Privilege Versus Contempt

It is important to distinguish between a “breach of privilege” and “contempt of Parliament”. 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.116 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.117 As the authors of Odgers’ Senate Practice (Australia) state: “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”.118 In that sense, all breaches of privilege are contempts of the House, but not all contempts are necessarily breaches of privilege.

The House of Commons enjoys very wide latitude in maintaining its dignity and authority through the exercise of its contempt power. In other words, the House may consider any misconduct to be contempt and may deal with it accordingly119. Instances of contempt in one Parliament may even be punished during another Parliament.120 This area of parliamentary law is therefore extremely fluid and most valuable for the Commons to be able to meet novel situations.

Throughout the Commonwealth most procedural authorities hold that contempts, as opposed to privileges, cannot be enumerated or categorized. 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”.121

The United Kingdom Joint Committee on Parliamentary Privilege attempted to provide a list of some types of contempt in its 1999 report:

  • interrupting or disturbing the proceedings of, or engaging in other misconduct in the presence of, the House or a committee;
  • assaulting, threatening, obstructing or intimidating a Member or officer of the House in the discharge of their duties;
  • deliberately attempting to mislead the House or a committee (by way of statement, evidence, or petition);
  • deliberately publishing a false or misleading report of the proceedings of the House or a committee;
  • removing, without authority, papers belonging to the House;
  • falsifying or altering any papers belonging to the House or formally submitted to a committee of the House;
  • deliberately altering, suppressing, concealing or destroying a paper required to be produced for the House or a committee;
  • without reasonable excuse, failing to attend before the House or a committee after being summoned to do so;
  • without reasonable excuse, refusing to answer a question or provide information or produce papers formally required by the House or a committee;
  • without reasonable excuse, disobeying a lawful order of the House or a committee;
  • interfering with or obstructing a person who is carrying out a lawful order of the House or a committee;
  • bribing or attempting to bribe a Member to influence the Member’s conduct in respect of proceedings of the House or a committee;
  • intimidating, preventing or hindering a witness from giving evidence or giving evidence in full to the House or a committee;
  • bribing or attempting to bribe a witness;
  • assaulting, threatening or disadvantaging a Member, or a former Member, on account of the Member’s conduct in Parliament; and
  • divulging or publishing the content of any report or evidence of a select committee before it has been reported to the House.122

In the case of Members, the Joint Committee also considered the following types of conduct to constitute contempt:

  • accepting a bribe intended to influence a Member’s conduct in respect of proceedings of the House or a committee;
  • acting in breach of any orders of the House; and
  • failing to fulfill any requirement of the House, as declared in a code of conduct or otherwise, relating to the possession, declaration, or registration of financial interests or participation in debate or other proceedings.123

Just as it is not possible to categorize or to delineate every incident which may fall under the definition of contempt, it is also difficult 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.124

By far, most of the cases of privilege raised in the House relate to matters of contempt challenging the perceived authority and dignity of Parliament and its Members.125 Other cases have involved charges made by a Member about another Member126 or media allegations concerning Members.127 The premature disclosure of committee reports and proceedings has frequently been raised as a matter of privilege,128 as has the provision of deliberately misleading information to the House or one of its committees by a Minister or by a Member129 and the provision of misleading testimony by a witness before a committee.130 Finally, the denial of access of Members to the Parliamentary Precinct has been found to constitute contempt of the House on several occasions.131 In those instances where no specific individual has been identified, the matter has not been pursued even though it might appear to involve contempt.132

The reluctance to invoke the House’s authority to reprimand or admonish 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. For example, in 1976, the Standing Committee on Privileges and Elections chastised a former Member (Auguste Choquette (Lotbinière)) who claimed that many parliamentarians had obtained undue financial considerations, but did not recommend any further consideration be given to the matter after concluding that his attitude was intemperate and irresponsible.133 In the 1987 Parry case where the Member divulged the result of an in camera vote, the Standing Committee on Elections, Privileges and Procedure also did not recommend punishment134 and the Member’s apology to the House put an end to the matter. In the 1996 Jacob case, the Standing Committee on Procedure and House Affairs noted that, while the Member’s actions were ill-advised, they did not amount to contempt or a breach of parliamentary privilege.135 In 2005, the Standing Committee on Procedure and House Affairs found “that the Ethics Commissioner was in contempt of the House of Commons” for his actions during the conduct of an inquiry, but did not recommend any sanctions or penalty because the actions were neither deliberate nor intended.136 In 2008, the House found the Deputy Commissioner of the Royal Canadian Mounted Police (RCMP) in contempt of the House but did not impose any punishment because “this finding of contempt is, in and of itself, a very serious sanction”.137

Though the power of the House to imprison remains in theory, it is difficult to foresee circumstances arising that would oblige the House to invoke it.138 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.139 There is, however, no doubt that the House of Commons remains capable of protecting itself from abuse should the occasion ever arise. This topic is discussed in greater detail in the section in this chapter entitled “Power to Discipline”.