievement of responsible government, issues of privilege were less frequent or
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 commit or imprison for contempt claimed
by the Assembly of the Province of Canada remained an issue. In 1842, it was held “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 for contempt even when committed in the assembly.” [54]
Privilege Since Confederation
As has already been stated, the privileges of the British House of Commons were transferred to Canada in
the Constitution Act, 1867. Section 18 of the Act was quite explicit in limiting the privileges
that can be claimed in Canada to those of the British Parliament. It read:
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]
The privileges, immunities and powers of the House are also embodied in sections 4 and 5 of the Parliament
of Canada Act. [56]
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 becalled 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. [57]
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 really 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. [58]
Here, too, they met with little interference from Chair occupants. [59]
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”, [60]
the number of legitimate matters of privilege dealt with the House declined dramatically. [61]
Modern practice in matters of privilege first took root following the publication of the fourth edition of
Beauchesne’s Parliamentary Rules and Forms in 1958. Beauchesne included a new section, taken
from May, 14th edition, published in 1946, on the manner of raising questions of privilege. [62]
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. [63]
Nonetheless, on occasion the House adopted motions on matters of privilege without a ruling of the Speaker. [64]
In the years that followed, successive Speakers kept 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. [65]
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 the Speaker 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, [66]
a ruling frequently cited in subsequent years. [67]
In 1964, the Deputy Speaker ruled that questions of privilege could not be raised during proceedings on the
adjournment motion, [68]
while in 1975 the House adopted a report which recommended that such matters should not be taken up during
Question Period. [69]
Divisions were also judged an inopportune time for raising questions of privilege on matters not related to
the business then before the House. [70]
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. [71]
By definition, a matter of privilege also involves a substantive proposal which, because it involves the
privileges of the House or of its Members, is given precedence with the usual notice requirements being waived.
Privilege Challenged in Court
An examination of privilege in the Canadian context shows that the constitutionally guaranteed privileges of
the House have rarely, if ever, been seriously challenged. Indeed, there have been only two significant
court actions; one relating to freedom of speech in the House of Commons and the other concerned with the
right of a provincial legislature to control its proceedings.
The first matter, dealing with freedom of speech, arose in a judicial setting, rather than in the House of
Commons itself. In the case of the Roman Corporation Limited versus Hudson’s Bay Oil and Gas
in 1971, an action was brought against the Prime Minister and the Minister of Energy, Mines and Resources
for announcements made in the House of Commons. In its ruling, the Ontario Supreme Court disavowed any
jurisdiction over statements made in Parliament based on Article 9 of the English Bill of Rights
of 1689. [72]
However, Speakers have always urged Members not to abuse their privilege in light of the damage that can
result through the wide dissemination of their remarks through the official printed reports of the House
and the television broadcasts of House proceedings. [73]
The second matter involved the right of the House of Assembly in the province of Nova Scotia, in light of
the Canadian Charter of Rights and Freedoms, [74]
to exclude strangers from its proceedings. The case involved a claim by the Canadian Broadcasting
Corporation (CBC) that its reporters had a constitutional right to film the proceedings of the Nova Scotia
House of Assembly with their own cameras. CBC applied to the Nova Scotia Supreme Court for an order allowing
it to film the proceedings based on Section 2(b) of the Charter which guarantees freedom of expression,
including freedom of the press. The Trial Division and the Court of Appeal both ruled in favour of the CBC
and the Speaker of the House of Assembly appealed to the Supreme Court of Canada. [75]
The Supreme Court allowed the appeal and overturned the decisions of the lower courts, upholding the
absolute authority of the Houses of Parliament and of the legislative assemblies to control their
proceedings and reasserting the independence of the different branches of government. [76]
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 (1974-79) when the Special Committee on Rights and Immunities of Members
was created under the chairmanship of Speaker James Jerome. The Committee presented two reports, one on
privilege in the First Session [77]
and one on the sub judice convention in the Second Session. [78]
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, 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 Report 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 meet outside of Ottawa) and “proceedings in Parliament”. It also
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 focussed on the sub judice convention. [79]
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 (1989-91) of the Thirty-Fourth Parliament (1988-93). [80]
While the Committee did take up consideration of the matter, [81]
no report on this topic was tabled in 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 regarding the authority, responsibilities and jurisdiction
of the Board of Internal Economy. [82]
While this Special Committee focussed 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. [83]
In its Second Report, the Special 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.” [84]
The Special 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… .” [85]
In its Third Report which focussed on the execution of search warrants within the parliamentary precinct,
the Special Committee stated as part of its recommendations:
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… . [86]
Privilege Versus Contempt
Any disregard of or attack on the rights, powers and immunities of the House and its Members, either by an
outside person or body, or by a Member of the House, is referred to as a “breach of privilege”
and is punishable by the House. [87]
There are, however, other affronts against the dignity and authority of Parliament which may not fall within
one of the specifically defined privileges. Thus, the House also claims the right to punish, as a contempt,
any action which, though not a breach of a specific privilege, tends to obstruct or impede the House in the
performance of its functions; obstructs or impedes any Member or Officer of the House in the discharge of
their duties; or is an offence against the authority or dignity of the House, such as disobedience of its
legitimate commands or libels upon itself, its Members, or its Officers. [88]
“The rationale of the power to punish contempts, whether contempt of court or contempt of the Houses,
is that the courts and the two Houses should be able to protect themselves from acts which directly or
indirectly impede them in the performance of their functions.” [89]
In that sense, all breaches of privilege are contempts of the House, but not all contempts are necessarily
breaches of privilege.
Contempts, as opposed to “privileges”, cannot be enumerated or categorized. As Speaker Sauvé
explained in a 1980 ruling, “ … while our privileges are defined, contempt of the House has no
limits. When new ways are found to interfere with our proceedings, so too will the House, in appropriate
cases, be able to find that a contempt of the House has occurred.” [90]
Just as it is not possible to categorize or to delineate what may fall under the definition of contempt, it
is not even possible to categorize the “severity” of contempt. Contempts may vary greatly in
their gravity; matters ranging from minor breaches of decorum to grave attacks against the authority of
Parliament may be considered as contempts. [91]
By far, most of the cases of privilege in the Canadian House relate to matters of contempt challenging the
perceived authority and dignity of Parliament and its Members. [92]
Other cases have involved charges made between Members [93]
or media allegations concerning Members. [94]
The premature disclosure of committee reports and proceedings has frequently been raised as a matter of
privilege. [95]
However, in those instances where no specific individual has been identified, the matter has not been
pursued even though it might appear to involve contempt. [96]
The reluctance to invoke the House’s authority to reprimand, admonish or imprison anyone found to have
trampled its dignity or authority and that of its Members appears to have become a near constant feature of
the Canadian approach to privilege. Though the power of the House to imprison remains, it is difficult to
foresee circumstances arising that would oblige the House to invoke it. [97]
Members have proven themselves to be fairly thick-skinned when it comes to criticism, even when it appears
hard and unfair. They seem willing to endure such treatment from the press and other media rather than
raise a potential conflict between the authority of the House and the freedom of the press. [98]
There is, however, no doubt that the Canadian House of Commons remains capable of protecting itself from
senseless abuse should the occasion ever arise.
In only a very few cases in Canadian practice has the House, or a procedure committee report, recommended a
punishment. A 1976 committee report did chastise a former Member (Auguste Choquette) who claimed that many
parliamentarians had obtained undue financial considerations. After the former Member maintained his
allegation under questioning, the committee concluded that his attitude was intemperate and irresponsible,
but recommended no further consideration be given to the matter. [99]
In the 1987 Parry case, the Committee also did not recommend punishment [100]
and the Member’s apology to the House put an end to the matter. In the 1996 Jacob case, the Committee
noted that while the Member’s actions were ill advised, they did not amount to contempt or a breach
of parliamentary privilege. [101]
This was also true in the 1998 case concerning the integrity of the House and the Speaker, following
comments that were made on the Speaker’s ruling on displaying the flag in the House. In its report,
the Standing Committee on Procedure and House Affairs found that the statements attributed to the Members
quoted in the Ottawa Sun newspaper did not bring into question the integrity of the House or the
Speaker. [102]
The Structure of Privilege
The privileges of the House can be examined from two vantage points: the rights and immunities of its
individual Members and the rights of the House in its collective capacity. Within this framework, the
individual Member’s rights are subordinate to those of the House as a whole in order to protect the
collectivity against any abuses by individual Members. For instance, a Member’s individual privileges
may be considered suspended if the House orders that Member to attend in his or her place and answer
questions demanded by the House. It is extremely rare, however, that the rights of the House collectively
will be used to override those of an individual. [103]
Some of these immunities are applicable to officials of the House and to individuals summoned by the House
on official business. [104]
In addition, both the House in its collective capacity and Members individually have the responsibility
to protect from abuse their rights and immunities, particularly freedom of speech. [105]
Members should avoid any arrangement which might limit their independence as Members: [106]
they should not raise trivial matters as matters of privilege or contempt; and they should not use the
privilege of freedom of speech to be unfairly critical of others in debate. [107]
The House should exercise its powers with regard to privilege and contempt sparingly and ensure that when
exercising its power to punish for contempt, the action it orders is appropriate to the offence.
Rights and Immunities of Individual Members
The rights, privileges and immunities of individual Members of the House are finite, that is to say,
they can be enumerated but not extended except by statute or, in some cases, by constitutional amendment,
and can be examined by the courts. Moreover, privilege does not exist “at large” but applies
only in context, which usually means within the confines of the parliamentary precinct and a
“proceeding in Parliament”. With the role of the courts to uphold the Canadian Charter of
Rights and Freedoms as well as the Canadian Bill of Rights, Members must avoid creating
unnecessary conflicts with private rights and thereby having issues of parliamentary privilege brought
before the courts.
Freedom of Speech
By far, the most important right accorded to Members of the House is the exercise of freedom of speech in
parliamentary proceedings. It has been described as:
… a fundamental right without which they would be hampered in the performance of their duties. It
permits them to speak in the House without inhibition, to refer to any matter or express any opinion as
they see fit, to say what they feel needs to be said in the furtherance of the national interest and the
aspirations of their constituents. [108]
Much has been written about this over the centuries — in Great Britain, Canada and throughout the
Commonwealth. [109]
In Odgers’ Australian Senate Practice, this privilege is expressed in broader terms as
immunity of proceedings from impeachment and question in the courts. [110]
It is also stated that this is the only immunity of substance possessed by the Houses of Parliament and
their Members and committees. [111]
There are two aspects to the immunity. “First, there is the immunity from civil or criminal action
and examination in legal proceedings of members of the Houses and of witnesses and others taking part in
proceedings in Parliament… . Secondly, there is the immunity of parliamentary proceedings as such
from impeachment or question in the courts.” [112]
The statutory existence of parliamentary privilege in relation to freedom of speech dates from the
adoption of the English Bill of Rights in 1689. Though meant to counter the challenge of the Crown,
it also prohibited actions of any kind by any person outside the House against Members for what they might
say or do in Parliament. Section 9 of that statute declares, “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”. [113]
Proceedings in Parliament
No definition of “proceedings in Parliament” is contained in the English Bill of Rights
and, as is noted in May, although the courts both in the United Kingdom and elsewhere have
commented on the term, no comprehensive lines of decision have emerged and an exhaustive definition has
not been achieved. [114]
Maingot has also devoted considerable attention to the term. [115]
In a supplementary memorandum to the 1967 United Kingdom Select Committee on Parliamentary Privilege, the
Clerk of the British House of Commons wrote of the term:
The primary meaning, as a technical parliamentary term of “proceedings” (which obtained at
least as early as the seventeenth century) is some formal action, usually a decision, taken by the House
in its collective capacity. This is naturally extended both to the forms of business on which the House
takes action and to the whole process, the principal part of which is debate, by which the House reaches a
decision.
An individual Member takes part in proceedings usually by speech, but also by various recognised kinds of
formal action, such as voting, giving notice of a motion, etc., or presenting a petition or a report from a
Committee, most of such actions being time-saving substitutes for speaking. Officers of the House take part
in its proceedings principally by carrying out its orders, general or particular. Strangers can also take
part in the proceedings of the House, e.g., by giving evidence before one of its committees, or by
presenting petitions for or against private bills.
While taking part in the proceedings of the House, Members, officers and strangers are protected by the
same sanction as that by which freedom of speech is protected, namely, that they cannot be called to
account for their actions by any authority other than the House itself.
By the insertion of the term “proceedings” in the Bill of Rights, Parliament gave statutory
authority to what was implied in previous declarations of the privilege of freedom of speech by the
Commons, e.g. in the Protestation of 1621, where it is claimed:
that in the handling and proceeding of those businesses every member of the House of Parliament hath and
of right ought to have freedom of speech to propound, treat, reason and bring to conclusion the same…
and that every member of the said House hath 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 (1 Rushworth, 53).
A general idea of what the term covers is given in the Report of the Select Committee on the Official Secrets
Acts in Session 1938-39.
It covers both the asking of a question and the giving written notice of such question, and includes
everything said or done by a Member in the exercise of his functions as a member in a committee of either
House, as well as everything said or done in either House in the transaction of Parliamentary business. [116]
In Australia, the Commonwealth Parliament has enacted the Parliamentary Privileges Act 1987 which
defines “proceedings in Parliament” as follows:
… all words spoken and acts done in the course of, or for purposes of or incidental to, the
transacting of the business of a House or of a committee, and, without limiting the generality of the
foregoing, includes
- (a)
- the giving of evidence before a House or a committee, and evidence so given;
- (b)
- the presentation or submission of a document to a House or a committee;
- (c)
- the preparation of a document for purposes of or incidental to the transacting of any such
business; and
- (d)
- the formulation, making or publication of a document, including a report, by or pursuant to an
order of a House or a committee and the document so formulated, made or published. [117]
There is no statutory definition of “proceedings in Parliament” in Canada. From the numerous
court cases where the law of parliamentary privilege has been applied, it is clear that the courts
understand the meaning of the term and see it as part of the law of Canada. However, the courts have been
reluctant to extend the immunity deriving from the rule of free speech beyond the context of parliamentary
proceedings. In other words, despite the fact that the role of a Member of the House of Commons has evolved
considerably since the seventeenth century when the rule was formulated in the Bill of Rights, the
courts have, with few exceptions, confined the scope of this immunity to the traditional role of Members as
debaters and legislators in Parliament. [118]
Importance of Freedom of Speech
Freedom of speech permits Members to speak freely in the Chamber during a sitting or in committees during
meetings while enjoying complete immunity from prosecution for any comment they might make. [119]
This freedom is essential for the effective working of the House. Under it, Members are able to make
statements or allegations about outside bodies or persons, which they may hesitate to make without the
protection of privilege. Though this is often criticized, the freedom to make allegations which the Member
genuinely believes at the time to be true, or at least worthy of investigation, is fundamental. As in courts
of justice, the House of Commons could not work effectively unless its Members were able to speak and
criticize without having to account to any outside body. There would be no freedom of speech if everything
had to be proven true before it were uttered. Speaker Bosley was required to rule on such a situation in
1984, following a question of privilege. [120]
While finding that there was no prima facie question of privilege, the Speaker affirmed that
“the privilege of a Member of Parliament when speaking in the House or in a committee is absolute,
and that it would be very difficult to find that any statement made under the cloak of parliamentary
privilege constituted a violation of that privilege.” [121]
Paraphrasing Speaker Michener, he went on to note that, unless such conduct has led to the obstruction of
other Members or of the House, “the conduct of a Member of Parliament even though reprehensible,
cannot form the basis of a question of privilege although it can form the basis of a charge by way of a
substantive motion… .” [122]
It should be borne in mind that this right is also extended to individuals summoned to appear before the
House or its committees. [123]
Limitations on Freedom of Speech
Remarks Made Outside of Debate
The privilege of freedom of speech is not limitless and grey areas remain. Members may be confident of the
protection given to their speeches in the House and other formal proceedings, but can never be certain how
far their freedom of speech and parliamentary action extends. [124]
The parliamentary privilege of freedom of speech applies to a Member’s speech in the House and other
proceedings of the House itself, but may not apply to reports of proceedings or debates published by
newspapers or others outside Parliament. Parliamentary privilege may not protect a Member publishing his or
her own speech separate from the official record. [125]
Members are therefore cautioned that utterances which are absolutely privileged when made within a
parliamentary proceeding may not be when repeated in another context, such as in a press release, a
householder mailing, a telegram, on an Internet site, a television or radio interview, at a public meeting
or in the constituency office. Members also act at their peril when they transmit otherwise libellous
material for purposes unconnected with a parliamentary proceeding. Thus, comments made by a Member at a
function as an elected representative — but outside the forum of Parliament— would not be covered
by this special privilege, even if the Member were quoting from his or her own speech in the Debates
of the House of Commons. [126]
Telecommunications, including new technology such as electronic mail, facsimile machines and the Internet,
should therefore not be used to transmit otherwise libellous material.
The publication of libellous material has been considered by most courts to be beyond the privileges of
Parliament when such publication was not part of the parliamentary process to begin with. [127]
Courts take a distinctly “functional” approach to the interpretation of parliamentary privilege
by relating any novel situation in which a Member may become involved back to the function and purpose that
parliamentary privilege was originally intended to serve: the need for Members of Parliament to be able to
fearlessly debate issues of public policy in Parliament. Thus even correspondence between one Member and
another on a matter of public policy may not be considered to be privileged. [128]
Misuse of Freedom of Speech
The privilege of freedom of speech is an extremely powerful immunity and Speakers have on occasion had to
caution Members about its misuse. In a ruling following a question of privilege, [129]
Speaker Fraser urged Members to take the greatest care in framing questions concerning conflict of interest
guidelines. Since the question raised affected the very nature of Members’ rights and immunities, he
spoke at length about the importance of freedom of speech and the need for care in what Members said:
There are only two kinds of institutions in this land to which this awesome and far-reaching privilege [of
freedom of speech] extends — Parliament and the legislatures on the one hand and the courts on the
other. These institutions enjoy the protection of absolute privilege because of the overriding need to
ensure that the truth can be told, that any questions can be asked, and that debate can be free and
uninhibited. Absolute privilege ensures that those performing their legitimate functions in these vital
institutions of Government shall not be exposed to the possibility of legal action. This is necessary in
the national interest and has been considered necessary under our democratic system for hundreds of years.
It allows our judicial system and our parliamentary system to operate free of any hindrance.
Such a privilege confers grave responsibilities on those who are protected by it. By that I mean
specifically the Hon. Members of this place. The consequences of its abuse can be terrible. Innocent people
could be slandered with no redress available to them. Reputations could be destroyed on the basis of false
rumour. All Hon. Members are conscious of the care they must exercise in availing themselves of their
absolute privilege of freedom of speech. That is why there are long-standing practices and traditions
observed in this House to counter the potential for abuse. [130]
In a ruling following a point of order, Speaker Parent also emphasized the need for Members to use great
care in exercising their right to speak freely in the House: “ … paramount to our political and
parliamentary systems is the principle of freedom of speech, a member’s right to stand in this House
unhindered to speak his or her mind. However when debate in the House centres on sensitive issues, as it
often does, I would expect that members would always bear in mind the possible effects of their statements
and hence be prudent in their tone and choice of words”. [131]
Speakers have also stated that although there is a need for Members to express their opinions openly in a
direct fashion, it is also important that citizens’ reputations are not unfairly attacked. In a
ruling on a question of privilege, [132]
Speaker Fraser expressed his concern that an individual who was not a Member of the House had been referred
to by name and noted that this concern had also been shared by some Members who had participated in the
discussion of the question of privilege. He then went on to say: “But we are living in a day when
anything said in this place is said right across the country and that is why I have said before and why I
say again that care ought to be exercised, keeping in mind that the great privilege we do have ought not to
be abused.”
In a later ruling following a point of order, [133]
Speaker Fraser observed that the use of suggestive language or innuendo with regard to individuals or an
individual’s associations with others can provoke an angry response which inevitably leads the House
into disorder. The Speaker stated that he was heartened by Members’ comments and a general sense of
the necessity to maintain decorum, for the sake of the House and the viewing public. Specifically referring
to individuals outside the Chamber, he agreed with a suggestion that the House consider constraining itself
“ … in making comments about someone outside this Chamber which would in fact be defamatory
under the laws of our country if made outside the Chamber… .” [134]
Sub judice Convention
There are other limitations to the privilege of freedom of speech, most notably the sub judice
convention. [135]
It is accepted practice that, in the interests of justice and fair play, certain restrictions should be
placed on the freedom of Members of Parliament to make reference in the course of debate to matters awaiting
judicial decisions and that such matters should not be the subject of motions or questions in the House.
Though loosely defined, the interpretation of this convention is left to the Speaker. The word
“convention” is used as no “rule” exists to prevent Parliament from discussing a
matter which is sub judice (“under the consideration of a judge or court of record”).
The acceptance of a restriction is a voluntary restraint on the part of the House to protect an accused
person or other party to a court action or judicial inquiry from suffering any prejudicial effect from
public discussion of the issue. [136]
While certain precedents exist for the guidance of the Chair, no attempt has ever been made to codify the
practice in Canada. [137]
The sub judice convention is important in the conduct of business in the House. It protects the
rights of interested parties before the courts, and preserves and maintains the separation and mutual
respect between the legislature and the judiciary. The convention ensures that a balance is created between
the need for a separate, impartial judiciary and free speech.
The practice has evolved so that it is the Speaker who decides what jurisdiction the Chair has over matters
sub judice. In 1977, the First Report of the Special Committee on the Rights and Immunities of
Members [138]
recommended that the imposition of the convention should be done with discretion and, when there was any
doubt in the mind of the Chair, a presumption should exist in favour of allowing debate and against the
application of the convention. Since the presentation of the report, Speakers have followed these guidelines
while using discretion.
Authority of the Speaker
A further limitation on the freedom of speech of Members is provided by the authority of the Speaker under
the Standing Orders to preserve order and decorum, and when necessary to order a Member to resume his or
her seat if engaged in irrelevance or repetition in debate, or to name a Member for disregarding the
authority of the Chair and order him or her to withdraw. [139]
Freedom from Arrest in Civil Actions
Freedom from arrest in civil actions [140]
is the oldest privilege of the House of Commons, pre-dating freedom of speech in the United Kingdom. [141]
The immunity exists because the House has the pre-eminent claim to the attendance and service of its
Members, free from restraint or intimidation particularly by means of legal arrest in civil process. It has
only applied to arrest and imprisonment under civil process and does not interfere with the administration
of criminal justice. It is not claimable for any incident having a criminal character or a criminal nature,
for treason, felony, [142]
breach of the peace, matters including criminal offences under federal statutes, breaches of provincial
statutes (considered quasi-criminal) which involve the summary jurisdiction of the Criminal Code, [143]
or any indictable offence. [144]
It goes without saying that if Members are charged with infractions of the law, then they must abide by
the due process of law just like any other citizen. To do otherwise would be contemptful of the justice
system. While a Member is protected from arrest for civil contempt of court, there is no protection from
arrest for criminal contempt of court. [145]
If a Member is arrested on a criminal charge or is committed for a contempt of court, the House should be
notified by the authorities if it is in session. If a Member is committed for high treason or any criminal
offence, the House is informed by way of a letter addressed to the Speaker by the judge or magistrate. [146]
Whatever privilege of freedom from arrest a Member may claim, it exists from the moment of the execution
of the return of the writ of election by the returning officer. It continues while the House is sitting
and also applies 40 days before and after a session of Parliament and 40 days after a dissolution of
Parliament. [147]
Exemption from Jury Duty
Since the House of Commons has first claim on the attendance and service of its Members, and since the
courts have a large body of individuals to call upon to serve on juries, it is not essential that Members
of Parliament be obliged to serve as jurors. This was the tradition in the United Kingdom long before
Confederation and this has been the Canadian practice since 1867. [148]
The duty of Members to attend to their functions as elected representatives is in the best interests of the
nation and is considered to supersede any obligation to serve as jurors. It has also been recognized in law. [149]
One of the rights of the House is to provide for the protection of its officers so that they may assist
in its deliberations. Therefore, officers of the House are exempt from jury duty under the same
circumstances as Members, as are individuals summoned to appear before the House or its committees. [150]
Exemption from Appearing as a Witness
The right of the House to the attendance and service of its Members exempts a Member, when the House is
in session, [151]
from the normal obligation of a citizen to comply with a subpoena to attend a court as a witness. [152]
This exemption applies in civil, criminal and military matters before the courts. [153]
However, this claim is not intended to be used to impede the course of justice and, therefore, is regularly
waived, particularly for criminal cases. [154]
When the House is in session, should a subpoena be served on a Member, the Member may wish to appear in
court where he or she feels that absence from court might affect the course of justice. However, the Member
still has a right to claim the privilege of exemption from appearing as a witness. [155]
A Member may give evidence voluntarily without any formality, even on a day when the House is sitting or
scheduled to meet, [156]
but if he or she does so, no claim of privilege may be made and the Member is required to give evidence. [157]
If a subpoena is to be served in a Member’s parliamentary office, the permission of the Speaker must
be sought in advance. This was most forcefully stated by Speaker Fraser in a ruling given in May 1989,
following a question of privilege raised by David Kilgour (Edmonton–Strathcona) involving the rights
of Members appearing as witnesses in court. [158]
In his submission, Mr. Kilgour stated that in March 1989, while Parliament was prorogued, a subpoena
authorized by a British Columbia Supreme Court Justice was served on him in his Centre Block office in
connection with a defamation action then under way. Much correspondence followed, including a letter from
the Law Clerk and Parliamentary Counsel of the House of Commons in which the Member’s right to be
exempt from attending as a witness in a court of law was affirmed. Subsequent to a letter from one of the
counsel indicating that Mr. Kilgour was ordered by the Judge to appear, the Member complied and attended in
the Kelowna Court. Mr. Kilgour refused to give evidence upon being questioned, and just prior to his being
cited for contempt, the counsel for the plaintiff withdrew the subpoena. [159]
In his ruling, Speaker Fraser spoke first about the manner in which the subpoena had been served on the
Member and noted that since the permission of the Speaker had not been sought nor obtained for this service,
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”. [160]
With regard to the privilege of exemption from attending as a witness in a court of law, the Speaker pointed
out that although Parliament was prorogued, according to May and Bourinot, the Member’s
immunity persisted throughout this period. However, since Mr. Kilgour had accepted to attend in the court,
he had essentially waived that privilege. The Speaker noted: “By waiving his privilege, being sworn
and answering some questions, he appears to have voluntarily submitted to the jurisdiction of the court.
Once this privilege is waived, the Member surrenders the protection implicit in it.” The Speaker had
been very disturbed by the fact that the counsel for the plaintiff in this case had questioned Mr. Kilgour’s
right “to claim his parliamentary immunity, alleging that this was a matter for the court to
decide”. He then stated “ … for the record that the right of a Member of Parliament to
refuse to attend court as a witness during a parliamentary session and during the 40 days preceding and
following a parliamentary session is an undoubted and inalienable right supported by a host of precedents”.
He urged Members “ … to refuse to accept any writ of summons within the precincts and to report
to the Speaker should such an attempt be made”.
Just as in the case of jury service, House officials or individuals summoned to appear before the House or
its committees are also exempt from appearing as witnesses if their services are needed by the House. [161]
Freedom from Obstruction, Interference, Intimidation and Molestation
Members are entitled to go about their parliamentary business undisturbed. The assaulting, menacing, or
insulting of any Member on the floor of the House or while he is coming or going to or from the House, or
on account of his behaviour during a proceeding in Parliament, is a violation of the rights of Parliament.
Any form of intimidation (it is a crime to commit “an act of violence in order to intimidate the
Parliament of Canada”) of a person for or on account of his behaviour during a proceeding in
Parliament could amount to contempt. [162]
Members of Parliament, by the nature of their office and the variety of work they are called upon to perform,
come into contact with a wide range of individuals and groups. Members can, therefore, be subject to all
manner of influences, some legitimate and some not. Certain matters, most notably bribery, the acceptance of
fees and corrupt electoral practices are dealt with in law. [163]
Over the years, Members have brought to the attention of the House instances which they believed were
attempts to obstruct, impede, interfere, intimidate or molest them, their staffs or individuals who had
some business with them or the House. In a technical sense, such actions are considered to be contempts of
the House and not breaches of privilege. [164]
Since these matters relate so closely to the right of the House to the services of its Members, they are
often considered to be breaches of privilege.
Speakers have consistently upheld the right of the House to the services of its Members free from
intimidation, obstruction and interference. Following a question of privilege, Speaker Lamoureux ruled that,
while in the particular case before him there was no prima facie question of privilege, he had
“ … no hesitation in reaffirming the principle that parliamentary privilege includes the right
of a member to discharge his responsibilities as a member of the House free from threats or attempts at
intimidation”. [165]
In ruling on another question of privilege, Speaker Bosley stated further that the threat or attempt at
intimidation cannot be hypothetical, but must be real or have occurred. [166]
Physical Obstruction, Assault and Molestation
In circumstances where Members claim to be directly obstructed, impeded, interfered with or intimidated in
the performance of their parliamentary duties, the Speaker is apt to find that a prima facie breach
of privilege has occurred. This may be physical obstruction, assault or molestation.
On October 30, 1989, Speaker Fraser ruled that a prima facie case of privilege existed when Herb
Gray (Windsor West) raised a question of privilege, claiming that a RCMP roadblock on Parliament Hill,
meant to contain demonstrators, constituted a breach of Members’ privileges by denying them access to
the House of Commons. [167]
On February 17, 1999, a number of questions of privilege were raised resulting from picket lines set up by
members of the Public Service Alliance of Canada at strategic locations of entry to Parliament Hill and at
entrances to specific buildings used by parliamentarians. Jim Pankiw (Saskatoon–Humboldt) in his
submission stated that the strikers had used physical violence and intimidation to stop him from gaining
access to his office. On this matter, Speaker Parent ruled immediately that there was a prima facie
case of privilege. Mr. Pankiw moved that the matter of his molestation be referred to the Standing Committee
on Procedure and House Affairs and it was agreed to without debate. [168]
Other questions of privilege, raised by John Reynolds (West Vancouver–Sunshine Coast), Roy Bailey
(Souris–Moose Mountain) and Garry Breitkreuz (Yorkton–Melville), focussed on the difficulties
Members had had in gaining access to their offices. The picket lines, it was claimed, impeded Members from
performing their duties and meeting their obligations as Members of Parliament in a timely fashion. The
next day, noting that the Speaker is the guardian of the rights of Members, Speaker Parent stated in his
ruling that he had been persuaded by the interventions made by the three Members who had raised the matter
and had decided that their concerns were sufficiently serious for the Chair to act. Therefore, he found
that the incident of the previous day of impeding access to the parliamentary precinct constituted a
prima facie case of contempt of the House and invited Mr. Reynolds to move the appropriate motion.
The Member moved that the matter be referred to the Standing Committee on Procedure and House Affairs, and
the motion was adopted without debate. [169]
Other Examples of Obstruction, Interference and Intimidation
The unjust damaging of a Member’s good name might also be seen as constituting an obstruction. In
ruling on a question of privilege, [170]
Speaker Fraser stated: “The privileges of a Member are violated by any action which might impede him
or her in the fulfilment of his or her duties and functions. It is obvious that the unjust damaging of a
reputation could constitute such an impediment. The normal course of a Member who felt himself or herself
to be defamed would be the same as that available to any other citizen, recourse to the courts under the
laws of defamation with the possibility of damages to substitute for the harm that might be done. However,
should the alleged defamation take place on the floor of the House, this recourse is not available.” [171]
In finding a prima facie case of privilege on March 21, 1978, Speaker Jerome ruled that the
electronic surveillance of a Member beyond the parliamentary precinct “ … could be regarded as
a form of harassment or obstruction or molestation or intimidation of a Member, all of which phrases have
been used in our precedents to support the position that such conduct is a contempt of the House.” [172]
On May 6, 1985, Speaker Bosley ruled that there was a prima facie question of privilege in a case
where a newspaper advertisement identified another person as a Member of Parliament rather than the sitting
Member. [173]
He stated: “It should go without saying that a Member of Parliament needs to perform his functions
effectively and that anything tending to cause confusion as to a Member’s identity creates the
possibility of an impediment to the fulfilment of that Member’s functions. Any action which impedes or
tends to impede a Member in the discharge of his duties is a breach of privilege. There are ample citations
and precedents to bear this out.” [174]
On December 6, 1978, in finding that a prima facie contempt of the House existed, Speaker Jerome
ruled that a government official, by deliberately misleading a Minister, had impeded a Member in the
performance of his duties and consequently obstructed the House itself. [175]
In another example involving a government official, Speaker Francis found a prima facie case of
privilege involving the intimidation of an employee of a Member. In a ruling given on February 20, 1984,
the Speaker stated: “A threat emanating from any government department or public corporation to
withhold information or co-operation from a Member of Parliament would undoubtedly hinder that Member in
the fulfilment of his or her parliamentary duties and therefore constitute a breach of privilege. By the
same token, an offer of favourable treatment on condition that questions are first cleared with the office
concerned would also violate privilege in an equally fundamental way… . It is therefore the view of
the Chair that an action which amounts to a form of intimidation does not need to be directed at the Member
in person in order to constitute an offence in terms of privilege.” [176]
Just as prima facie cases of privilege have been found for the intimidation of Members and their
staff, the intimidation of a committee witness was also found to be prima facie contempt by Speaker
Fraser on December 4, 1992. The matter was referred by the House to the Standing Committee on House
Management for consideration. [177]
The Committee presented its Sixty-Fifth Report to the House on February 18, 1993, and the Report was
concurred in by the House on February 25. [178]
In its report, the Committee reaffirmed the principles of parliamentary privilege and the extension of
privilege to witnesses. The report stated: “The protection of witnesses is a fundamental aspect of the
privilege that extends to parliamentary proceedings and those persons who participate in them. It is well
established in the Parliament of Canada, as in the British Parliament, that witnesses before committees
share the same privileges of freedom of speech as do Members. Witnesses before parliamentary committees are
therefore automatically extended the same immunities from civil or criminal proceedings as Members for
anything that they say before a committee… . The protection of witnesses extends to threats made
against them or intimidation with respect to their presentations before any parliamentary committee.” [179]
Intimidation of the Speaker and Other Chair Occupants
As with the intimidation of a Member or witness, the intimidation or attempted intimidation of the Speaker or
any other Chair occupant is viewed very seriously by the House. On three occasions, the House has viewed
criticisms of the impartiality of the Chair as attempts at intimidation and, therefore, as privilege matters. [180]
On December 22, 1976, the House adopted a motion finding that a statement made in a newspaper article about
Speaker Jerome was a gross libel on the Speaker and that the publication of the article was a gross breach
of the privileges of the House. [181]
On March 23, 1993, Speaker Fraser ruled that a question of privilege regarding comments on the impartiality
of a Chair occupant by a Member of the House was a prima facie case of privilege, noting that an
attack against the integrity of an officer of the House was also an attack against the House. [182]
On March 9, 1998, Peter MacKay (Pictou–Antigonish–Guysborough) rose on a question of privilege
to claim that quotations attributed to certain Members of the House in a newspaper article constituted an
attempt to intimidate the Speaker and, collectively, the House. The Member was concerned that comments,
attributed by the media to Members about matters which were before the Chair for adjudication and suggesting
that if the Speaker ruled a particular way he should be removed, were attempting to influence the ruling of
the Chair. Speaker Parent ruled that there was a prima facie case of privilege. [183]
Constituency or Politically Related Instances
In instances where Members have claimed that they have been obstructed or harassed, not directly in their
roles as elected representatives but while being involved in matters of a political or constituency-related
nature, Speakers have consistently ruled that this does not constitute privilege.
On July 15, 1980, in finding that there was no prima facie case of privilege in relation to a
Member’s constituency work, Speaker Sauvé stated: “While I am only too aware of the
multiple responsibilities, duties, and also the work the member has to do relating to his constituency, as
Speaker I am required to consider only those matters which affect the member’s parliamentary work.
That is to say, whatever duty a member has to his constituents, before a valid question of privilege arises
in respect of any alleged interference, such interference must relate to the member’s parliamentary
duties. In other words, just as a member is protected from anything he does while taking part in a
proceeding in Parliament, so too must an interference relate to the member’s role in the context of
parliamentary work.” [184]
This view was further reinforced in a ruling given on November 17, 1987, by Speaker Fraser, following a
question of privilege on a matter involving the staff of a Member, a constituent, and an officer of the
Correctional Services. The Speaker ruled that there was no prima facie case of privilege explaining
“ … I am sure Hon. Members will appreciate that this matter does not fall within the restricted
scope of the concept of parliamentary privilege… . Indeed, I can go further and state that even
without the direct involvement of the staff person and with the direct involvement of the Member himself,
I could not find that a prima facie case of privilege exists.” [185]
Importance of Relationship to Parliamentary Duties
In some cases where prima facie privilege has not been found, the rulings have focussed on whether
or not the parliamentary duties of the Member were directly involved. While frequently noting that Members
raising such matters might have legitimate complaints, Speakers have regularly concluded that Members have
not been prevented from performing their parliamentary duties. The following cases illustrate this.
In two 1978 cases, the Speaker ruled that since the Members’ parliamentary duties had not been
directly infringed upon, no prima facie breach of privilege existed. In the first case, involving
Ron Huntington (Capilano), the Speaker had difficulty in accepting that the Member’s complaint
concerning a civil suit brought against him constituted harassment or obstruction in the narrow sense and
further expressed concern about extending the definition of privilege. In ruling that he could find no
prima facie case of privilege, Speaker Jerome noted: “It seems quite clear that this matter
has caused the member certain difficulties in the performance of his duties as a member of parliament, but
I have trouble in accepting the argument that these difficulties constitute obstruction or harassment in
the narrow sense in which one must construe the privilege of freedom from molestation, particularly in the
face of what must be construed as being ordinary access to the courts of the land, which surely ought to be
something parliament would interfere with only upon the most grave and serious grounds.” [186]
The second 1978 case was raised by Simma Holt (Vancouver–Kingsway) on November 2, 1978. In ruling that
there was no prima facie question of privilege, Speaker Jerome stated: “Since the member was
not in the circumstances acting in the official capacities which are surrounded by privilege — that
very narrow category — it would, I think, be unwarranted extension of the precedents to extend
privilege with respect to an act which was directed to her person in the circumstances”. [187]
In ruling, the Speaker noted that society demands much of Members but not all demands strictly impose a
parliamentary duty. Every Member has duties as a representative of the electorate. A Member may only claim
the protection of privilege relating to his or her parliamentary duties, “particularly in his primary
duty or service to this House of Commons here”, though the line distinguishing these duties might
blur. However, as Maingot has pointed out, while assaults on Members that occur outside the
precinct and that are unrelated to the Member’s parliamentary duties do not amount to contempt, the
same assault occurring within the precinct, yet unrelated to a proceeding in Parliament, would constitute
contempt of the House. [188]
On May 15, 1985, Douglas Frith (Sudbury) rose on a question of privilege claiming that his ability to
serve his constituents was being infringed or impeded by a departmental directive restricting the release
of information about a government program. In ruling that, while the Member did have a complaint, there was
no prima facie question of privilege, Speaker Bosley noted that the purpose of parliamentary
privilege was to protect freedom of speech in the House and to protect the institution from threats,
obstructions and intimidations. [189]
Again on May 1, 1986, Speaker Bosley ruled that there was no prima facie case of privilege on a
matter raised by Sheila Copps (Hamilton East). Reiterating the reasons invoked in previous rulings, the
Speaker stated: “If an Hon. Member is impeded or obstructed in the performance of his or her
parliamentary duties through threats, intimidation, bribery attempts or other improper behaviour, such a
case would fall within the limits of parliamentary privilege. Should an Hon. Member be able to say that
something has happened which prevented him or her from performing functions, that he or she has been
threatened, intimidated, or in any way unduly influenced, there would be a case for the Chair to consider.” [190]
On December 9, 1986, in ruling on a question of privilege raised by Nelson Riis (Kamloops–Shuswap),
claiming that the information provided by the government at a press conference concerning a bill not yet
introduced in the House amounted to a breach of privilege, Speaker Fraser stated that in no way had the
actions of the Minister impeded or obstructed any Member in the discharge of his or her duties. [191]
On March 24, 1994, Speaker Parent ruled on a question of privilege raised by Jag Bhaduria
(Markham–Whitchurch–Stouffville) who had claimed he was being intimidated by the media and had
received blackmail threats as a result of media reports concerning the authenticity of the Member’s
academic credentials. In finding that there was no prima facie question of privilege, the Speaker
stated: “Threats of blackmail or intimidation of a Member of Parliament should never be taken lightly.
When such occurs, the very essence of free speech is undermined. Without the guarantee of freedom of speech,
no Member of Parliament can do his duty as is expected… . While the Chair does not in any way make
light of the specifics that have been raised… I cannot, however, say that he has sufficiently
demonstrated that a case of intimidation exists such that his ability to function as a member of Parliament
has been impeded.” [192]
In another instance involving written questions on the Order Paper, John Williams (St. Albert)
claimed that an unnamed official in the office of the Leader of the Government in the House had deliberately
tried to interfere with the Member by denying him a response to his questions. Based on quotations by the
media, the Member claimed that the official’s “arrogance and insolence… in the face of
Parliament” were contemptuous. In a ruling given on May 6, 1996, Speaker Parent noted:
“ … it is very difficult to accept the veracity of the remarks allegedly made by an unidentified
person in the government House leader’s office. As such, I cannot find that the member has been
obstructed in performing his duties and hence there is no question of privilege.” [193]
Rights of the House as a Collectivity
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.
Power to Discipline
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]
Regulation of Internal Affairs
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 Authority to Maintain the Attendance and Service of its Members
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 Rights to Institute Inquiries, to Require the Attendance of Witnesses and to Order the Production of Documents
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 to Administer Oaths to Witnesses
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 Right to Publish Papers Containing Defamatory Material
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.
The Inherent Limitations of Privilege
The collective privileges of the House of Commons and the individual privileges of its Members are
subject to limitations. The courts have certain powers to delineate the rights claimed by Parliament, and
statutory law has been used in some Parliaments to codify these rights, immunities and privileges. This
section will examine the role of the courts in limiting privilege, the impact of codifying privilege into
statutory law, and the relationship between privilege and the Constitution.
The Impact of the Courts on Privilege
It is frequently stated that Parliament is the highest court in the land. This is true in that it is the
high court of public opinion where the concerns of the electorate are voiced by their chosen
representatives. It is also true that, in the medieval period, the English Parliament had a judicial role,
where Parliament was seen primarily as a court of justice, the High Court of Parliament, a court of last
resort consisting of the King and the lords temporal. [243]
This role has all but disappeared in the United Kingdom. [244]
The Canadian Parliament has never had a judicial role. [245]
The privileges enjoyed by Parliament are a part of the general and public law of Canada. As such, the
courts may judicially take notice of and interpret these privileges as they would any branch of law, as
noted in the Parliament of Canada Act:
The privileges, immunities and powers held, enjoyed and exercised in accordance with section 4 are part
of the general and public law of Canada and it is not necessary to plead them but they shall, in all
courts in Canada, and by and before all judges, be taken notice of judicially. [246]
A unique characteristic of privilege is that, although it may not appear to be the case, the rights and
immunities claimed by elected representatives are controlled in large part by the courts. Though Parliament
lays claim to sole control of its privileges, such claims have gone largely unchallenged because both
courts and Parliaments are reluctant to deal definitively with such matters. However, in cases where
privileges of Parliament have been challenged, the courts have on occasion more narrowly defined the
privileges while on other occasions have supported the rights of Parliament. Thus, to some extent, the
courts may determine or defend what are the privileges of Parliament. [247]
A part of the justification for the privileges of the United Kingdom’s Parliament has rested upon
the analogy with judicial practice. [248]
A court has privileges auxiliary to the due execution of its powers. Just as witnesses and judges must
speak freely, be protected from molestation and be released from other conflicting tasks and obligations,
so it might be thought necessary to make similar provisions for “the Court of Parliament, the first
and the highest court in the kingdom”. [249]
The extensive power to punish contempts has a judicial flavour and origin in the United Kingdom, yet in
reality the English Parliament in the twentieth century is not a court. [250]
It has been British practice that where the House commits an individual to prison for contempt without
stating the grounds, or commits generally, it appears that the courts will not inquire into the nature of
the contempt. [251]
However, where facts are stated in the warrant, the courts would be free to inquire into the grounds and,
in suitable cases, declare the committals to be defective as arbitrary or unrelated to any known privilege
of the House. [252]
Codification: The Australian Case
In order to alleviate some of the uncertainty traditionally inherent in the exercise of their
privileges, some Parliaments based on the Westminster model have opted to codify their privileges. [253]
In 1987, the Australian Parliament passed legislation declaring, clarifying and substantially changing its
law of parliamentary privilege. [254]
Partly in consequence of the legislation, the Australian Senate passed a series of resolutions substantially
codifying its practices in matters related to privilege. [255]
The Australian Parliament, finding that the courts were severely restricting its freedom of speech,
enacted statutory remedies to protect its proceedings. The Australian Parliamentary Privileges Act 1987
provides definitions for a number of concepts including contempt. By restricting the category of actions
which may be treated as contempts, the Act could be seen as either limiting the right of action of either
Australian House or of opening up the actions of both Houses to judicial interpretation. For example, a
person punished for a contempt of Parliament could bring an action to attempt to establish that the conduct
for which he or she was punished did not fall within the statutory definition. This could lead to a court
overturning a punishment imposed by a House for contempt of Parliament. [256]
A number of concerns have been expressed in relation to the Australian statutory definition of privilege:
the right of a House to expel a Member or the protection of witnesses before committees might be challenged
in court; [257]
the statute might unduly restrict the rights of litigants and defendants in using evidence given before
parliamentary committees for the purposes of their court proceedings; the resulting statutory interpretation
would further restrict the powers and immunities of Parliament; affirming privileges in statute would
result in challenges to the right of the public and the media to comment on what happens in Parliament; [258]
and should serious problems arise, they may be corrected only by further codification of the law through
legislative amendment. [259]
As the function of the courts is to consider and apply statutes, not to investigate the proceedings leading
to the passage of laws, it has been seen that both the courts and Parliament have expressed the need to
avoid conflict in interpreting the scope of privilege. [260]
Codification: The United Kingdom Experience
Where Australia has opted to legislate codification of privilege, the United Kingdom has not, though it
continues to review its practice and has altered its way of dealing with matters of privilege. The whole
scope and application of privilege was reviewed by the Select Committee on Parliamentary Privilege in
1967-68; re-examined again in the Third Report of the same Committee in 1976-77; and revisited by the Joint
Committee on Parliamentary Privilege in 1998-99. Prior to the 1967-68 Committee’s appointment, some
concern had been expressed about the number of occasions when criticisms had been raised in the House of
breaches of privilege or contempt regarding relatively trivial matters. [261]
Having examined all aspects of privilege in the House, the 1967-68 Committee came down against any major
changes in the law of privilege, especially the suggestion that jurisdiction in privilege cases should be
transferred to the courts through statute. [262]
The Committee did recommend that legislation be promoted to extend and clarify the scope of privilege. [263]
It also recommended a number of significant reforms in the way privilege complaints should be considered. [264]
It modified the procedure for their examination and, to a certain extent, codified procedures for dealing
with matters of privilege. [265]
Other reforms served to bring the House’s formal rules into line with the practice of nearly 200 years. [266]
The 1976-77 Committee re-examined the findings of the earlier committee and recommended the adoption of
many of its recommendations. [267]
In his memorandum to the British Select Committee in 1976-77, the Clerk of the House cautioned against too
rigidly codifying the House’s options in dealing with matters of privilege. He wrote:
It would be a mistake first and foremost because it would introduce an element of inflexibility into the
manner in which the House upholds its privileges and punishes contempts. It is true that the House would
be in no danger of abridging its privileges or powers by a mere resolution setting out the sort of cases
upon which it normally proposed to act. But formulas which may appear precise and faultless at the time at
which they are drafted, may be found to be defective at a later stage owing to some undiscovered loophole
or developments which could not be envisaged at an earlier stage. It would certainly seem undesirable to
have to ask the House to amend its resolutions on privileges with any frequency. [268]
Following the 1976-77 Report, the focus of the House in such matters appeared to shift to the conduct of
Members. Allegations of misconduct by Members of the British House were dealt with as matters of conduct or
standards and not as privilege. The development of the Register of Members’ Interests
institutionalized this approach, and this continued into the 1990s with the first report of the Committee
of Privileges in 1994-95 and the Nolan Committee on Standards in Public Life which led to the establishment
of the Select Committee on Standards in Public Life. This Committee made a number of recommendations
pertaining to Members’ conduct which resulted in the adoption of a Code of Conduct for Members, the
remodelling of the Committee of Privileges as the Committee on Standards and Privileges, and the appointment
of a Parliamentary Commissioner for Standards. [269]
In the 1997-98 session, the British Parliament created a Joint Committee on Parliamentary Privilege with
the broad mandate to review parliamentary privilege and make recommendations. Reappointed with the same
terms of reference and membership in the 1998-99 session, the Committee presented its report to both Houses
on March 30, 1999, and made a number of recommendations calling for the codification of various matters of
privilege in statutory law. [270]
The Committee recommended that “place out of Parliament” and “proceedings in Parliament”
be defined in statute and that Members of both Houses be included within the scope of forthcoming
legislation on corruption. It called for the codification in statute of contempt of Parliament, for the
abolition of Parliament’s power to imprison for contempt and for the transfer of Parliament’s
penal powers over non-Members to the courts. It recommended the termination of Members’ exemption
from attendance in court as witnesses and the abolition of Members’ freedom from arrest in civil
cases. It also recommended the replacement of the Parliamentary Papers Act 1840 by a modern statute
and suggested that a Parliamentary Privileges Act be passed bringing together all the changes in the law it
recommended and codifying parliamentary privilege as a whole.
Privilege and the Constitution [271]
Section 18 of the Constitution Act, 1867 provides that Parliament may not confer on itself any
greater privileges than those enjoyed at the time by the House of Commons of the United Kingdom.
“Clearly the courts could not review the manner in which Parliament exercised its privileges, for
example, in punishing a person for contempt of Parliament. But it has long been held that the courts can
ascertain whether the privilege asserted by Parliament is one recognized by the law. Therefore, the courts
could in a proper case test any statute pursuant to Section 18 [of the Constitution Act, 1867] to
determine whether the privilege it created was one which the Canadian Parliament was entitled to claim for
itself. Such an issue might be raised by means of a reference or by proceedings such as habeas corpus,
or by damage actions on behalf of individuals who had suffered at the hand of Parliament in the exercise
of its alleged privileges.” [272]
The adoption of the Canadian Charter of Rights and Freedoms in 1982, “ushered in a flood of
constitutional litigation, gave Canadian courts a greater degree of superintendence over government, and
dramatically changed the form and forum of politics. It was thus inevitable that the Canadian legislative
assemblies and Houses of Parliament would become implicated in the Charter.” [273]
As part of the general and public law of Canada, [274]
parliamentary privilege, like any law, is now subject to the provisions of the Charter. [275]
In 1993, the Supreme Court of Canada in New Brunswick Broadcasting Co v. Nova Scotia (Speaker of the
House of Assembly) addressed the issue of whether and how the Charter applies to the
provincial legislative assemblies and their proceedings, which had a direct impact on the powers, privileges
and immunities of the House of Commons. [276]
Maingot summarizes the decision as follows:
The majority held that the act of the House of assembly in excluding television cameras from the public
galleries was an exercise of a constitutionally inherent privilege to exclude strangers from the House and
its precinct. The basis of this inherent privilege is the preamble to the Constitution Act, 1867 in context
of historical tradition and the pragmatic principle of necessity: the legislature must be presumed to
possess such constitutional powers as are necessary for its proper functioning.
The majority affirmed the existence of two categories of privilege: (1) constitutionally inherent privilege;
(2) privilege that is not constitutionally inherent. Both the Charter and the first category of privilege
are part of the Constitution. The first category of privilege is therefore not subject to judicial review
under the Charter, because one part of the Constitution may not abrogate another part of the Constitution.
Therefore, once it is established that the privilege is constitutionally inherent, as in this case, the
exercise of that privilege is not subject to judicial scrutiny. If, however, it is not so established, the
privilege is subject to such scrutiny. [277]
The situation is far from clear as to when the courts can and should review questions, which have primarily
been assigned by the Constitution or the law for decision by other instruments of government. “It is,
of course, clear that actions of both the executive and the legislative branches can be reviewed on
jurisdictional grounds. It is also clear that administrative law permits review of executive decisions on a
wide range of procedural grounds, but that substantive decisions may not be reviewed where the matter is
one clearly left in the discretion of the executive to decide. It is more dbatable to what extent Parliament’s
internal processes, and the exercise of its historic privileges with respect to determining its own
composition and the conduct of its members, can be reviewed.” [278]
Members’ Privileges and the Criminal Law
Privilege and the Criminal Code
The special privileges of Members never were intended to set them above the law; rather, the intention was
to give them certain exemptions from the law in order that they might properly execute the responsibilities
of their position. Members of Parliament are subject to the criminal law except in respect of words spoken
or acts done in the context of a parliamentary proceeding. However, it would be difficult to envisage a
criminal act which would fit into or be a part of a parliamentary proceeding. [279]
Therefore, it goes without saying that if Members are charged with infractions of the criminal law, they
must abide by the due process of law. To do otherwise would show contempt for the Canadian system of justice. [280]
In determining whether there is a prima facie breach of privilege, the Speaker must differentiate
between actions which directly affect Members in the performance of their duties, and actions which affect
Members but do not directly relate to the performance of their functions. For example, if a Member is
summoned to court for a traffic violation or if the income tax return of a Member is under investigation,
one might say at first glance that the Member may be hampered in the performance of his or her duties —
for the Member may have to defend himself or herself in court instead of attending to House or committee
duties. However, in these cases, the action brought against a Member is not initiated as a result of his or
her responsibilities as an elected representative, but rather as a result of actions taken by the Member
as a private individual. In these situations, the protection afforded by parliamentary privilege does not
and should not apply. [281]
Freedom from arrest has been confined to civil cases and does not entitle a Member to evade criminal law.
This is in accordance with the principle laid down by the British House of Commons in a conference with the
House of Lords in 1641 where it was stated: “Privilege of Parliament is granted in regard of the
service of the Commonwealth and is not to be used to the danger of the Commonwealth.” [282]
Any incident of a criminal nature in which a Member has been charged is not a matter where immunity from
arrest will protect that Member. [283]
Matters of a criminal nature would include treason, felonies, all indictable offences, forcible entries,
kidnapping, printing and publishing seditious libel, and criminal contempt of court (though not civil
contempt). [284]
Members cannot claim freedom from arrest or imprisonment on a criminal charge. A Member of the House of
Commons is in exactly the same position as any other citizen if he or she is suspected of, charged with, or
found guilty of a crime, provided that it is unrelated to proceedings in Parliament. [285]
In Canada, the 1965 case of Gilles Gregoire (Lapointe) would suggest that a Member could be arrested within
the precinct of Parliament with the permission of the House and that the grounds surrounding the Parliament
buildings do not constitute a part of the precinct of Parliament. [286]
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. [287]
It is not the precinct of Parliament but the function that the precinct serves which is sacred. [288]
The only special procedure relating to the arrest or the imprisonment of a Member of Parliament is that if
he or she is detained for any significant time (for example, if remanded in custody), the police or court
concerned must notify the Speaker. Similarly, if a Member is sent to prison after a conviction, the House
is informed. [289]
Thus, should the police arrest a Member outside the House on some criminal matter, the House of Commons is
not entitled to intervene. In Canada, the administration of justice is a provincial responsibility. The
Crown Attorney for the particular judicial district where the offence occurred would therefore prosecute
any breach of the Criminal Code. [290]
In its 1967 report, the British House of Commons Select Committee on Parliamentary Privilege noted that it
could see no reason why, unless the circumstances are exceptional, a Member should be able to claim immunity
from the normal process of the courts. [291]
The Execution of Search Warrants in the Precinct of Parliament
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”. [292]
It is well established that, by extension, the House has complete and sole authority to regulate and
administer its precinct, without outside interference.
As custodian of the rights and privileges of the House of Commons and head of its administrative structure,
the Speaker oversees the management of the precinct of the House. The Standing Orders delegate to the
Sergeant-at-Arms some duties and responsibilities in this regard, including the maintenance of order in the
galleries, corridors, lobbies and other areas of the House, and the arrest and custody of any person who
misconducts himself or herself while in the precinct of the House. [293]
The right of the House to control its precinct extends to considerations of security and policing. The
House of Commons maintains its own protective service, the House of Commons Security Service, under the
direction of the Sergeant-at-Arms. Beyond the precinct, the RCMP
is responsible for security on the grounds of Parliament Hill, [294]
as well as for the security of the Prime Minister and any visiting dignitary up to the entrance of the
Parliament Buildings. Inside the buildings, it then becomes the responsibility of the House of Commons
Security Service.
Authorization of the Speaker
Cases have arisen where representatives of outside police forces have wanted to enter the precinct of
Parliament for purposes of making an arrest, conducting an interrogation or executing a search warrant.
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.
This authority was established in two separate incidents which occurred in the 1970s. The first case
occurred in 1973 and involved Flora MacDonald (Kingston and the Islands). At that time, her parliamentary
office was visited by the Ottawa City Police and the RCMP,
who were inquiring about documents missing from the Department of Indian Affairs, without having 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 committee for study. 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.” [295]
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… .” [296]
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.
The second case occurred in 1979 and involved Terry Sergeant (Selkirk–Interlake). The Member raised
a question of privilege regarding a 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 permission from the Speaker to search Mr. Sergeant’s office, Speaker Jerome found
that there was no prima facie breach of privilege and indicated to the House that he had exercised
his discretion against 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.” [297]
In such cases, the Speaker is always in a difficult position: the Speaker must ensure that Members’
parliamentary privileges are protected without leaving the Speaker open to accusations of obstructing
justice. However, as Speaker Jerome explained in 1979, if no charge has been laid or there is no evidence
of an investigation against a Member, the Chair may exercise its discretion against the execution of a
warrant. If there is an allegation of an offence by a Member, and the enforcement of the charge necessitates
a warrant, the Speaker may give permission for its execution. [298]
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.
Investigation of Matters Involving Members’ Budgets and Services
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”. [299]
On May 29, 1990, the House unanimously approved the Special Committee’s Third Report. [300]
This Report dealt exclusively with procedures surrounding the execution of search warrants within the
parliamentary precinct. By unanimously adopting the report, the House reaffirmed the following principles
respecting the execution of search warrants:
- Well-established parliamentary tradition provides that search warrants may only be executed within
the precinct of Parliament 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. [301]
On June 1, 1990, the Committee presented its Fourth Report, which the House concurred in on the same day. [302]
The report contained proposed amendments to the Parliament of Canada Act, primarily dealing with
the Board of Internal Economy. It also proposed to prohibit any criminal process respecting the way Members
used House of Commons money, goods or services unless the authorities had previously requested and obtained
from the Board a ruling or opinion on the propriety of the Member’s action. [303]
In particular, the Special Committee wanted to ensure that Members would not be exposed to charges or
proceedings based on a misunderstanding of the nature of their work or the structure and rules of the House
of Commons.
On June 26, 1990, Bill C-79, An Act to amend the Parliament of Canada Act, was introduced, [304]
which closely followed the draft provisions of the Fourth Report. Bill C-79 was designed to give the Board
of Internal Economy exclusive authority to determine whether any past, present or proposed use of funds,
goods, services or premises available to Members had been, was or would be improper. The Bill received Royal
Assent on April 11, 1991. [305]
The Parliament of Canada Act empowers the Board to make by-laws governing the use by Members of
funds, goods, services and premises made available to them to carry out their parliamentary functions. [306]
The Board determines the terms and conditions of managing and accounting for such funds by the Members and
has exclusive authority to determine whether such use is or was proper. [307]
Members may request from the Board an opinion with respect to such use. [308]
In investigating the use by a Member of these funds, goods, services or premises, a law enforcement authority
may request the Board’s opinion whether such use is or was proper. [309]
The Board can respond by interpreting an existing by-law or regulation, or if none exists by examining the
issue. Similarly, the Board may provide the peace officer with an opinion on its own initiative. [310]
The Board has explicit authority to include in its opinions any comments that it considers relevant. [311]
A peace officer who receives an opinion and then makes an application for a criminal process is under an
obligation to place the opinion before a provincial court judge. [312]
The Board can also publish its opinions, in whole or in part, for the guidance of the Members, although the
Board must ensure that privacy is maintained. [313]
Execution of a Search Warrant Once Obtained
The criminal law of Canada provides for the execution of search warrants within the terms of the Criminal
Code. However, both parliamentary privilege and the criminal law are part of the general and public
law of Canada. The Speaker, therefore, 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 that the corporate
privilege of the House to administer its affairs within the precinct, as well as the privileges of
individual Members to participate freely in the proceedings, are not infringed. At the same time, the
Speaker must be careful not to obstruct the administration of criminal 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 would in the end 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. It has been established in law that the police
must produce a search warrant upon request so that an occupier of property may satisfy himself that the
search is lawful. [314]
Indeed, Section 29(1) of the Criminal Code provides that: “It is the duty of every one who
executes a process or warrant to have it with him, where it is feasible to do so, and to produce it when
requested to do so.”
An obvious 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 entering a particular Member’s office within the parliamentary precinct which
is to be searched, in order for the Speaker to be satisfied that the search is lawful.
It is essential to understand that 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. [315]
Essentially, the Speaker’s role in reviewing a search warrant is restricted to an examination based
on form and content.
Ultimately, a Member of the House of Commons is not “above the law”. The Member is, however,
entitled to the full protection of the law, including the application of both corporate and individual
parliamentary privilege and is subject to the criminal law and the protection it provides. Parliamentary
privilege is not the privilege of an élite group but rather a necessary component of what is required
for the Canadian electorate’s representatives to conduct public business on behalf of all Canadians
free from interference and intimidation.
Procedure for Dealing with Matters of Privilege
The House of Commons is certainly the most important secular body in Canada. It is said that each House
of Parliament is a “court” with respect to its own privileges and dignity and the privileges of
its Members. The purpose of raising matters of “privilege” in either House of Parliament is to
maintain the respect and credibility due to and required of each House in respect of these privileges, to
uphold its powers, and to enforce the enjoyment of the privileges of its Members. A genuine question of
privilege is therefore a serious matter not to be reckoned with lightly and accordingly ought to be rare,
and thus rarely raised in the House of Commons. [316]
Any claim that privilege has been infringed or a contempt committed is raised in the House by means of a
“question of privilege”. The procedure with respect to raising a question of privilege is
governed by both the Standing Orders and practice. A question of privilege is a matter for the House to
determine. The decision of the House on a question of privilege, like every other matter which the House
has to decide, can be elicited only by a question put from the Chair by the Speaker and resolved either
in the affirmative or in the negative, and this question is necessarily founded on a motion made by a Member.
This section will describe the manner in which such matters are dealt with by the House. [317]
(See Figure 3.1 at the end of this chapter depicting the path of a question of privilege from the time it
is raised until it is disposed of.)
Manner of Raising Matters of Privilege
Great importance is attached to matters involving privilege. A Member wishing to raise a question of
privilege in the House must first convince the Speaker that his or her concern is prima facie
(on the first impression or at first glance) a question of privilege. The function of the Speaker is limited
to deciding whether the matter is of such a character as to entitle the Member who has raised the question
to move a motion which will have priority over Orders of the Day; that is, in the Speaker’s opinion,
there is a prima facie question of privilege. If there is, the House must take the matter into
immediate consideration. [318]
Ultimately, it is the House which decides whether a breach of privilege or a contempt has been committed.
Matters relating to privilege may also arise in standing, special, legislative and joint committees,
and in a Committee of the Whole House. However, the procedures for dealing with such situations in
committee differ from the general procedure followed in the House.
If a Member believes that a breach of privilege or a contempt has occurred, but does not feel that the
matter should have priority in debate, the Member may follow an alternate route for bringing the matter
before the House. He or she may place a written notice of a motion on the Notice Paper.
In the House
A complaint on a matter of privilege must satisfy two conditions before it can be accorded precedence
over the Orders of the Day. First, the Speaker must be convinced that a prima facie case of
breach of privilege has been made and, second, the matter must be raised at the earliest opportunity. If
in the opinion of the Speaker these two conditions have been met, then the Speaker informs the House that,
in his or her opinion, this matter is entitled to take precedence over the notices of motions and Orders
of the Day standing on the Order Paper. The Speaker’s ruling does not extend to deciding
whether a breach of privilege has in fact been committed — a question which can only be decided by
the House itself.
Time of Raising and Notice Requirements
A question of privilege arising out of the proceedings during the course of a sitting may be raised
immediately without notice. However, Speakers have disallowed questions of privilege during Statements by
Members and Question Period, [319]
the process of Royal Assent, [320]
as well as during the Adjournment Proceedings, [321]
and divisions. [322]
In such circumstances, the question of privilege may be raised at the end of the time provided for such
business on that day. [323]
A matter of privilege related to the Adjournment Proceedings would be raised at the next sitting, following
the proper notification to the Speaker. [324]
A Member wishing to raise a question of privilege which does not arise out of the proceedings during the
course of a sitting must give notice before bringing the question to the attention of the House. The Member
must provide a written statement to the Speaker at least one hour before raising the question of privilege
in the House. If such notice is not given, the Speaker will not allow the Member to proceed. [325]
Speakers have also ruled that oral notice is neither necessary nor sufficient. [326]
Questions of privilege for which written notice has been given are raised at specific times, namely on the
opening of the sitting, following Routine Proceedings but before Orders of the Day, immediately after
Question Period, and, occasionally, during a debate.
The notice submitted to the Speaker should contain four elements:
- It should indicate that the Member is writing to give notice of his or her intention to raise a question
of privilege.
- It should state that the matter is being raised at the earliest opportunity. [327]
- It should indicate the substance of the matter that the Member proposes to raise by way of a question of
privilege. [328]
- It should include the text of the motion which the Member must be ready to propose to the House should
the Speaker rule that the matter is a prima facie case of privilege.
By providing the Chair with a context for the question of privilege and a proposed remedy for the problem,
the Member will assist the Speaker to deal with the issue in an informed and expeditious manner. The
inclusion of the text of the proposed motion allows the Speaker the opportunity to suggest changes to avoid
any procedural difficulties in the wording; otherwise, the Member might be prevented or delayed from moving
the motion should the Speaker rule the matter a prima facie question of privilege. [329]
Raising at the First Opportunity
The matter of privilege to be raised in the House must have recently arisen and must call for the immediate
action of the House. Therefore, Members must satisfy the Speaker that the matter has been raised at the
earliest opportunity. When a Member does not fulfil this important requirement, the Speaker has ruled that
the matter is not a prima facie question of privilege. [330]
In instances where more than one Member is involved in a question of privilege, the Speaker may postpone
discussion until all concerned Members can be present in the House. [331]
Multiple Notices
Should the Speaker receive more than one notice of a question of privilege, or should more than one Member
seek the floor on a specific question of privilege, the Speaker will determine the order in which the
Members will be recognized. [332]
Generally, the Speaker will recognize Members in the order in which the notices were received, or recognize
the first Member who catches the Speaker’s eye. If more than one matter is being raised, the Speaker
will hear Members on one question of privilege at a time.
Initial Discussion of Matter Raised
A Member recognized on a question of privilege is expected to be brief and concise in explaining the event
which has given rise to the question of privilege and the reasons why consideration of the event complained
of should be given precedence over other House business. [333]
Generally, the Member tries to provide the Chair with relevant references to the Standing Orders, precedents
and citations from procedural authorities. In addition, the Member demonstrates that the matter is being
brought to the House’s attention at the first opportunity. Finally, the Member should state what
corrective House action is being sought by way of remedy and indicate that, should the Speaker rule the
matter a prima facie question of privilege, he or she is prepared to move the appropriate motion. [334]
The Speaker will hear the Member and may permit others who are directly implicated in the matter to
intervene. The Speaker also has the discretion to seek the advice of other Members to help him or her in
determining whether there is prima facie a matter of privilege involved which would warrant giving
the matter priority of consideration over all other House business. When satisfied, the Speaker will
terminate the discussion. [335]
The decision as to the existence of a prima facie question of privilege belongs exclusively to
the Speaker who may take the matter under advisement to permit a considered judgement in all but the
clearest of cases. When a question of privilege has required an immediate decision of the Chair, the
Speaker has, without objection, suspended the sitting for a short time to deliberate on the matter, and has
then returned to the House with a ruling. [336]
In deliberating upon the matter, the Chair will take into account the extent to which the matter complained
of infringed upon any Member’s ability to perform his or her parliamentary duties or appears to be
a contempt against the dignity of Parliament.
If the Speaker is satisfied that the necessary conditions have been met and finds a prima facie
breach ofprivilege or contempt, the decision is announced to the House. As soon as the Chair has apprised
the House that a prima facie case of privilege has been found, the Member raising the matter is
immediately allowed to move a motion.
In the vast majority of cases, the Chair decides that a prima facie case of privilege was not
made. In informing the House of such a decision, the Chair customarily explains (often in some detail) the
factors which resulted in this finding. However, in such cases, the Chair will often acknowledge the
existence of a genuine grievance and may recommend avenues of redress. [337]
If the Speaker rules that there is not a prima facie question of privilege, the matter ends there.
However, if in the future additional information comes to light, the Member who raised the question of
privilege or any other Member may raise the matter again. [338]
Debate on a Privilege Motion
After the Speaker has decided that a matter is a prima facie question of privilege, it is left to
the Member raising the matter to move the appropriate motion; [339]
like all motions, it must be seconded. Occasionally, the Member will propose a motion at the end of his or
her arguments when initially raising the question of privilege. Under these circumstances, the Speaker may
advise the Member on the proper form of the motion. [340]
In cases where the motion is not known in advance, the Speaker may provide assistance to the Member if the
terms of the proposed motion are substantially different from the matter originally raised. [341]
The Speaker would be reluctant to allow a matter as important as a privilege motion to fail on the ground
of improper form. [342]
In Canadian practice, the terms of the motion have generally provided that the matter be referred to
committee for study or have been amended to that effect. [343]
Once the motion is properly moved and proposed to the House, it is subject to all the procedures and
practices relating to debate on a substantive motion. The speeches are limited to 20 minutes, followed by a
10-minute questions and comments period. [344]
Only the Prime Minister and the Leader of the Opposition are permitted unlimited debating time (with no
period for questions or comments). Members are subject to the rules of relevance and repetition and the
Speaker must ensure that the debate is focussed on the terms of the motion.
When the motion being considered touches on the conduct of a Member, he or she may make a statement in
explanation and then should withdraw from the Chamber. [345]
The Chair has interpreted “conduct” to refer to actions which, if proven, could result in the
expulsion of a Member from the House on the grounds that he or she is unfit for membership, as opposed to
actions which could lead to a Member being “named” by the Speaker. [346]
However, it is not always clear that Members whose conduct was under consideration actually withdrew from
the Chamber. [347]
In some circumstances, a Member may be allowed to return to the Chamber in order to clarify or explain
particular matters.
A privilege motion once under debate has priority over all Orders of the Day including Government Orders
and Private Members’ Business. However, the debate does not interfere with the regular holding of
Routine Proceedings, Statements by Members, Question Period, Royal Assent and the adjournment of the House. [348]
Once the privilege motion is before the House, it may be amended by the House, even if the amendment
results in the text of the motion differing from the one originally accepted by the Speaker and proposed to
the House. [349]
During the proceedings on a privilege motion, motions to adjourn the debate, to adjourn the House, or
to proceed to Orders of the Day are in order, [350]
as are motions for the previous question (“that this question be now put”), for the extension
of the sitting, or “that a Member be now heard”. However, should the previous question be
negatived, or a motion to proceed to Orders of the Day be adopted, then the privilege motion is superseded
and dropped from the Order Paper. Closure may also be moved on the privilege motion by a Minister. [351]
Should debate on a privilege motion not be completed by the time of adjournment, then on the next sitting
day the item will take priority over all other Orders of the Day and will appear on the Order Paper
before all other Orders of the Day. [352]
When debate has concluded on the motion, the Speaker will put the question to the House. If the motion is
adopted, then the terms of the motion will be implemented. If the motion is defeated, the proceedings are
ended. [353]
In Standing, Special, Legislative and Joint Committees
Since the House has not given its committees the power to punish any misconduct, breach of privilege, or
contempt directly, committees cannot decide such matters; they can only report them to the House. Only the
House can decide if an offence has been committed. [354]
Speakers have consistently ruled that, except in the most extreme situations, they will only hear questions
of privilege arising from committee proceedings upon presentation of a report from the committee which
directly deals with the matter and not as a question of privilege raised by an individual Member. [355]
Most matters which have been reported by committees concerned the behaviour of Members, witnesses or the
public. Committees have reported to the House on the refusal of witnesses to appear when summoned; [356]
the refusal of witnesses to answer questions; [357]
the refusal of witnesses to provide papers or records; [358]
the refusal of individuals to obey orders of a committee; [359]
and the divulging of events during an in camera meeting. [360]
Committees could report on instances of contempt, such as behaviour showing disrespect for the authority or
activities of a committee, the intimidation of members or witnesses, or witnesses refusing to be sworn or
lying to the committee.
Unlike the Speaker, the Chair of a committee does not have the power to censure disorder or decide
questions of privilege. Should a Member wish to raise a question of privilege in committee, or should some
event occur in committee which appears to be a breach of privilege or contempt, the Chair of the committee
will recognize the Member and hear the question of privilege, or in the case of some incident, suggest that
the committee deal with the matter. The Chair, however, has no authority to rule that a breach of privilege
or contempt has occurred. [361]
The role of the Chair in such instances is to determine whether the matter raised does in fact touch on
privilege and is not a point of order, a grievance or a matter of debate. If the Chair is of the opinion
that the Member’s interjection deals with a point of order, a grievance or a matter of debate, or that
the incident is within the powers of the committee to deal with, then the Chair will rule accordingly,
giving reasons. The committee cannot then consider the matter further as a question of privilege. Should a
Member disagree with the Chair’s decision, then the Member can appeal to the committee, which can
sustain or overturn the Chair’s decision.
If in the opinion of the Chair the issue raised relates to privilege (or if an appeal should overturn a
Chair’s decision that it does not touch on privilege), then the committee can proceed to the
consideration of a report on the matter to the House. [362]
The Chair will then entertain a motion which will form the text of the report. It should clearly describe
the situation, summarize the events, name any individuals involved, indicate that privilege may be involved
or that a contempt may have occurred, and request the House to take some action. [363]
The motion is debatable and amendable, and will have priority of consideration in the committee. If the
committee decides that the matter should be reported to the House, it will adopt the report which will be
presented to the House at the appropriate time during the Daily Routine of Business.
Once the report has been presented, the House is formally seized of the matter. [364]
After having given the appropriate notice, [365]
any Member may then raise the matter as a question of privilege. The Speaker will hear the question of
privilege and may hear other Members on the matter, before ruling on the prima facie nature of the
question of privilege. As Speaker Fraser noted in a ruling, “ … the Chair is not judging
the issue. Only the House itself can do that. The Chair simply decides on the basis of the evidence
presented whether the matter is one which should take priority over other business.” [366]
Should the Speaker rule the matter a prima facie question of privilege, the next step would be for
the Member who raised the question of privilege to propose a motion asking the House to take some action. [367]
Should the Speaker rule that there is no prima facie question of privilege, no priority would be
given to the matter. As with any committee report, any Member may still seek concurrence in the report by
following the normal procedures during the Daily Routine of Business. [368]
In a Committee of the Whole
Given that the House infrequently sits as a Committee of the Whole, and that when it does, the proceedings
are typically completed in a matter of minutes, questions of privilege are not often raised today in a
Committee of the Whole. [369]
The practice regarding the raising of questions of privilege in a Committee of the Whole is virtually
identical to that for standing, special, or legislative committees.
When the House sits as a Committee of the Whole, a Member may raise a question of privilege only on matters
which have occurred in the Committee. The question of privilege must be relevant to the proceedings in the
Committee. A Member may not raise as a question of privilege matters affecting the privileges of the House
in general or something which has occurred outside the Chamber. In a Committee of the Whole, a Member
wishing to raise a question of privilege about something that does not concern the Committee may move a
motion that the Committee rise and report progress in order that the Speaker may hear the question of
privilege. [370]
If the motion is adopted, the Chairman will rise and report to the Speaker who will then hear the Member. [371]
If a Member rises on a question of privilege which is relevant to the proceedings in a Committee of the
Whole, the Chairman will hear the question of privilege. As in a standing, special, or legislative
committee, the role of the Chairman is to decide whether the matter raised does in fact relate to privilege. [372]
Again, that decision may be appealed. However, such an appeal is not to the Committee of the Whole, but
rather to the Speaker. [373]
If the matter raised by the Member touches on privilege and relates to events in the Committee of the Whole,
the Chairman will entertain a motion that the events be reported to the House. The motion is debatable and
amendable, and has priority of consideration in the Committee. If the Committee agrees to report the matter,
the Chairman then rises, the Speaker resumes the Chair and the Chairman reports. [374]
The text of the report to the House should summarize the events, indicate that privilege may be involved,
and include a request for the Committee to sit again to consider its business. [375]
Only after the Chairman has reported to the House, may the matter be properly brought before the House and
the Speaker deal with it. A Member should rise on a question of privilege and put the matter before the
Speaker, who may allow interventions on the matter. When satisfied, the Speaker will rule whether or not it
is a prima facie question of privilege. If a prima facie case of privilege is found, the
Member may move a motion dealing with the matter. [376]
If the Speaker finds that there is no prima facie question of privilege, then the House will resume
its regular business. Under “Orders of the Day”, the House may sit again as a Committee of the
Whole to resume consideration of the matter originally before it, or the House may proceed to another Order
of the Day.
The Speaker will entertain a question of privilege in regard to a matter that occurred in a Committee of
the Whole only if the matter has been dealt with first in the Committee of the Whole and reported
accordingly to the House. [377]
By Way of Written Notice on the Notice Paper
If a Member believes that a breach of privilege or a contempt has occurred, but does not feel that
the matter should have priority in debate, in a procedure very rarely resorted to, the Member may place a
written notice of motion on the Notice Paper. In this instance, at the conclusion of the required
notice period, the motion is placed under the appropriate heading on the Order Paper. When
sponsored by a Minister, the motion requires a 48 hours’ notice period and will be considered by the
House when called under Government Orders. [378]
When sponsored by a private Member, the motion requires a notice period of two weeks and will be placed
under Private Members’ Business. [379]
However, following the appropriate notice period, the Member in whose name the item stands may decide to
seek priority in debate for the motion (e.g., if new information were to come to light). The Member must
then seek to convince the Speaker that the matter raised in the motion should be considered a prima
facie question of privilege. In such a case, the Member would be required to notify the Speaker at
least one hour before raising the matter in the House. [380]
Historically, there have been a number of occasions when Members have chosen to give written notice of
their motions of privilege, particularly in cases where the matter stemmed from events occurring outside
the House. In 1874, for instance, a motion for which written notice had been given, and which was not likely
to arise on a particular day, was taken up before its turn, displacing scheduled business. [381]
A similar case in 1886 saw a motion taken up before its turn at the request of the Member attacked in the motion. [382]
Yet, it was not always so easy and, in two rare cases in 1892, motions for which written notice had been
given were refused precedence as the Speaker judged them not to contain true matters of privilege. [383]
Furthermore, in cases involving a motion amounting to a charge against a Member, etiquette required that
the sponsor of such a motion privately advise the Member concerned when the motion would be moved. [384]
These practices endured into the twentieth century, and oral and written notices, although not required,
were both common when questions of privilege were raised. In 1911, for example, a matter of privilege was
raised following oral notice, [385]
while in 1932, a motion regarding charges which had been made against the Prime Minister was taken up after
written notice had been given. [386]
There were other cases where matters were raised without any notice. [387]
Eventually, an attempt was made to convince the Speaker to take a notice of motion out of sequence because
it appeared to involve privilege. In June 1959, the Leader of the Opposition gave notice of a motion in
which he questioned the conduct of a Member on the government side. The Speaker, who had not ruled on
whether or not it should be given precedence, sought the advice of the House. [388]
After a lengthy discussion on this point, the Speaker was able to arrive at the conclusion, in keeping with
the recently established criteria guiding Speakers on questions of privilege, that, prima facie,
no matter of privilege appeared to exist and that therefore he would not allow other business to be set
aside to debate the motion. [389]
As a result, the motion stayed on the Order Paper and was never reached.
A written notice of motion, dealing with an alleged contempt of the House, was placed on the Notice
Paper on February 27, 1996. The text of the motion, sponsored by Don Boudria (Glengarry–Prescott–Russell),
accused Ray Speaker (Lethbridge) of attempting to put pressure on the Speaker to recognize the Reform
Party as the Official Opposition. The motion further declared that this constituted a contempt of
Parliament and ordered that the Member for Lethbridge be admonished at the Bar of the House by the Chair.
The motion had been placed on the Order Paper under Private Members’ Business [390]
and had subsequently been chosen for debate after a random draw on March 4, 1996. The Standing Committee on
Procedure and House Affairs had not, however, selected the motion to come to a vote.
On May 9, 1996, the day before the motion would, in accordance with the order of precedence for Private
Members’ Business, be called for debate, Mr. Speaker (Lethbridge) raised a point of order in the
House to question whether a motion which was not votable could be used to make a charge against another
Member. The Acting Speaker informed the House that the motion would not be called the next day because
Mr. Boudria could not be present, and that in the meantime the Chair would consider the point of order. [391]
On June 18, 1996, Speaker Parent ruled that the motion was procedurally acceptable under the rules for
Private Members’ Business. He stated, “The hon. Member is quite correct in his assertion that
the conduct of a member can be brought before the House only by way of a specific charge contained in a
substantive motion. Often, in such cases, members will choose to raise the matter on the floor of the
House without giving the required 48-hour or two-week notice and ask the Speaker to give it priority or
right of way for immediate consideration by the House, thus putting all other regular House business
aside… . In the current circumstances, I find that the rules for Private Members’ Business
have been followed and that there is therefore no point of order.” [392]
The Chair also noted that it did not have the authority to make the motion votable. He further pointed out
that there were “procedures at the disposal of the House to ensure that a sense of fair play prevails
in all its proceedings”. [393]
The Member for Lethbridge immediately raised a question of privilege which would provide a way of resolving
the charge made against him by permitting the matter to come to a vote. He argued that allowing the charge
to remain unresolved would seriously affect his reputation. After hearing from other Members, the Speaker
reserved his decision. [394]
When he returned to the question on June 20, 1996, the Speaker reminded the House that motions regarding the
conduct of Members had in the past been placed on the Order Paper under Private Members’
Business without ever being voted on by the House. Although he could not find there was a prima facie
question of privilege, the Speaker suggested that the Member consider pursuing the matter of the non-votable
motion with the Standing Committee on Procedure and House Affairs. [395]
On October 23, 1996, the Speaker announced to the House that Mr. Boudria had advised the Chair in writing
that he could no longer move private Members’ motions because of his recent appointment to Cabinet.
The Speaker, who has the duty under the Standing Orders of making arrangements for the orderly conduct of
Private Members’ Business, thus directed that Mr. Boudria’s motion be removed from the
Order Paper. [396]
Committee Consideration of Privilege Matter
If the terms of the privilege motion stipulate that the matter be referred to the Standing Committee on
Procedure and House Affairs, then the adoption of the motion by the House constitutes an order of reference
to the Committee. The Standing Orders empower the Committee to enquire into all such matters referred to it
and to send for persons, papers and records. While the Committee is free to determine its own agenda, both
the Committee and the House take such enquiries very seriously. The Committee does not have the power to
punish. This power rests with the House. The Committee may only study the matter and report to the House.
The conduct of the Committee in investigating a privilege matter is the same as for other business
considered by any committee of the House, though the nature of the order of reference would encourage the
Committee to proceed cautiously. [397]
Committee Report
The form of a report of the Standing Committee on Procedure and House Affairs on a matter of privilege is
no different from a report of any other committee of the House on a substantive matter. It may or may not
contain recommendations for action or punishment [398]
and, if the Committee so orders, it may also have appended to it dissenting or supplementary opinions or
recommendations. [399]
Frequently, the report itself may be sufficient to put an end to the matter and no further action is
required by the House. [400]
A report may, on the other hand, recommend that the Speaker take some action or that some administrative
action be taken. [401]
Just as with most committee reports, following appropriate notice, a Member may move for concurrence which
the House may debate. [402]
A Matter of “Personal Privilege”
The Chair may occasionally grant leave to a Member to explain a matter of a personal nature although there
is no question before the House. [403]
This is commonly referred to by Members as “a point of personal privilege” and is an indulgence
granted by the Chair. There is no connection to a question of privilege, and as Speaker Fraser once noted,
“There is no legal authority, procedural or otherwise, historic or precedential, that allows this.” [404]
Consequently, such occasions are not meant to be used for general debate, and Members have been cautioned
to confine their remarks to the point they wish to make. [405]
The Speaker has also stated that, as these are generally personal statements and not questions of privilege,
no other Members will be recognized to speak on the matter. [406]
Members have used this procedure to make personal explanations, [407]
to correct errors made in debate, [408]
to apologize to the House, [409]
to thank the House or acknowledge something done for the Member by the House, [410]
to announce a change in party affiliation, [411]
to announce a resignation, [412]
or for some other reason. [413]