Chapter 3Privileges and Immunities

Rights and Immunities of Individual Members

The extent of the rights, privileges and immunities of individual Members is limited by the Constitution. There is a recognized list that can only be expanded upon if it can be clearly demonstrated that the claimed privilege is necessary for Members to carry out their parliamentary functions. They could also be set out in statute, so long as the privilege is no greater than that which existed in the United Kingdom at Confederation.

The rights, privileges and immunities of individual Members of the House may be categorized as follows:

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.

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.¹⁴⁵

Much has been written about this over the centuries in Great Britain, Canada and throughout the Commonwealth.¹⁴⁶ In Odgers’ Australian Senate Practice, this privilege is expressed in broader terms as immunity of proceedings from impeachment and question in the courts.¹⁴⁷ It is also stated that this is the only immunity of substance possessed by the Houses of Parliament and their Members and committees.¹⁴⁸ Odgers asserts that 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.¹⁴⁹

A similar position has been adopted in Canada in a decision of the Commission of Inquiry into the Sponsorship Program and Advertising Activities which indicated that allowing transcripts from a committee to be used in a public inquiry to question witnesses could result in the proceedings in the committee being questioned or impeached. This decision was upheld by the Federal Court.¹⁵⁰

The right to freedom of speech is protected by the Constitution Act, 1867 and the Parliament of Canada Act.¹⁵¹ 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. Article 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”.¹⁵²

Generally considered to be an individual privilege, the courts have confirmed that freedom of speech is also a collective privilege of the House. Motions carried by the House are expressed collectively by its Members and therefore cannot be challenged in a court of law.¹⁵³

Proceedings in Parliament

The privilege of freedom of speech is generally regarded as being limited to “proceedings in Parliament”. No definition of “proceedings in Parliament” is contained in the English Bill of Rights and there is no statutory definition in Canada. May defines it as follows:

The primary meaning of proceedings, as a technical parliamentary term, which it had as least as early as the seventeenth century, is some formal action, usually a decision, taken by the House in its collective capacity. While business which involves actions and decisions of the House are clearly proceedings, debate is an intrinsic part of that process which is recognised by its inclusion in the formulation of article IX. An individual Member takes part in a proceeding usually by speech, but also by various recognized forms of formal action, such as voting, giving notice of a motion, or presenting a petition or 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. Members of the public also may take part in the proceedings of a House, for example by giving evidence before it or one of its committees, or by securing the presentation of a petition.¹⁵⁴

The Parliament of Australia 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–

the giving of evidence before a House or a committee, and evidence so given;
the presentation or submission of a document to a House or a committee;
the preparation of a document for purposes of or incidental to the transacting of any such business; and
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.¹⁵⁵

From the numerous court cases where the law of parliamentary privilege has been applied in Canada, 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 privilege 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 17th century when the rule was formulated in the Bill of Rights, 1689, the courts have, with few exceptions, confined the scope of this immunity to the traditional role of Members as debaters and legislators in Parliament.¹⁵⁶

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 or civil liability for any comment they might make.¹⁵⁷ 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 might 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. 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 was uttered. In ruling on a question of privilege in 1984, Speaker Bosley 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”.¹⁵⁸

This right is also extended to individuals who appear before the House or its committees in order to encourage truthful and complete disclosure, without fear of reprisal or other adverse actions as a result of their testimony. In 2005, the Federal Court of Appeal ruled that the testimony of parliamentary witnesses fell within the scope of parliamentary privilege because it is necessary for the functioning of Parliament for three reasons: “to encourage witnesses to speak openly before the Parliamentary committee, to allow the committee to exercise its investigative function and, in a more secondary way, to avoid contradictory findings of fact”.¹⁵⁹

In 2007, the Federal Court again recognized that a witness’s testimony before a House committee is protected by parliamentary privilege:

[A]lthough witnesses before a parliamentary committee are not Members of Parliament, they are not strangers to the House either. Rather they are guests who are afforded parliamentary privilege because, as with members, the privilege is necessary to ensure that they are able to speak openly, free from the fear that their words will be used against them in subsequent proceedings … .¹⁶⁰

The Court confirmed that parliamentary privilege “precludes other entities from holding Members of Parliament or witnesses before committees liable for statements made in the discharge of their functions in the House”.¹⁶¹

Although the testimony of a witness before a parliamentary committee is protected by parliamentary privilege, allegations that a witness has lied or misled a committee are taken seriously and may be pursued by the committee.¹⁶² If a committee determines that a witness has given untruthful testimony, it may report the matter to the House.¹⁶³ The House alone is responsible for deciding if the witness has deliberately misled the committee and is in contempt of the House, as well as for determining the appropriate punitive action.¹⁶⁴ If the House determines that a witness has lied while testifying under oath and the House deems it appropriate, it may waive its privileges over the testimony and refer the matter to the Crown to determine whether there is sufficient evidence to charge the witness with perjury for deliberately lying to a parliamentary committee.¹⁶⁵

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.¹⁶⁶ 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 fully apply to reports of proceedings or debates published by newspapers or others outside Parliament. Parliamentary privilege may not protect a Member republishing his or her own speech separate from the official record.

Members should be aware 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, on an Internet site, in a television or radio interview, at a public meeting or in the constituency office. Members also act at their peril when they transmit otherwise defamatory 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 likely not be covered by this privilege, even if the Member were quoting from his or her own speech made in a parliamentary proceeding.¹⁶⁷ Telecommunications, including technology such as electronic mail, and the Internet, should therefore not be used to transmit otherwise defamatory material.

The publication of defamatory 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.¹⁶⁸ Even correspondence between one Member and another on a matter of public policy may not be considered to be privileged.¹⁶⁹ 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. In 2006, the Federal Court confirmed that, since communications to constituents are not part of a parliamentary proceeding, they are not protected by parliamentary privilege.¹⁷⁰

Misuse of Freedom of Speech

The privilege of freedom of speech is an extremely powerful immunity and on occasion Speakers have had to caution Members about its misuse. Ruling on a question of privilege in 1987, Speaker Fraser spoke at length about the importance of freedom of speech and the need for care in what Members say:

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.¹⁷¹

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.¹⁷²

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 not be unfairly attacked. In a ruling on a question of privilege involving an individual who was not a Member of the House, Speaker Fraser expressed concern that the person had been referred to by name: “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”.¹⁷³ Speaker Milliken echoed this, stating:

It is incumbent upon all members to exercise fairness with respect to those who are not in a position to defend themselves.¹⁷⁴

Speaker Fraser also 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. 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”.¹⁷⁵ As Speaker Milliken noted in 2003:

Speakers discourage members of Parliament from using names in speeches if they are speaking ill of some other person because, with parliamentary privilege applying to what they say, anything that is damaging to the reputation or to the individual, … is then liable to be published with the cover of parliamentary privilege and the person is unable to bring any action in respect of those claims.¹⁷⁶

Sub judice Convention

There are other limitations to the privilege of freedom of speech, most notably the sub judice (under the consideration of a judge or court of record) convention.¹⁷⁷ 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. 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.¹⁷⁸ While certain precedents exist for the guidance of the Chair, no attempt has ever been made to codify the practice in the House of Commons.¹⁷⁹

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.¹⁸⁰ In 1977, the First Report of the Special Committee on the Rights and Immunities of Members 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.¹⁸¹ Since the presentation of the report, Speakers have followed these guidelines while using discretion.¹⁸²

In a 2013 ruling, Speaker Scheer addressed these issues:

As Speaker, I must endeavour to find a balance between the right of the House to debate a matter and the effect that this debate might have. This is particularly important given that the purpose of the sub judice convention is to ensure that judicial decisions can be made free of undue influence.

… in the case before us, while the sub judice convention does not prevent debate on the matter, the fact remains that the heart of this question of privilege is still before the courts, which have yet to make a finding. I believe that it would be prudent for the House to use caution in taking steps that could result in an investigatory process that would, in many ways, run parallel to the court proceedings, particularly given that the Minister of Justice and Attorney General of Canada is already a party to the court proceedings and would be a central figure in any consideration the House might give this matter.¹⁸³

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.¹⁸⁴

Waiving the Privilege of Freedom of Speech

The House determines how it exercises its privileges and if it wants to assert these privileges or not. There have been instances where the House has been asked to waive, in particular, its privilege of freedom of speech to allow its proceedings and transcripts of proceedings to be examined in courts or elsewhere. On two occasions, in 1892 and in 1978, at the request of a judicial body, the House chose not to insist on its privilege of freedom of speech.

In the late 1880s, Thomas McGreevy (Quebec West) was accused of abusing his position by taking bribes and offering to use his influence to help the firm of Larkin, Connolly & Co. secure a dredging contract for the harbour of Quebec City. The matter was referred to the Standing Committee on Privileges and Elections where Mr. McGreevy was asked about his relationship with the firm. The Member refused to answer. Mr. McGreevy was subsequently expelled from the House and charges of conspiracy were contemplated against both Mr. McGreevy and Nicholas Connolly, partner at Larkin, Connolly & Co. In order to obtain the warrant to formally charge the two men, the Crown prosecutor filed the transcripts of the committee evidence with the magistrate. The magistrate refused to consider the transcripts on the basis that the evidence was protected by parliamentary privilege. On a judicial review, the Ontario High Court of Justice upheld the magistrate’s decision; the High Court also indicated that the House could choose to waive its privileges. On April 12, 1892, the House of Commons resolved to allow the evidence to go before the magistrate, stipulating that in allowing this limited use, it was not giving up any of its privileges.¹⁸⁵

In 1978, the Standing Committee on Justice and Legal Affairs held hearings into alleged wrongdoings by members of the RCMP. In the course of its proceedings, certain witnesses requested and were granted permission to testify in camera. Months later, a commission of inquiry was established to investigate the allegations and in the course of its inquiry, the commission requested access to the tapes and transcripts of the in camera proceedings. On December 14, 1978, the House of Commons ordered that “the committee be authorized to make such evidence adduced in camera available to the Commission of Inquiry … under such terms as may be established by the Committee”.¹⁸⁶ The Committee was concerned about releasing its evidence given that it had assured the witnesses that they would be able to testify in camera. The Committee wrote to each of the witnesses requesting their permission to allow the commission to examine their testimony. Upon receipt of the witnesses’ permission, the Committee released the transcripts to the commission on the condition that they be examined in camera and returned to the Committee forthwith.

In 2004, the House of Commons was again asked to waive its privilege of freedom of speech. A commission of inquiry (known as the Gomery Inquiry after its Commissioner, Justice John Gomery) had been established to investigate and report on questions raised in the November 2003 Report of the Auditor General with respect to the sponsorship and advertising activities of the Government of Canada. Questions had arisen as to whether counsel at the Commission could cross-examine witnesses on the basis of their statements before the Standing Committee on Public Accounts during its hearings into the Report.¹⁸⁷ The Standing Committee on Public Accounts considered the request and presented a report to the House on the matter on November 5, 2004. The Committee recommended that the House resolve to reaffirm all of its privileges, powers and immunities as provided by section 18 of the Constitution Act, 1867, section 4 of the Parliament of Canada Act, and Article 9 of the Bill of Rights, 1689, as well as the extension of those privileges to committees of the House and to anyone participating in their proceedings. In addition, the Committee recommended that the question of when privilege may be waived, and whether it may be waived in the case of the Gomery Inquiry, be referred to the Standing Committee on Procedure and House Affairs. The House concurred in the report on November 15, 2004.¹⁸⁸ In its Fourteenth Report, presented to the House and concurred in on November 18, 2004, the Standing Committee on Procedure and House Affairs recommended that the privileges and immunities as set down in the Third Report of the Standing Committee on Public Accounts be reaffirmed and that the proceedings, evidence, submissions and testimony of all persons testifying before the said Committee continue to be protected by the House.¹⁸⁹ In particular, the Committee stated:

Some witnesses who appeared before the Standing Committee on Public Accounts were given written or oral assurances and others could assume that their testimony would be protected by parliamentary privilege. To withdraw such protection after the fact would be unfair to them as individuals. Moreover, as a matter of principle, it would be contrary to the best interests of Parliament and parliamentary rights. Members of Parliament and other persons participating in parliamentary proceedings must be assured that there is complete freedom of speech, so that they are able to be as open and forthright as possible.¹⁹⁰

In 2007, the House was again asked to waive its privilege of freedom of speech in order to allow the testimony of a witness, who had appeared before the Standing Committee on Public Accounts with respect to its inquiry into the administration of the RCMP’s pension and insurance plans, to be admitted as evidence in a criminal prosecution. The Committee considered the request and recommended that the House reaffirm “the parliamentary privileges and immunities of freedom of speech, which precludes the use of testimony before a parliamentary committee in any other legal proceeding or process, including investigations undertaken for possible criminal prosecution”. In addition, the Committee recommended that the House not waive parliamentary privilege in this particular case.¹⁹¹ The House concurred in the report the same day.¹⁹²

Similarly, in 2009, the Commission of Inquiry into Certain Allegations Respecting Business and Financial Dealings between Karlheinz Schreiber and the Right Honourable Brian Mulroney requested leave of the House of Commons to refer in Commission proceedings to testimony that was given before the Standing Committee on Access to Information, Privacy and Ethics. The Committee recommended that “… the privileges, immunities and proceedings and all evidence, submissions and testimony by all persons participating in the proceedings of the Standing Committee on Access to Information, Privacy and Ethics continue to be protected by all the privileges and immunities of this House…”. The House concurred in the Report¹⁹³ the day it was presented.

The Parliaments of the United Kingdom, Australia and New Zealand have each established committees to consider whether or not and to what extent a legislature could waive the protections of Article 9 of the Bill of Rights, 1689. All three committees concluded that, absent clear authority, the privileges could not or should not under any circumstances be waived:

The provisions of Article 9 are a matter of public importance and were enacted for the protection of the public interest and, absent statutory amendment, cannot be waived.
To allow waiver by a simple majority, the question could be open to abuse by a majority at the expense of a minority or a single Member.
A waiver could stifle free speech since at the time of testifying, the person will not know whether at some future date the protection of the privileges of the House will not be withdrawn.
A waiver could lead to further and more frequent requests for waivers.
The provisions of Article 9 not only constitutionally grant the right of free speech to the House but also constitutionally restrict the jurisdiction of courts and other places. It is not certain that the House alone, by waiving its privileges, can enlarge the constitutionally circumscribed jurisdiction of the courts.¹⁹⁴

Freedom from Arrest in Civil Actions

Freedom from arrest in civil actions is the oldest privilege of the House of Commons, predating freedom of speech in the United Kingdom.¹⁹⁵ 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 applied only to arrest and imprisonment under civil process and does not interfere with the administration of criminal justice.

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.¹⁹⁶ Indeed, Members are not above the 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”.¹⁹⁷ 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.¹⁹⁸

The right to freedom from interference in the discharge of parliamentary duties does not apply to actions taken by Members outside of parliamentary proceedings which could lead to criminal charges. Matters of a criminal nature would include treason, felonies, breaches of the peace, breaches of provincial statutes (considered quasi-criminal) which involve the summary jurisdiction of the Criminal Code, forcible entries, kidnapping, printing and publishing seditious libel, and criminal contempt of court (though not civil contempt). 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 a proceeding in Parliament.¹⁹⁹

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 contemptuous 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.²⁰⁰ 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.²⁰¹ Similarly, if a Member is sent to prison after a conviction, the House is informed by way of a letter addressed to the Speaker by the judge or magistrate.²⁰²

Whatever privilege of freedom from civil 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 following the dissolution of Parliament.²⁰³

Senior officials of the House whose duties require them to be in immediate attendance of the services of the House are exempt from civil arrest as are witnesses and other persons with business before the House while entering and leaving the premises and while in attendance at the proceedings of the House or one of its committees.²⁰⁴

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 1867.²⁰⁵ 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.²⁰⁶

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, senior officials 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.²⁰⁷

Exemption from Being Subpoenaed to Attend Court 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, from the normal obligation of a citizen to comply with a subpoena to attend a court as a witness.²⁰⁸ This exemption applies in civil, criminal and military matters before the courts.²⁰⁹ However, this claim is not intended to be used to impede the course of justice and, therefore, is regularly waived, particularly for criminal cases.²¹⁰ When the House is in session, should a subpoena or other legal process be served on a Member, the Member may wish to appear in court if the Member 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.²¹¹ A Member may give evidence voluntarily without any formality, even on a day when the House is sitting or scheduled to meet,²¹² but if he or she does so, the Member surrenders the protection this privilege provides.²¹³

Members are exempt from appearing as a witness in any court when the House is in session, 40 days before and after a session, and 40 days following a dissolution of Parliament.²¹⁴ This includes periods when Parliament is prorogued. Speaker Fraser reinforced this claim in a May 1989 ruling: “… 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”.²¹⁵

The courts have not always agreed with this viewpoint. In 2003, the matter of the extent of this privilege was the subject of a case before the courts in British Columbia and it was determined that the privilege does not extend beyond the session.²¹⁶ In 2007, the Quebec Court of Appeal upheld an earlier decision of the Quebec Superior Court which found that, while a Member has immunity from appearing as a witness when Parliament is in session, this immunity does not extend to a Member as a party to the litigation. Relying on the United Kingdom Parliamentary Privileges Act, 1770, the Court stated that the Member’s legal obligations had priority over his parliamentary responsibilities. Nonetheless, the Court urged the parties and the courts to try to schedule trial dates around the parliamentary calendar.²¹⁷

The position in Ontario is somewhat different. The courts in this province have accepted that the privilege extends for 40 days before and 40 days after each session.²¹⁸ The courts have also decided that the summons for an examination is equivalent to a subpoena for a witness and, therefore, the exemption period of 40 days before and after a session of Parliament applies.²¹⁹

Just as in the case of jury service, senior House officials or individuals summoned to appear before the House or its committees are also exempt from appearing as witnesses in court if their services are needed by the House.²²⁰

Freedom from Obstruction, Interference, Intimidation and Molestation

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 interference, obstruction and influences.

In order to fulfill their parliamentary duties, Members should be able to go about their parliamentary business undisturbed. Assaulting, threatening, or insulting a Member during a proceeding of Parliament, or while the Member is circulating within the Parliamentary Precinct, is a violation of the rights of Parliament. Any form of intimidation of a Member with respect to the Member’s actions during a proceeding in Parliament could amount to contempt.²²¹

Certain matters, most notably bribery, the acceptance of fees and corrupt electoral practices, are dealt with in law.²²² Over the years, Members have regularly 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.²²³ 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. Speaker Lamoureux stated in a 1973 ruling that 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”.²²⁴ As Speaker Bosley noted in 1986:

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.²²⁵

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.²²⁶

In order to find a prima facie breach of privilege, the Speaker must be satisfied that there is evidence to support the Member’s claim that he or she has been impeded in the performance of his or her parliamentary functions and that the matter is directly related to a proceeding in Parliament.²²⁷ In some cases where prima facie privilege has not been found, the rulings have focused on whether or not the parliamentary functions of the Member were directly involved. While frequently noting that Members raising such matters have legitimate grievances, Speakers have consistently concluded that Members have not been prevented from carrying out their parliamentary duties.²²⁸ Speaker Jerome observed in a 1978 ruling that society demands much of Members but not all demands strictly impose a parliamentary duty. While every Member has duties as a representative of the electorate, a Member may claim the protection of privilege relating only to his or her parliamentary functions, though the line distinguishing these duties might blur.²²⁹

Physical Obstruction, Assault and Molestation

In circumstances where Members claim to be physically obstructed, impeded, interfered with or intimidated in the performance of their parliamentary functions, the Speaker is apt to find that a prima facie breach of privilege has occurred.²³⁰

Incidents involving physical obstruction—such as traffic barriers, security cordons and union picket lines either impeding Members’ access to the Parliamentary Precinct or blocking their free movement within the precinct—as well as occurrences of physical assault or molestation have been found to be prima facie cases of privilege. For example, in 1989, Speaker Fraser ruled that a prima facie case of privilege existed when an RCMP roadblock on Parliament Hill, meant to contain demonstrators, prevented Members from accessing the House of Commons.²³¹ In 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. One Member 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 and the matter was referred to the Standing Committee on Procedure and House Affairs.²³² Other related questions of privilege focused on the difficulties some Members had had in gaining access to their offices, thus preventing them from performing their functions and meeting their obligations in a timely fashion. After consideration, Speaker Parent found that the incident constituted a prima facie case of contempt of the House and the matter was also referred to the Standing Committee on Procedure and House Affairs.²³³ In 2004, a question of privilege was raised regarding the free movement of Members within the Parliamentary Precinct during a visit by the President of the United States, George W. Bush. A number of Members complained that, in attempting to prevent protestors from gaining entrance to Parliament Hill, police had also denied certain Members access to the Parliamentary Precinct and thus prevented them from carrying out their parliamentary functions. Speaker Milliken found a prima facie case of privilege and the matter was referred to the Standing Committee on Procedure and House Affairs.²³⁴ Similar intances occurred during other state visits.²³⁵

Other Examples of Obstruction, Interference and Intimidation

A Member may also be obstructed or interfered with in the performance of his or her parliamentary functions by non-physical means. In ruling on such matters, the Speaker examines the effect the incident or event had on the Member’s ability to fulfill his or her parliamentary responsibilities. If, in the Speaker’s view, the Member was not obstructed in the performance of his or her parliamentary duties and functions, then a prima facie breach of privilege cannot be found.²³⁶

It is impossible to codify all incidents which might be interpreted as matters of obstruction, interference, molestation or intimidation and, as such, constitute prima facie cases of privilege. However, some matters found to be prima facie include the damaging of a Member’s reputation, the usurpation of the title of Member of Parliament, the intimidation of Members and their staff and of witnesses before committees, and the provision of misleading information.

The unjust damaging of a Member’s good name might be seen as constituting an obstruction if the Member is prevented from performing his or her parliamentary functions. In 1987, 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.²³⁷

There have been infrequent instances of the Speaker finding a prima facie breach of privilege related to damage to a Member’s reputation. Most were due to bulk mailings, being distributed in the Member’s riding. In April 2005, Speaker Milliken ruled that the reputation of Brian Masse (Windsor West) may have been unjustly damaged by a bulk mailing containing inaccurate and misleading information which had been distributed in Mr. Masse’s riding.²³⁸ In October 2005, the Speaker ruled that a prima facie breach of privilege had occurred after Denis Coderre (Bourassa) claimed that householders distributed in various Quebec ridings had damaged his reputation.²³⁹ In November 2009, the Speaker found two prima facie questions of privilege, raised by Peter Stoffer (Sackville—Eastern Shore) and Irwin Cotler (Mount Royal), related to the Members’ reputations being damaged by bulk mailings sent into their respective ridings by other Members.²⁴⁰ Ultimately, these cases prompted the Board of Internal Economy to limit the use of bulk mailings²⁴¹ to Members’ own ridings.

Also, in 2005, a prima facie breach of privilege was found with respect to comments made by the Ethics Commissioner to a journalist about Deepak Obhrai (Calgary East) who was the subject of an inquiry under the Conflict of Interest Code for Members of the House of Commons. The Member alleged that the comments had damaged his reputation, particularly since such inquiries were meant to be conducted in private. While hesitant to rule that the conduct of the Ethics Commissioner constituted a prima facie contempt of the House, particularly in the absence of a review and an assessment of the new Conflict of Interest Code, Speaker Milliken ruled the matter to be a prima facie breach of privilege in order to allow the House “to pronounce itself on how it wishes to proceed in this very delicate case”.²⁴²

In 2012, a question of privilege was raised concerning cybercampaigns targeting Vic Toews (Minister of Public Safety). Among other issues, Mr. Toews raised concerns about online videos containing threats against him, his family and other Members. On this point, the Speaker ruled that there was a prima facie question of privilege as the videos constituted an attack on the most fundamental privileges of the House. The House immediately referred the matter to the Standing Committee on Procedure and House Affairs.²⁴³

The misrepresentation of someone who is not a sitting Member as a Member of Parliament has been found to constitute a prima facie case of privilege on two occasions. 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. 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.²⁴⁴

In 2004, a similar question of privilege was raised concerning a booklet published in connection with a fundraising event and which contained an advertisement identifying a former Member of Parliament as the sitting Member for the riding. The matter was found to be a prima facie breach of the privileges of the House and was referred to the Standing Committee on Procedure and House Affairs.²⁴⁵

The intimidation by government officials of Members and their staff in carrying out their parliamentary functions has been considered a prima facie breach of privilege. In 1984, 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 cooperation 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.²⁴⁶

Just as prima facie cases of privilege have been found for the intimidation of Members and their staff, the intimidation of a committee witness has also been found to be a prima facie breach of privilege. In 1992, a witness who had testified before a subcommittee was advised by a Crown corporation employee that the issue of her testimony was being referred to the corporation’s legal department. The witness informed a Member, who raised a question of privilege in the House. The matter was found by Speaker Fraser to be prima facie contempt and was referred by the House to the Standing Committee on House Management for consideration.²⁴⁷ In its report to the House on the question of privilege, 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.²⁴⁸

Misleading a Minister or a Member has also been considered a form of obstruction and, thus, a prima facie breach of privilege. For example, 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 the Member in the performance of his duties and consequently obstructed the House itself.²⁴⁹

Finally, 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”.²⁵⁰

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.²⁵¹ 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 Mr. Speaker and that the publication of the article was a gross breach of the privileges of the House”.²⁵² On March 23, 1993, Speaker Fraser ruled that a Member’s comments about the impartiality of a Chair Occupant constituted 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.²⁵³ On March 9, 1998, a Member 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 the comments, attributed by the media to Members about matters which were before the Chair for adjudication and which implied that, if the Speaker ruled a particular way he should be removed from the chair, were attempting to influence his ruling. Speaker Parent ruled that there was a prima facie case of privilege.²⁵⁴

On March 24, 2014, a Member rose on a question of privilege claiming that sanctions imposed by the Russian government on 13 Canadians, including the Speaker of the House and Members of Parliament, were intended to punish, intimidate, and interfere with the functioning of the House of Commons and the ability of Members of Parliament to carry out their duties. The Speaker considered the matter closed when the House adopted a resolution denouncing the sanctions.²⁵⁵

Constituency-Related or Politically Related Instances

In instances where Members have claimed that they have been obstructed or harassed, not directly in their parliamentary roles, but while being involved in matters of a political or constituency-related nature, Speakers have consistently ruled that this does not constitute a prima facie case of privilege. On July 15, 1980, 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 interference relate to the member’s role in the context of parliamentary work.²⁵⁶

This view was further reinforced in a ruling given on May 15, 1985 by Speaker Bosley. Douglas Frith (Sudbury) had risen 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 “the purpose of parliamentary privilege is to protect our speech in the House, the institution itself, and the institution and Members from threats, obstructions and intimidation in the exercise of our duties”.²⁵⁷

The importance of the relationship of privilege to parliamentary functions was reaffirmed by Speaker Milliken in a ruling delivered on June 5, 2005. A question of privilege had been raised respecting the inability of a number of Members to communicate with their constituents because certain individuals and organizations opposed to the same-sex marriage legislation before the House were inundating the offices of these Members with computer-generated faxes and emails. Although he sympathized with the Members, agreeing that the large number of faxes and emails had interfered with the smooth functioning and orderly routine of their offices, the Speaker concluded nonetheless that he was unable to find that they were prevented from performing their parliamentary duties.²⁵⁸

Finally, Speaker Fraser confirmed in a ruling given on November 17, 1987 that parliamentary privilege does not extend to a Member’s staff working on constituency or political activities on behalf of that Member.²⁵⁹

145.: First Report of the Special Committee on Rights and Immunities of Members, presented to the House on April 29, 1977 (Journals, pp. 720–1). This right is also extended to witnesses appearing before parliamentary committees.
146.: May, Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 24th ed., pp. 222–40; Maingot, Parliamentary Privilege in Canada, 2nd ed., pp. 25–105, 115–23; Josef Redlich, The Procedure of the House of Commons: A Study of its History and Present Form, vol. III, transl. Alfred Ernest Steinthal (1908; repr., New York: AMS, 1969, pp. 42–50; Odgers, Australian Senate Practice, 13th ed., pp. 43–56; House of Representatives Practice, 6th ed., pp. 735–47.
147.: Odgers, Australian Senate Practice, 13th ed., p. 43.
148.: Ibid.
149.: Ibid.
150.: Commission of Inquiry into the Sponsorship Program and Advertising Activities, Who Is Responsible? Fact Finding Report, vol. 1 (Ottawa: Public Works and Government Services Canada, 2005), pp. 622–8, confirmed in Gagliano v Canada (AG), 2005 FC 576 [Gagliano 2005]; appeal dismissed 2006 FCA 86. In 2011, the Quebec Superior Court ruled that comments made during proceedings of the House or a parliamentary committee cannot be used in a legal action against the person who made them or to attack that person’s credibility in a court of law. However, parliamentary privilege does not apply if these comments are repeated outside the proceedings (Conseil Québécois sur le tabac et la santé v JTI-MacDonald, 2013 QCCS 1911).
151.: Constitution Act, 1867, supra note 2, s 18; Parliament of Canada Act, supra note 15, ss 4–5.
152.: Bill of rights, 1689, supra note 26; May, Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 24th ed., p. 222. In 1999, the U.K. Joint Committee on Parliamentary Privilege reaffirmed that freedom of speech is the single most important parliamentary privilege (United Kingdom, Joint Committee on Parliamentary Privilege, Report, Volume I—Reports and Proceedings of the Committee, March 30, 1999, Chapter 2, paras 36 to 37).
153.: Michaud c Bissonnette, 2006 QCCA 775 at paras 35–36.
154.: May, Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 24th ed., pp. 235–6. See also pp. 235–9 for a discussion of the term. Maingot has also devoted considerable attention to the term (Parliamentary Privilege in Canada, 2nd ed., pp. 77–105). It has been argued that confidential caucus meetings held in the Parliamentary Precinct are a parliamentary proceeding to which the privilege of freedom of speech applies. In 2004, when the confidential proceedings of an Ontario Liberal caucus meeting were disclosed in the media, a question of privilege was raised in the House. In his ruling on the matter, Speaker Milliken stated: “The concept of caucus confidentiality is central to the operations of the House and to the work of all hon. Members” (Debates, March 25, 2004, pp. 1711–2). The matter was ruled a prima facie case of privilege and referred to the Standing Committee on Procedure and House Affairs (Journals, March 25, 2004, p. 216). In its Twenty-Second Report, para 15, presented to the House on April 26, 2004 (Journals, p. 311), the Committee stated that the disclosure impeded Members in carrying out their parliamentary functions and could constitute a contempt of the House. Furthermore, the Committee asserted that the leak “severely undermines the confidentiality of caucus meetings, and inhibits the ability of Members to speak frankly and openly without fear or concern that their remarks will leave the room”. The Committee concluded, however, that there was no evidence that the broadcast of the caucus meeting was done deliberately and it was satisfied that corrective measures had been taken by the House Administration to minimize chances of similar leaks in the future.
155.: House of Representatives Practice, 6th ed., pp. 736–7. Recently, in New Zealand, a Deputy Secretary was sued for defamation after having briefed a Minister orally and in writing, and then that information was used to answer a question in the House of Representatives. The Supreme Court of New Zealand found that absolute privilege did not exist in that instance as it had not been truly necessary for the proper and effective functioning of Parliament. A question of privilege was raised subsequently in the House and studied by the Privileges Committee, which reported to the House that it disagreed with the decision of the Supreme Court. In response, the Parliamentary Privilege Act 2014 (NZ), 2014/58, was enacted on August 7, 2014, which defines “parliamentary proceedings” for the application of Article 9 of the Bill of Rights, 1689, supra note 26, and specifies which documents or oral evidence fall within its purview (Attorney General and another v Leigh, [2011] NZSC 106).
156.: Maingot, Parliamentary Privilege in Canada, 2nd ed., pp. 90, 92–4, 101–2, for an analysis of the scope of this privilege in relation to the role of the modern Member of Parliament, and the reasons of Hugessen ACJ., for the Superior Court of Quebec in Re Ouellet (No. 1), [1976] 72 DLR (3d) 95, aff’g [1976] 67 DLR (3d) 73 (English version) or Re Ouellet, [1976] CA 788, aff’g [1976] CS 503 (French version). See also Pankiw, supra note 111 at paras 76–102. In addition, see Speaker Jerome’s ruling (Debates, May 15, 1978, p. 5411) and Speaker Milliken’s ruling (Debates, February 12, 2003, pp. 3470–1).
157.: Maingot, Parliamentary Privilege in Canada, 2nd ed., pp. 33–6, for a discussion of freedom of speech and the criminal law.
158.: Debates, December 11, 1984, p. 1114. Paraphrasing Speaker Michener, Speaker Bosley 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 …” (p. 1115). John Nunziata (York South—Weston) had risen on a question of privilege on December 7, 1984, to claim that comments made by Svend Robinson (Burnaby) in a committee meeting constituted a contempt of Parliament. Mr. Robinson had alleged that the United States Central Intelligence Agency (CIA) had penetrated senior management levels of Petro-Canada and he named several individuals as CIA agents. On December 21, 1984, Mr. Robinson rose in the House to retract his remarks made in the committee. He said that he had relied upon a confidential source of information and had availed himself of parliamentary immunity to accuse the Petro-Canada employees of spying for the CIA. He then went on to state: “While the tradition of parliamentary immunity is a long and important one, in retrospect I regret that I used my immunity to name these individuals. I have written to both men to express unreservedly my regret for having publicly named them in the Justice Committee. As well, Mr. Speaker, I wish at this time to issue a complete and unequivocal retraction of the allegations I made and unreservedly apologize to the two individuals involved …” (Debates, December 7, 1984, pp. 1004–7; December 21, 1984, p. 1447).
159.: Gagliano 2005, supra note 150 at paras 72, 77–78, 83. In 2004, questions arose as to whether counsel at a commission of inquiry could cross-examine witnesses on the basis of prior statements made before a standing committee. The House of Commons was asked by a commission of inquiry if it would be prepared to waive parliamentary privilege in order to permit the use of committee evidence in this way. After the matter was deliberated in two standing committees, the House reaffirmed the importance of the privilege of freedom of speech, resolving that “the proceedings and all evidence, submissions and testimony by all persons participating in the proceedings of the Standing Committee on Public Accounts continue to be protected by all the privileges and immunities of this House” (Journals, November 18, 2004, pp. 232–3). Upon being informed of the House’s resolution, the commissioner heading the inquiry ruled that parliamentary privilege precluded counsel from using that testimony in cross-examination (Commission of Inquiry into the Sponsorship Program and Advertising Activities, Who Is Responsible?, pp. 622–8). This decision was subsequently upheld by the Federal Court (Gagliano v Canada (Commission of Inquiry into the Sponsorship Program), 2006 FC 720 [Gagliano 2006], leave to appeal to FCA refused, 2006 FCA 86). For further information, see the section in this chapter entitled “Waiving the Privilege of Freedom of Speech”.
160.: George v Canada (AG), 2007 FC 564 at para 63 [George]. The applicant had brought two applications for judicial review before the Federal Court to prevent her testimony before the Standing Committee on Public Accounts with respect to the administration of the RCMP’s pension and insurance plans to be admitted as evidence in a criminal prosecution. See also the statement by the Chair of the Standing Committee on Public Accounts (Evidence, April 30, 2007, Meeting No. 53). In 2010, the Ontario Superior Court of Justice found that copies of in camera transcripts of Senate committee evidence are subject to parliamentary privilege and did not need to be disclosed to the accused, who had himself been present during the committee hearings (Lavigne v R, 2010 ONSC 2084).
161.: George, supra note 160 at para 70. The Federal Court also determined that it did not have jurisdiction to rule on whether parliamentary privilege applied to police investigations since such investigations fall under the jurisdiction of provincial superior courts. The Court was reluctant to interfere with the RCMP’s decision to pursue a criminal investigation: “It is clear that any issue with respect to parliamentary privilege remains alive and that the admissibility of any evidence which derives directly from the Applicant’s testimony before the Public Accounts Committee will have to be addressed when the criminal investigation unfolds” (George at para 52). In a 2014 ruling, the England and Wales Court of Appeal acknowledged that the protection of Article 9 of the Bill of Rights, 1689, supra note 26, usually covered evidence from parliamentary proceedings repeated outside of parliament as long as two conditions are met. First, there must be a public interest in repetition of the parliamentary statement. Second, there must be a close nexus between the occasions of speaking in and out of Parliament (Makudi v Baron Triesman of Tottenham, [2014] EWCA Civ 179).
162.: In 2006, the Standing Committee on Public Accounts prepared a comparative analysis on discrepancies in the testimony of certain individuals who had appeared before it during the Thirty-Seventh Parliament and also before the Commission of Inquiry into the Sponsorship Program and Advertising Activities, commonly known as the Gomery Inquiry (Minutes of Proceedings, November 21, 2006, Meeting No. 28). Thereafter, the Standing Committee adopted a motion to recall some of the witnesses to explain the discrepancies (Minutes of Proceedings, May 9, 2007, Meeting No. 56). On June 6, 2007, two of the witnesses appeared before the Committee, made opening statements and answered questions (Minutes of Proceedings, Evidence, Meeting No. 64). See also Sixth Report of the Standing Committee on Foreign Affairs, presented to the House on February 17, 2011 (Journals, p. 1261), for a separate example involving a Minister of the Crown, which involved making inconsistent statements in a committee and the House.
163.: In 2003, the Standing Committee on Government Operations and Estimates concluded that the former Privacy Commissioner, George Radwanski, had deliberately misled the Committee in his testimony and should be found in contempt of the House (Fourth Report, presented to the House on June 13, 2003 (Journals, p. 934)); Fifth Report, presented to the House on June 27, 2003 (Journals, September 15, 2003, p. 959); Ninth Report, presented to the House on November 4, 2003 (Journals, p. 1225)). In 2008, the Standing Committee on Public Accounts determined that RCMP Deputy Commissioner Barbara George had knowingly misled the Committee in her testimony before the Committee and recommended that she be found in contempt of the House (Third Report of the Standing Committee on Public Accounts, presented to the House on February 12, 2008 (Journals, p. 423)).
164.: The House found the former Privacy Commissioner, George Radwanski, to be in contempt of the House in 2003 for deliberate misleading testimony before the Standing Committee on Government Operations and Estimates. However, given that Mr. Radwanski apologized to the House in writing, no sanctions were applied (Debates, November 4, 2003, pp. 9150–1; November 5, 2003, pp. 9192–3; November 6, 2003, pp. 9229–31, 9237). In 2008, the House found Deputy RCMP Commissioner Barbara George in contempt for providing false and misleading testimony to the Public Accounts Committee but did not order any further action “as this finding of contempt is, in and of itself, a very serious sanction” (Debates, April 10, 2008, p. 4721).
165.: Parliament of Canada Act, supra note 15, s 12; Criminal Code, RSC 1985, c C-46, ss 132, 136 [Criminal Code]. See also Fourteenth Report of the Standing Committee on Procedure and House Affairs, paras 15–16, presented to the House and concurred in on November 18, 2004 (Journals, pp. 232–3). See also the testimony of representatives of the Office of the Law Clerk and Parliamentary Counsel before the Standing Committee on Public Accounts on February 7, 2007 (Evidence, Meeting No. 37). Legal Counsel explained that five criteria must be met before a charge of perjury can be made: a false statement has to have been made; the statement must have been made under oath or solemn affirmation; the testimony had to be given before an authorized person (i.e., the committee and committee Chair); the witness must have knowingly made the false statement; and there must have been intent to mislead the person or body to whom the testimony was given. Given that neither a parliamentary committee nor Parliament itself is a prosecutorial body, the matter would have to be handed over to the appropriate provincial Attorney General to decide whether or not to prosecute. To date, no witness has ever been charged with perjury for lying to a committee. For further information, see the section in this chapter entitled “The Right to Administer Oaths to Witnesses”.
166.: Griffith and Ryle, Parliament: Functions, Practice and Procedures, 2nd ed., p. 132. See, for example, Debates, March 11, 2008, pp. 3972–4. In 2008, the Conflict of Interest and Ethics Commissioner was requested to determine whether Robert Thibault (West Nova) had breached his obligations under the Conflict of Interest Code for Members of the House of Commons by participating in a review by the Standing Committee on Access to Information, Privacy and Ethics into the Mulroney Airbus Settlement given that the former Prime Minister had initiated legal proceedings against the Member for libellous comments made during a CTV television show. The Code requires Members to disclose any private interest they may have in a matter before the House or a committee and to refrain from participating in debate or voting on the matter (ss 8, 12–13). In her report to the House, the Conflict of Interest Commissioner found that a lawsuit constituted a liability and thus a private interest for purposes of the Code. She determined that Mr. Thibault had consequently breached sections 8, 12 and 13 of the Code, although it was deemed an error of judgment made in good faith (Report of the Conflict of Interest and Ethics Commissioner entitled “The Thibault Inquiry” (Journals, May 7, 2008, p. 783). Subsequently, Derek Lee (Scarborough—Rouge River) raised a question of privilege to question the validity of the Code being interpreted in such a way as to limit Members’ freedom of speech and right to vote in the House and in committee. In particular, Mr. Lee took issue with the Commissioner’s contention that being a defendant in a libel suit was tantamount to having a private interest in the matter (Debates, May 26, 2008, pp. 6006–10). In ruling the matter prima facie, Speaker Milliken stated: “… when the mere filing of a libel suit against a member, whatever the ultimate disposition of the suit may be, has the effect of placing restrictions on the ability of that Member to speak and to vote in the House and in committee, it appears reasonable to conclude that the privileges of all Members are immediately placed in jeopardy” (Debates, June 17, 2008, pp. 7072–3). The House adopted a motion to refer the subject matter of the ruling to the Standing Committee on Procedure and House Affairs for consideration (Journals, June 17, 2008, pp. 1003, 1006). The Thirty-Ninth Parliament was dissolved before the Committee could present a report to the House on the matter. (On June 5, 2008, the House amended section 3(3) of the Conflict of Interest Code to clarify that a Member is not considered to be furthering his or her own private interests if the matter in question “consists of being a party to a legal action relating to actions of the Member as a Member of Parliament” (Journals, pp. 918–21). See also s 3(3)(b.1) of the Code. For further information on the Conflict of Interest Code for Members of the House of Commons, see Chapter 4, “The House of Commons and Its Members”.
167.: Maingot, Parliamentary Privilege in Canada, 2nd ed., pp. 39, 41, 44–6, 90–4.
168.: This was one of the main issues in the famous case of Stockdale, supra note 15. See May, Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 24th ed., pp. 224–6, 288–90; Maingot, Parliamentary Privilege in Canada, 2nd ed., pp. 63–75. Maingot also notes on page 9 that a Member cannot claim parliamentary privilege for the content of a householder because it is not a publication ordered by the House to be printed. See also Speaker Parent’s ruling (Debates, November 16, 1999, pp. 1287–8). A bulk mailing sent out by a Member containing material critical of the Senate became the subject of a civil suit launched against the Member by a Senator. The Member claimed that his privilege of freedom of speech had been breached by the lawsuit. The Speaker ruled that since the matter involved information contained in a document not considered to be a proceeding in Parliament, the Member’s privileges had not been breached.
169.: Maingot, Parliamentary Privilege in Canada, 2nd ed., pp. 82–94.
170.: Pankiw, supra note 111 at paras 92, 95, 113. For further information, see the sections in this chapter entitled “Privilege Challenged in the Courts” and “The Right to Publish Papers”.
171.: Debates, May 5, 1987, pp. 5765–6. Specifically, during debate as well as during Question Period and other House proceedings, Members are bound by the Standing Orders and practices of the House with respect to the content of speeches and remarks. For example, Standing Order 18 prohibits the use of disrespectful or offensive language in debate. Moreover, personal attacks, insults, obscene language or words that question a Member’s integrity, honesty or character are not permitted. It is unparliamentary to state that a Member has deliberately misled the House. As Speaker Milliken observed in 2002: “If we do not preserve the tradition of accepting the word of a fellow member, which is a fundamental principle of our parliamentary system, then freedom of speech, both inside and outside the House, is imperilled” (Debates, April 16, 2002, pp. 10462–3). However, if a Member who feels that his or her reputation has been maligned by the comments of another Member raises a question of privilege, the Speaker must determine if such remarks “constitute such a grave attack as to impede the hon. Member … in the performance of his duties” (Debates, May 28, 2008, p. 6171).
172.: Debates, September 30, 1994, p. 6371. Speaker Scheer has also remarked on the limits of freedom of speech, stating: “All members bear a responsibility, individually and collectively, to select the words they use very carefully and to be ever mindful of the serious consequences that can result when this responsibility is forgotten” (Debates, March 3, 2014, p. 3430).
173.: Debates, May 26, 1987, pp. 6375–6. See also Debates, June 7, 2005, pp. 6738–9.
174.: Debates, April 24, 2007, pp. 8585–6.
175.: Debates, December 3, 1991, pp. 5679–82, in particular p. 5681.
176.: Debates, April 2, 2003, p. 5040.
177.: For a complete discussion of the sub judice convention, see Chapter 13, “Rules of Order and Decorum”.
178.: First Report of the Special Committee on the Rights and Immunities of Members, presented to the House on April 29, 1977 (Journals, pp. 720–9); Minutes of Proceedings and Evidence, April 4, 1977, Issue No. 1, Appendix C, “The Sub Judice Convention in the Canadian House of Commons”, pp. 1A: 11–2. See also Philip Laundy, “The Sub Judice Convention in the Canadian House of Commons,” The Parliamentarian 57, no. 3 (July 1976): p. 211. See also the ruling of Speaker Scheer (Debates, March 27, 2013, pp. 15292–3).
179.: The practice has been codified in other jurisdictions either by the adoption of Standing Orders (Alberta, Ontario, Quebec, India (Lok Sabha), New Zealand) or by way of resolution (United Kingdom House of Commons). See also May, Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 24th ed., pp. 396, 441–3.
180.: See Speaker Parent’s comments (Debates, April 6, 1995, pp. 11618–9).
181.: Journals, April 29, 1977, pp. 720–9.
182.: See, for example, Speaker Milliken’s ruling (Debates, April 20, 2005, pp. 5334–5). Speaker Milliken had been asked to apply the sub judice convention to comments regarding an investigation in which charges had not yet been laid. In the absence of clear guidelines, the Speaker refrained from applying the convention.
183.: Debates, March 27, 2013, pp. 15292–3.
184.: Standing Orders 10 and 11. For further information, see Chapter 7, “The Speaker and Other Presiding Officers of the House”, Chapter 12, “Process of Debate”, and Chapter 13, “Rules of Order and Decorum”.
185.: Journals, April 12, 1892, pp. 234–5. For further information, see the section in this chapter entitled “Expulsion”.
186.: Journals, December 14, 1978, p. 254.
187.: Counsel argued that the privilege of freedom of speech was not intended to apply to witnesses before a parliamentary committee, only to parliamentarians as protection from civil or criminal proceedings based on statements made during debate.
188.: Third Report of the Standing Committee on Public Accounts, presented to the House on November 5, 2004 (Journals, p. 202), and concurred in on November 15, 2004 (Journals, pp. 212–4).
189.: Journals, November 18, 2004, pp. 232–3.
190.: Fourteenth Report of the Standing Committee on Procedure and House Affairs, para 14, presented to the House on November 18, 2004 (Journals, pp. 232–3). Upon learning that the House would not waive its privilege, Commissioner Gomery ruled that the evidence of the witnesses before a parliamentary committee could not be used to undermine their credibility before the Commission of Inquiry: “In my view it is important that this Commission should not be seen to encroach in any way upon the privileges and immunities of the Parliament of Canada, and should respect the promises and undertakings it made” (Commission of Inquiry into the Sponsorship Program and Advertising Activities, Who Is Responsible?, p. 627). This decision was upheld by the Federal Court (Gagliano 2006, supra note 159).
191.: Twentieth Report of the Standing Committee on Public Accounts, Recommendations 1 and 2, presented to the House on June 15, 2007 (Journals, p. 1543).
192.: Journals, June 15, 2007, p. 1543.
193.: Third Report of the Standing Committee on Access to Information, Privacy and Ethics, presented to the House and concurred in on March 12, 2009 (Journals, pp. 244–5).
194.: May, Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 24th ed., pp. 204–5; House of Representatives Practice, 6th ed., p. 743; McGee, Parliamentary Practice in New Zealand, 3rd ed., pp. 612–3. See also United Kingdom, Joint Committee on Parliamentary Privilege, Report, Volume I — Report and Proceedings of the Committee, March 30, 1999, Chapter 2.
195.: May, Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 24th ed., pp. 243–50; Bourinot, Parliamentary Procedure and Practice, 4th ed., pp. 42–7; Maingot, Parliamentary Privilege in Canada, 2nd ed., pp. 151–8. For its origins and history in the United Kingdom and Canada, see May, A Treatise Upon the Law, Privileges, Proceedings and Usage of Parliament, 1st ed., pp. 86–7, and Maingot, Parliamentary Privilege in Canada, 2nd ed., pp. 152–5.
196.: Maingot, Parliamentary Privilege in Canada, 2nd ed., p. 155. Should the police arrest a Member outside the House on some criminal matter, the House of Commons is not entitled to intervene. On February 16, 1965, G.J. McIlraith (President of the Privy Council) raised a question of privilege concerning the effects on the privileges of the House of the arrest of Gilles Grégoire (Lapointe) by the RCMP outside the Parliament Buildings on two warrants for traffic offences. The Speaker ruled the matter prima facie, and it was subsequently referred to the Standing Committee on Privileges and Elections. On March 19, 1965, the Committee presented its Fourth Report which found that the privilege of freedom from arrest of the Member had not been infringed and that the actions of the RCMP did not constitute a breach of parliamentary privilege (Journals, February 16, 1965, pp. 1035–6; March 19, 1965, pp. 1141–2).
197.: United Kingdom, Report from the Select Committee on Parliamentary Privilege, p. 1.
198.: United Kingdom, Report from the Select Committee on Parliamentary Privilege, p. XVI, para 47.
199.: Maingot, Parliamentary Privilege in Canada, 2nd ed., p. 156. Maingot also notes on page 171 that since the administration of justice in Canada is a provincial responsibility, the Crown Attorney for the particular judicial district where the offence occurred would prosecute any breach of the Criminal Code, supra note 165.
200.: Maingot, Parliamentary Privilege in Canada, 2nd ed., pp. 157–8. Bourinot, Parliamentary Procedure and Practice, 4th ed., p. 44, notes that while the House will not normally interfere if a Member is committed for contempt, it does reserve the right to inquire into the nature of the offence and protect Members in proper cases.
201.: Maingot, Parliamentary Privilege in Canada, 2nd ed., p. 158.
202.: Bourinot, Parliamentary Procedure and Practice, 4th ed., pp. 46–7. Bourinot also notes, based on British practice, that failure to inform the Speaker has not been viewed as a matter of privilege (p. 47).
203.: Maingot, Parliamentary Privilege in Canada, 2nd ed., p. 155. If the period between dissolution (or prorogation) and the commencement of the next session exceeds 80 days, there would be an interim period where this immunity would not be available to Members.
204.: Ibid., p. 160.
205.: Ibid., p. 159. In the United Kingdom, the Criminal Justice Act 2003 (UK), c 44, repealed the provisions found in the Juries Act 1974 (UK), c 23, which exempted Members of Parliament and House Officers from jury service. See Thomas Erskine May, Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 23rd ed., ed. Sir William McKay (London: LexisNexis, 2004), p. 125.
206.: Jury selection is a matter of provincial jurisdiction. While exemption from jury duty is claimed as a right by the House of Commons, provincial jury legislation usually includes Members of Parliament as one of the exempt categories. In some provincial statutes, the staff of Members of the Legislative Assembly and officers of the Assembly may be exempted from jury duty. See, for example, Jury Act, SNB 1980, c J-3.1, s 3; Jurors Act, RSQ, c J-2, s 4; The Jury Act, 1998, SS 1998, c J-4.2, s 6.
207.: Maingot, Parliamentary Privilege in Canada, 2nd ed., p. 160.
208.: May, Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament 24th ed., p. 248; Bourinot, Parliamentary Procedure and Practice, 4th ed., pp. 45–6; Maingot, Parliamentary Privilege in Canada, 2nd ed., pp. 158–9. For a discussion of the issue, see Debates, November 25, 1998, pp. 10453–62.
209.: Maingot, Parliamentary Privilege in Canada, 2nd ed., p. 158.
210.: Ibid., p. 159.
211.: Ibid. Maingot also notes that while the service of a subpoena would not normally be raised in the House, the counsel who authorized the service should be advised by the Member or by the general legal counsel of the House of Commons of the lawful claim of this privilege. In the United Kingdom, in certain cases when this has been raised by the Member concerned, the British Speaker has communicated with the court drawing attention to the privilege and asking that the Member be excused. See May, Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 24th ed., p. 248.
212.: May, Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 24th ed., p. 248.
213.: Debates, May 19, 1989, pp. 1952–3. See also David Kilgour and Jef Bowdich, “A serious question of immunity,” The Parliamentarian 70, no. 4 (October 1989): p. 233.
214.: Maingot, Parliamentary Privilege in Canada, 2nd ed., p. 155.
215.: Debates, May 19, 1989, p. 1953.
216.: Ainsworth Lumber Co. v Canada (AG) and Paul Martin, 2003 BCCA 239.
217.: Gillet c Arthur, 2006 QCCS 3953; Arthur c Gillet, 2007 QCCA 470.
218.: Telezone Inc. v Canada (AG), (2004), 69 OR (3d) 161.
219.: A former candidate for the nomination to represent a political party in an election brought an action against the party leader, a Member of the House, for matters relating to the nomination. The candidate sought to examine the Member prior to the trial (Riddell v Right Point, [2007] OJ 3943 (QL) (ONSCM)). In another instance, the Superior Court of Justice of Ontario quashed a summons for a Minister of the Crown to give testimony in court, stating that the Minister was entitled to invoke the privilege of testimonial immunity and could not be compelled to testify in court until the legislature had been prorogued for 40 days (Dunphy v Peel Housing Corporation, 2009 CanLII 21760 (ON SC)).
220.: Maingot, Parliamentary Privilege in Canada, 2nd ed., p. 160.
221.: Ibid., pp. 230–1.
222.: For further information, see Chapter 4, “The House of Commons and Its Members”. For further information on bribery and the acceptance of fees by Members, see Maingot, Parliamentary Privilege in Canada, 2nd ed., pp. 59–61, 250–1.
223.: Maingot, Parliamentary Privilege in Canada, 2nd ed., p. 15. See also May, Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 23rd ed., pp. 143–54.
224.: On September 19, 1973, Otto Jelinek (High Park—Humber Valley) raised a question of privilege claiming that an employee of the Canadian Broadcasting Corporation, in telephone conversations with the Member, had advised Mr. Jelinek to stop asking questions about television coverage of the Olympic Games during Question Period or else it would be alleged that the Member had a contract with the CTV network and was in a conflict of interest. Mr. Jelinek claimed that these calls were an attempt to intimidate him. As the Member did not know the name of the caller, no specific charge could be made and therefore there was no prima facie question of privilege (Debates, September 19, 1973, p. 6709).
225.: Debates, May 1, 1986, p. 12847. On April 29, 1986, Sheila Copps (Hamilton East) rose on a question of privilege, arguing that her privileges had been adversely affected in that the office of the Deputy Prime Minister (Erik Nielsen) had improperly monitored communications between Members and the Assistant Deputy Registrar General with the intention of interfering with the exercise of their duties and attempting to intimidate them. This focused on Members’ inquiries of the Assistant Deputy Registrar General about compliance with conflict of interest guidelines (Debates, April 29, 1986, p. 12756; April 30, 1986, p. 12791). In his ruling, the Speaker felt that the fact that the Deputy Prime Minister had inquired whether Members had been in communication with the Assistant Deputy Registrar General did not seem to constitute an interception of those communications.
226.: In a question of privilege raised on May 14, 1986 with respect to a proposed inquiry into conflict of interest allegations against a former Minister, Herb Gray (Windsor West) accused Deputy Prime Minister Erik Nielsen of attempting, through his comments, to intimidate Members in the exercise of their duties (Debates, pp. 13270–3). The Chair could not find an expressed intention to be a breach unless it were of itself a threat. No threat, real or implied, that Members be called to account for anything they said in the House had been made (Debates, May 16, 1986, pp. 13361–2).
227.: Debates, November 16, 1999, pp. 1287–8; February 7, 2013, pp. 13868–9.
228.: For examples of rulings on matters where Members alleged they had been obstructed or threatened but which were found not to have occurred during a parliamentary proceeding, see Debates, May 15, 1978, p. 5411; November 2, 1978, p. 730; February 12, 2003, pp. 3470–1; June 8, 2005, pp. 6826–8; October 5, 2010, pp. 4780–1.
229.: Debates, November 2, 1978, pp. 729–31. The Standing Committee on Procedure and House Affairs asserted in a 2005 report that “[t]he bar to establish a breach of privilege is necessarily a high one, and, in the case of an individual Member, it must be closely related to his or her parliamentary duties” (Forty-Fourth Report of the Standing Committee on Procedure and House Affairs, presented to the House on June 22, 2005 (Journals, p. 958)).
230.: Maingot notes that assaults on Members which occur outside the precinct and which 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, might, however, constitute contempt of the House. See Parliamentary Privilege in Canada, 2nd ed., pp. 165–6, 256. Speaker Scheer has remarked on the limits to claims of physical obstruction, stating: “It would indeed be unfortunate for members to carry the concept of physical obstruction to illogical and unreasonable lengths. However, I would caution that the House ought not either to fall into the trap of assessing these matters on the sole basis of the duration of a delay or impediment. One can easily imagine a situation where even a very brief obstruction, depending on its severity or nature, could lead a Speaker to arrive at a prima facie finding of privilege and to allow a debate in the House” (Debates, May 12, 2015, pp. 13759–60. On May 18, 2016, after the expiry of the bells for a vote on a time allocation motion for Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), 1st Sess, 42nd Parl, 2016, the Prime Minister crossed the floor and took the Whip of the Official Opposition, Gordon Brown, by the arm to expedite the vote at the same time making contact with Ruth-Ellen Brosseau (Berthier—Maskinongé). Although the Prime Minister had apologized, Peter Van Loan (York—Simcoe) rose on a question of privilege to allege that the Prime Minister was guilty of breaching the individual and collective rights of Members. The Speaker ruled immediately, finding a prima facie breach of privilege; the matter was referred to the Standing Committee on Procedure and House Affairs, which agreed to consider the matter resolved (Journals, May 18, 2016, p. 478, Debates, pp. 3544–7; Journals, May 19, 2016, pp. 482–3, Debates, pp. 3558–87, 3600; Standing Committee on Procedure and House Affairs, Minutes of Proceedings, May 31, 2016, Meeting No. 24).
231.: During a demonstration on Parliament Hill, which included taxi drivers protesting the goods and services tax, several Members entered taxi cabs and asked to be driven to the main entrance of Centre Block. However, their way was barred by a roadblock of RCMP cars. Some of the Members proceeded on foot, while others eventually reached Centre Block by taxi after the roadblock was lifted. In his question of privilege, Herb Gray (Windsor West) submitted that the actions of the RCMP constituted a breach of Members’ privileges since they were denied access to the House of Commons. The Speaker ruled immediately, finding that a prima facie matter of privilege existed, and the matter was referred to the Standing Committee on Elections, Privileges, Procedure and Private Members’ Business. The Committee never reported on the matter (Journals, October 30, 1989, p. 773, Debates, pp. 5298–302).
232.: Journals, February 17, 1999, p. 1517, Debates, pp. 12011–2.
233.: Debates, February 17, 1999, pp. 12009–12; Journals, February 18, 1999, p. 1525, Debates, p. 12134. In its Sixty-Sixth Report, para 23, presented to the House on April 14, 1999 (Journals, p. 1714), the Standing Committee on Procedure and House Affairs concluded that there had been no deliberate intention to contravene parliamentary privilege, that “any contempt of Parliament that occurred was technical and unintended”, and that there was no need for sanctions. No further action was taken on the Report.
234.: Debates, December 1, 2004, pp. 2134–7. The Committee concluded that Members’ privileges had been breached and recommended that the Sergeant-at-Arms and the RCMP provide written reports to the House outlining how such a situation would be avoided in the future (Twenty-First Report of the Standing Committee on Procedure and House Affairs, presented to the House on January 31, 2005 (Journals, p. 366), and concurred in on May 17, 2005 (Journals, pp. 764–5)).
235.: Following a visit by Israeli Prime Minister Benjamin Netanyahu, the Standing Committee on Procedure and House Affairs clarified the respective obligations and expectations of Members and the RCMP (Journals, March 15, 2012, p. 991, Debates, pp. 6333–5; Twenty-Sixth Report of the Standing Committee on Procedure and House Affairs, presented to the House on May 31, 2012 (Journals, p. 1353)). In another visit, by the President of the Federal Republic of Germany, Joachim Gauck, the Standing Committee on Procedure and House Affairs urged improved planning and coordination between security partners and Members (Journals, September 25, 2014, p. 1487, Debates, pp. 7836–8, 7851–6; Thirty-Fourth Report of the Standing Committee on Procedure and House Affairs, presented to the House on March 26, 2015 (Journals, p. 2289)).
236.: See, for example, Debates, October 30, 2007, pp. 578–9; February 4, 2008, pp. 2539–40; January 28, 2014, p. 2205.
237.: Debates, May 5, 1987, p. 5766. Otto Jelinek (Minister of State for Fitness and Amateur Sport) had raised a question of privilege regarding oral questions asked about an alleged conflict of interest involving him. Speaker Fraser ruled that the Minister’s capacity to function as a Minister and a Member was not impaired (Debates, April 14, 1987, pp. 5124–34; May 5, 1987, pp. 5765–6). In 2011, Irwin Cotler (Mount Royal) raised a question of privilege, claiming that his reputation had been damaged by misleading information which suggested that he was no longer a Member of Parliament. Speaker Scheer ruled that, although the Member had legitimate grievances, he had not been impeded in the performance of his parliamentary duties (Debates, December 13, 2011, pp. 4396–8).
238.: Journals, April 18, 2005, pp. 642, 645, Debates, pp. 5214–5. The matter was referred to the Standing Committee on Procedure and House Affairs, which reported that the Member’s privileges had been infringed, although inadvertently, by the mailing (Thirty-Eighth Report of the Standing Committee on Procedure and House Affairs, presented to the House on May 11, 2005 (Journals, p. 738)). The Committee recommended that the Speaker issue a press release in the communities involved apologizing for the mistake and providing assurances that it would not happen again. The Report was not concurred in.
239.: Debates, November 3, 2005, pp. 9489–90. The House defeated the motion to refer the matter to committee (Journals, November 15, 2005, pp. 1273–4).
240.: Journals, November 19, 2009, p. 1058, Debates, p. 6982; November 26, 2009, p. 7277; Journals, November 30, 2009, pp. 1107–8.
241.: Following the adoption of a motion to reinstate both prima facie questions of privilege, originally raised in the previous session (Journals, March 15, 2010, pp. 82–3), the Standing Committee on Procedure and House Affairs presented its Sixth and Seventh Reports on the matter to the House on April 16, 2010 (Journals, p. 217).
242.: Debates, October 6, 2005, pp. 8473–4, in particular p. 8474. The matter was referred to the Standing Committee on Procedure and House Affairs. In its report to the House, the Committee stated: “Members of Parliament are public figures, and their reputations and integrity are among their most valuable assets. We are all cognizant of the public cynicism that exists regarding our political system. When the Conflict of Interest Code for Members of the House of Commons was being developed, considerable concern was expressed that unfounded allegations could be made and that these could irredeemably damage Members. That is why protections were built into the Code. It is also why inquiries are to be conducted in private” (Fifty-First Report of the Standing Committee on Procedure and House Affairs, para 34, presented to the House on November 18, 2005 (Journals, pp. 1289–90)). The Committee found the Ethics Commissioner to be in contempt of the House, but because his actions were neither deliberate nor intentional, no sanctions were recommended.
243.: Journals, March 6, 2012, pp. 900, 906–8, Debates, pp. 5834–5. The Standing Committee on Procedure and House Affairs presented the Twenty-First Report on the matter to the House on May 2, 2012 (Journals, p. 1152). The Report was not concurred in.
244.: Debates, May 6, 1985, p. 4439. On April 25, 1985, Andrew Witer (Parkdale—High Park) rose on a question of privilege relating to an advertisement which appeared in a Toronto-based Ukrainian-language newspaper. The ad in question identified Jesse Flis, the incumbent’s predecessor, as the Member for Parkdale—High Park, listing the address and phone number of Mr. Flis’ former constituency office (Debates, pp. 4111–3). In his ruling, the Speaker noted that, based on the evidence available, a prima facie case of privilege must be found. The matter was referred to the Standing Committee on Privileges and Elections (Journals, May 6, 1985, p. 570). On May 30, 1985, the Committee presented its report which found that the advertisement had been published in error and that there had been no intention on the part of any of the parties involved to misrepresent Mr. Flis as the sitting Member of Parliament. It concluded that no further action was necessary (Journals, May 30, 1985, pp. 676–7).
245.: Debates, November 22, 2004, pp. 1657–8; November 23, 2004, pp. 1733–4. Serge Marcil (former Member of Parliament for the riding of Beauharnois—Salaberry) was identified in the booklet as the sitting Member, although he had been defeated in the 2004 general election. The Committee concluded that the advertisement had been added to the booklet when Mr. Marcil was still a Member, and that the failure to remove it had been an “involuntary error”, and not a breach of the privileges of the House (Twenty-Eighth Report of the Standing Committee on Procedure and House Affairs, presented to the House and concurred in on February 23, 2005 (Journals, pp. 471–2)). In 2010, a question of privilege was raised concerning allegations that Rahim Jaffer (former Member of Parliament for Edmonton—Strathcona) had distributed business cards identifying him as a Member of Parliament and had continued using a parliamentary BlackBerry and email address after his defeat in 2008. The Speaker stated that, if true, such actions constituted “a serious issue and a breach of the privileges of this House”. However, the Speaker also stated that until additional evidence surfaced to support the allegation against Mr. Jaffer, he would take the matter under advisement and return with a ruling if merited. The Speaker did not address this matter again (Debates, April 15, 2010, pp. 1516–7).
246.: Debates, February 20, 1984, p. 1560. On February 6, 1984, Albert Cooper (Peace River) raised a question of privilege arising out of a telephone conversation between a member of his staff and an official in the office of the President of Canada Post Corporation. Mr. Cooper, Opposition critic for Canada Post, alleged that the official had been abusive. The official had complained that Mr. Cooper’s office had not cleared questions asked by the Member in the House with the President’s office and warned that if this were not done in the future, Mr. Cooper could expect little co-operation from Canada Post. Mr. Cooper argued that this was an attempt to inhibit his freedom of speech, influence his actions in the House and hamper him in his role as spokesman for the Official Opposition. On February 9, 1984, André Ouellet (Minister of Labour and who was also responsible for Canada Post) reported to the House that he had spoken to the official involved who denied making any such threats. The Minister also challenged the validity of Mr. Cooper’s question of privilege since it was based on a conversation between his assistant and the officer at Canada Post and did not directly involve the Member. On February 20, 1984, the Speaker ruled that a prima facie question of privilege had been established. The motion to refer the matter to the Standing Committee on Privileges and Elections was negatived on a recorded division (Debates, February 6, 1984, pp. 1101–6; February 9, 1984, pp. 1234–5; February 14, 1984, pp. 1382–4; Journals, February 20, 1984, pp. 188–9, Debates, pp. 1559–61).
247.: Journals, December 4, 1992, p. 2284. Don Boudria (Glengarry—Prescott—Russell) contended that witnesses before committees enjoy the same privileges as Members of the House and are accorded the temporary protection of the House. In the Member’s opinion, if such threats were to go unchallenged, it would imply that witnesses before committees could not testify without the threat of being sued or intimidated (Debates, December 4, 1992, pp. 14629–31).
248.: Sixty-Fifth Report of the Standing Committee on House Management, Minutes of Proceedings and Evidence, February 18, 1993, Issue No. 46, p. 9, presented to the House on February 18, 1993 (Journals, p. 2528). The Committee was unable to find sufficient evidence to support the allegation of the intimidation and to justify a finding of contempt. The Report was concurred in on February 25, 1993 (Journals, p. 2568). See also Debates, December 7, 2006, pp. 5813–4; May 10, 2007, p. 9288 where Speaker Milliken advised the House that he would consider a question of privilege respecting the intimidation of a witness only after the committee report on the matter had been presented to the House. For further information, see the section in this chapter entitled “Freedom of Speech”.
249.: On November 3, 1978, Allan Lawrence (Northumberland—Durham) charged that he had been deliberately misled by a former Solicitor General. Acting on behalf of a constituent who suspected that his mail had been tampered with, Mr. Lawrence had written in 1973 to the then Solicitor General who assured him that as a matter of policy the RCMP did not intercept the private mail of anyone. However, on November 1, 1978, in testimony before the McDonald Commission (a royal commission created by the federal government in 1977 to look into the illegal activities of the RCMP, and headed by Justice David McDonald of the Supreme Court of Alberta), the former RCMP commissioner stated that they did indeed intercept mail on a very restricted basis and that the practice was not one which had been concealed from Ministers. Mr. Lawrence claimed that this statement clearly conflicted with the information he had received from the Solicitor General some years earlier (Debates, November 3, 1978, pp. 777–92; November 8, 1978, p. 924; November 9, 1978, pp. 964–6). On December 6, Speaker Jerome dealt with a number of points raised in the presentations on the question of privilege and ruled the matter prima facie. Mr. Lawrence then moved that the matter be referred to the Standing Committee on Privileges and Elections for investigation and report. The motion was negatived on a recorded division (Journals, November 9, 1978, pp. 125–9; December 6, 1978, pp. 221–4; December 7, 1978, pp. 228–9). See also Speaker Milliken’s ruling on February 25, 2004 (Debates, p. 1047) where he was unable to find a prima facie breach of privilege concerning misleading statements in the 1999–2000 Report on Plans and Priorities of the Department of Public Works and Government Services. The Speaker found no evidence to indicate that departmental officials had deliberately intended to deceive and obstruct Members. He noted, however, that if the Standing Committee on Public Accounts were to present the House with such evidence, it could constitute grounds for raising a question of privilege.
250.: Journals, March 21, 1978, p. 520. On February 22, 1978, John Rodriguez (Nickel Belt) rose on a question of privilege to complain of possible surveillance activities undertaken against him (Debates, February 22, 1978, p. 3129). The matter was raised again on March 1 when Mr. Rodriguez argued that a bugging operation had taken place and that it was a breach of privilege since it called into question the privacy of communications between a Member and his constituents (Debates, March 1, 1978, pp. 3348–9). See also Debates, March 2, 1978, pp. 3384–5; March 8, 1978, pp. 3571–6; March 9, 1978, pp. 3607–9; March 16, 1978, pp. 3831–2. On March 21, after the Speaker found the question of privilege prima facie, Mr. Rodriguez moved his motion, which was negatived on a recorded division (Journals, March 21, 1978, pp. 520–2, 525–6).
251.: For further information, see Chapter 7, “The Speaker and Other Presiding Officers of the House”.
252.: Debates, December 22, 1976, pp. 2241–2.
253.: On March 16, 1993, Gilles Bernier (Beauce) raised a question of privilege regarding comments made by Benoît Tremblay (Rosemont) and reported in a newspaper, which cast doubts on the integrity and impartiality of Assistant Deputy Chairman of Committees of the Whole Charles DeBlois (Debates, March 16, 1993, p. 17027). The Speaker ruled that the matter was a prima facie case of privilege and the matter was referred to the Standing Committee on House Management (Journals, March 23, 1993, p. 2688, Debates, pp. 17403–5). On March 25, 1993, Mr. Tremblay rose in the House and withdrew the offending comments (Debates, March 25, 1993, p. 17537). No further action was taken and the Committee did not report on the matter.
254.: Peter MacKay (Pictou—Antigonish—Guysborough) moved a motion that the matter be referred to the Standing Committee on Procedure and House Affairs. Debate on the motion ensued, continued the next day, and the motion was adopted with an amendment on a recorded division (Journals, March 9, 1998, p. 540, Debates, pp. 4560–75; Journals, March 10, 1998, pp. 548, 550–2, Debates, pp. 4592–8, 4666–8). On April 27, 1998, the Committee presented to the House its Twenty-Ninth Report (Journals, p. 706), which was concurred in on May 5, 1998 (Journals, April 29, 1998, p. 722; May 5, 1998, pp. 744–5). On page 5 of its Report, the Committee noted that the Members involved were adamant that they had not intended to intimidate or threaten the Speaker in any way or show disrespect for the House or the Speaker. It concluded that the statements attributed to the Members “were not intended to be contemptuous of the House of Commons or the Speaker”.
255.: Debates, March 24, 2014, pp. 3733–4; March 26, 2014, p. 3894. The resolution adopted by the House denounced Russia’s sanctions against the Speaker and parliamentarians, and called upon the Speaker to convey the resolution to the Ambassador of the Russian Federation (Journals, March 26, 2014, p. 733).
256.: Debates, July 15, 1980, pp. 2914–5. On July 3, 1980, Bill Domm (Peterborough) rose on a question of privilege to protest that not only had the Department of the Secretary of State been ordered not to send him a list of the new Canadian citizens in his constituency, but he had also been deliberately misled by officials and personally supplied with false documents (Debates, July 3, 1980, pp. 2540–6; July 14, 1980, pp. 2855–7). In finding that there was no prima facie question of privilege, the Speaker noted that the documents submitted by the Member did not clearly indicate inaccuracies. Furthermore, even if they had been shown to be incorrect, falsified or altered, which they had not, there was no indication that the intent had been to deceive the House.
257.: Debates, May 15, 1985, p. 4769. See also Debates, October 9, 1997, pp. 687–9; May 3, 2006, pp. 844–5; February 4, 2008, pp. 2539–40.
258.: Debates, June 8, 2005, pp. 6826–8. Don Boudria (Glengarry—Prescott—Russell) also alleged that an external organization had registered Internet domain names of certain Members without authorization, thus creating confusion about the ownership of the websites (Debates, May 31, 2005, pp. 6415–8; June 2, 2005, pp. 6564–7). In his ruling, Speaker Milliken stated that it was incumbent upon Members to register their own domain names, and that no Members had been prevented from performing their parliamentary functions as a result of the websites. See also Debates, March 29, 2007, pp. 8134–5; May 2, 2007, pp. 8967–8.
259.: On October 26, 1987, John Nunziata (York South—Weston) rose on a question of privilege regarding the alleged interception by the Correctional Service of Canada of a telephone conversation between the Member’s office and an inmate at Joyceville Penitentiary who was also a constituent. Mr. Nunziata alleged that the inmate had been transferred to the maximum security penitentiary at Millhaven and put in segregation as a result of the conversation. The Member contended that his privileges as a Member had been breached with regard to his ability to deal with constituents “in an unfettered fashion” and his privileges as an Opposition critic for the Solicitor General had been breached with regard to access to inmates and conducting conversations with them in private. The Member also contended that, although he did not speak personally with the inmate, his privileges as a Member must also extend to any staff working on his behalf (Debates, October 26, 1987, pp. 10385–7; October 27, 1987, pp. 10447–9). In ruling on the matter on November 17, 1987, the Speaker indicated that he was unable to find anything which would extend parliamentary privilege to the actions of the staff of a Member. Indeed, the Speaker contended that even with the direct involvement of the Member, he could not find that a prima facie case of privilege existed. With regard to the Member’s status as an Opposition critic to the Solicitor General, the Speaker stated that although the position may bring extra responsibilities, it does not afford any special privileges above those of any other Member (Debates, November 17, 1987, pp. 10887–9).

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