Chapter 3Privileges and Immunities

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 certain 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.⁵

These “rights” can be divided into two categories: those extended to Members individually, and those extended to the House collectively. Each category can be further divided. 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 being subpoenaed to attend court as a witness; and
freedom from obstruction, interference, intimidation and molestation.

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

the exclusive right to regulate its own internal affairs (including its debates, proceedings and facilities);
the power to discipline; that is, the right to punish persons guilty of breaches of privilege or contempts, and the power to expel Members guilty of disgraceful conduct;
the right to provide for its proper constitution, including 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 appearing before it; and
the right to publish papers without recourse to the courts relating to the content.

The privileges of Members of the House of Commons provide the absolute immunity they require to perform their parliamentary work, while the collective or corporate rights of the House are the necessary means by which the House effectively discharges its functions.⁶ Privilege commences from the time of the Member’s official existence, which is at the moment the deputy returning officer completes the return of the writ with the name of the candidate who received the most votes in a general election or a by-election.⁷

The House has the authority to assert 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. Members are not outside or above the law which governs all citizens of Canada. While some privileges seem to provide immunity from the application of certain laws, parliamentary privilege forms part of the general law of Canada.⁸ The privileges of the Commons are designed to safeguard the rights of each and every elector.⁹ 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.¹⁰ May states:

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.¹¹

Privilege essentially belongs to the House as a whole; individual Members can claim privilege only 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.¹²

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 asserted as the extent of necessary privileges has varied over the centuries.¹³ 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.¹⁴ No one House of Parliament has a right to claim for itself new privileges; new privileges can be created or old privileges extended only by an Act of Parliament.¹⁵ Either House can apply its rights to new circumstances.¹⁶ Finally, each House can individually adjudicate and punish breaches of its privileges.

5.: May, Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 24th ed., p. 203.
6.: Maingot, Parliamentary Privilege in Canada, 2nd ed., p. 15.
7.: Ibid., p. 155. While privilege commences on the date of the execution of the return of the writ and continues until Parliament is dissolved, some individual rights and immunities, such as the exemption from being subpoenaed to attend court, commence 40 days before a session and extend 40 days after a session. If the period between dissolution (or prorogation) and the commencement of the next session exceeds 80 days, there would be an interim period where these immunities would not be available to Members.
8.: Vaid, supra note 1 at para 29.3.
9.: This point was forcefully made by Sir Barnett Cocks, Clerk of the House of Commons of the United Kingdom, in a memorandum to the Select Committee on Parliamentary Privilege (United Kingdom, House of Commons, Select Committee on Parliamentary Privilege, Minutes of Evidence, November 23, 1966, p. 1).
10.: United Kingdom, House of Commons, Select Committee on Parliamentary Privilege, Minutes of Evidence, November 23, 1966, p. 1.
11.: Thomas Erskine May, Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 20th ed., ed. Sir Charles Gordon (London: Butterworths, 1983), pp. 70–1.
12.: John Aneurin Grey Griffith and Michael Ryle, Parliament: Functions, Practice and Procedures, 2nd ed., ed. Robert Blackburn and Andrew Kennon with Sir Michael Wheeler-Booth (London: Sweet & Maxwell, 2003), pp. 123–5.
13.: Vaid, supra note 1 at para 24.
14.: With the possible exception of the relinquishment of its power to try controverted elections, the Canadian House of Commons has never formally renounced any of the basic rights and immunities it claims for itself and its Members. See Sir John George Bourinot, Parliamentary Procedure and Practice in the Dominion of Canada, 4th ed., ed Thomas Barnard Flint (Toronto: Canada Law Book, 1916), pp. 122–7; Maingot, Parliamentary Privilege in Canada, 2nd ed., pp. 187–90; Dominion Controverted Elections Act, 1874, SC 1874, c 10. For further information on controverted elections, see Chapter 4, “The House of Commons and Its Members”. However, on a number of occasions, the House of Commons has considered whether or not to waive its privileges in particular circumstances. In 1891, the House of Commons waived its privileges to allow proceedings in one of its committees to be used to prosecute a witness who had appeared before it (Journals, April 12, 1892, pp. 234–5). In September 2012, the House of Commons waived its privileges in a matter concerning emails in the possession of the Auditor General’s Office pertaining to the Auditor General’s appearances before parliamentary committees. The emails formed part of an Access to Information Request which had been made to the Office of the Auditor General, since the House of Commons is not subject to such requests (Journals, September 17, 2012, p. 1918). The House of Commons has also refused to waive its privileges to allow committee transcripts to be used in a public inquiry to cross examine a witness for allegedly making contradictory statements (Journals, November 18, 2004, pp. 232–3), nor would it allow its proceedings to be used as a basis for disciplinary action against a Royal Canadian Mounted Police (RCMP) officer for her testimony before a committee (Journals, June 15, 2007, p. 1543). For further information, see the section in this chapter entitled “Waiving the Privilege of Freedom of Speech”. In British practice, the authors of May note that, since the 18th century, a number of privileges have been surrendered or modified, including most recently Members’ exemption from jury service (May, Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 24th ed., pp. 217–9).
15.: An example of the extension of privilege was the adoption by the British Parliament of the Parliamentary Papers Act, 1840 (UK) 3 & 4 Vict, c 9 [Parliamentary Papers Act, 1840] and the enactment by the Canadian Parliament of virtually the same provisions in 1868. The British legislation followed the famous Stockdale v Hansard (1839), 112 ER 1112 [Stockdale] case of 1837. The Act of 1840 provided that the publication of reports, papers, votes or proceedings of either House of Parliament by order was essential to the functions and duties of Parliament and thus privileged. The same provisions were adopted in Canada in 1868 as An Act to define the privileges, immunities and powers of the Senate and House of Commons, and to give summary protection to persons employed in the publication of Parliamentary Papers, SC 1868, c 23. This Act is now sections 7, 8 and 9 of the Parliament of Canada Act, RSC 1985, c P-1 [Parliament of Canada Act], and corresponds exactly to sections 1, 2 and 3 of the Parliamentary Papers Act, 1840. For a full discussion of the case and its consequences, see Maingot, Parliamentary Privilege in Canada, 2nd ed., pp. 63–75; May, Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 24th ed., pp. 225–7.
16.: The advent of the broadcasting of the proceedings of the House illustrates such an application. In the Donahoe case referred to later in this chapter, the Supreme Court affirmed that the Nova Scotia House of Assembly, in exercising its rights to control its internal proceedings and to exclude strangers from the House and its precinct, could exclude television cameras from its galleries (New Brunswick Broadcasting Co. v Nova Scotia (Speaker of the House of Assembly) [1993] 1 SCR 319 [New Brunswick Broadcasting Co.]).

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