3. Privileges and Immunities

Parliamentary privileges were first claimed centuries ago when the English House of Commons was struggling to establish a distinct role for itself within Parliament. In the earliest days, Parliament functioned more as a court than as a legislature, and the early claims to some of these privileges were originally made in this context. ^[15]  In any case, these privileges were found to be necessary to protect the House and its Members, not from the people, but from the power and interference of the King and the House of Lords. Over time, as the House of Commons gained stature and power as a deliberative assembly, these privileges were established as part of the statute and common law of the land.

The House of Commons in Canada has not had to challenge the Crown, its executive, or the Upper House in the same manner as the British House of Commons. The privileges of the British House of Commons were formally transferred to the Canadian Parliament at the time of Confederation through the Constitution Act, 1867 and were put into force by the enactment of a statute now known as the Parliament of Canada Act. ^[16]  Nonetheless, the privileges enjoyed by the House and its Members are of the utmost importance; they are in fact vital to the proper functioning of Parliament. This is as true now as it was centuries ago when the English House of Commons first fought to secure these privileges and rights.

Centuries ago, the British House of Commons began its struggle to win its basic rights and immunities from the King. ^[17]  The earliest cases go back to the fourteenth and fifteenth centuries when several Members and Speakers were imprisoned by the King who took offence at their conduct in Parliament, despite the claims of the House that these arrests were contrary to its liberties. In the Tudor and early Stuart periods, though Parliament was sometimes unable to resist the stronger will of the Sovereign, the conviction continued to be expressed that Parliament, including the House of Commons, was entitled to certain rights. Sir Thomas More, when elected Speaker of the House of Commons in 1523, was among the first Speakers to petition the King to seek the recognition of certain privileges for the House. ^[18]  By the end of the sixteenth century, the Speaker’s petition to the King had become a fixed practice. ^[19] 

Despite these early petitions of the Speaker, the King was not above informing the Commons that their privileges, particularly freedom of speech, existed by his sufferance. James I did this in 1621. In protest, the Commons countered “that every Member of the House of Commons hath and of right ought to have freedom of speech… and… like freedom from all impeachment, imprisonment and molestation (other than by censure of the House itself) for or concerning any speaking, reasoning or declaring of any matter or matters touching the Parliament or parliament business”. ^[20]  In rebuke, James ordered that the Journals of the House be sent to him; he tore out the offending page of protest and then summarily dissolved Parliament. ^[21] 

Nor was privilege able to prevent the detention or arrest of Members at the order of the Crown. On several occasions in the early seventeenth century, Members were imprisoned without trial while the House was not sitting or after the dissolution of Parliament. In 1626, Charles I arrested two Members of the House while it was in session and, in 1629, judgements were brought against several Members for sedition. These outrages by the Crown were denounced after the Civil War and in 1667 both Houses agreed that the judgement against the arrested Members had been illegal and contrary to the privileges of Parliament. ^[22] 

In 1689, the implementation of the Bill of Rights confirmed once and for all the basic privilege of Parliament, freedom of speech. Article 9 states “that the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”. ^[23]  Free speech in the House was now finally established and protected from interference either by the Crown or the courts.

In the late seventeenth century and the first half of the eighteenth century, some claims of the House as to what constituted privilege went too far. The privilege of freedom from arrest in civil matters was sometimes applied not only to Members themselves, but also to their servants. In addition, Members sought to extend their privilege from hindrance or molestation to their property, claiming a breach of privilege in instances of trespassing and poaching. Such practices were eventually curtailed by statute because they clearly became a serious obstruction to the ordinary course of justice. ^[24]  Thus, privilege came to be recognized as only that which was absolutely necessary for the House to function effectively and for the Members to carry out their responsibilities as Members.

In the midst of their occasional excesses, the House of Lords and the House of Commons both acknowledged that a balance had to be maintained between the need to protect the essential privileges of Parliament and, at the same time, to avoid any risk that would undermine the interests of the nation. In this connection, it was agreed in 1704 that neither House of Parliament had any power, by any vote or declaration, to create for themselves any new privileges not warranted by the known laws and customs of Parliament. ^[25]  Since then, neither House alone has ever sought to lay claim to any new privilege beyond those petitioned for by Speakers or already established by precedent and law. ^[26] 

The nineteenth century witnessed numerous cases of privilege, which helped to determine the bounds between the rights of Parliament and the responsibility of the courts. ^[27]  Perhaps the most famous of the court cases was Stockdale versus Hansard. In 1836, a publisher, John Joseph Stockdale, sued Hansard, the printer for the House of Commons, for libel on account of a report published by order of the House. ^[28]  Despite numerous resolutions of the House protesting the court proceedings and the committal to prison of Stockdale by the House, the courts refused to acknowledge the claims of the House. “Lord Denman denied … that the lex parliamenti [the Law of Parliament] was a separate law, unknown to the judges of the common law courts. Either House considered individually was only a part of the High Court of Parliament, and neither could bring an issue within its exclusive jurisdiction simply by declaring it to be a matter of privilege. Any other proposition was ‘abhorrent to the first principles of the constitution.’” ^[29]  In the end, the situation was partially resolved by the enactment of the Parliamentary Papers Act 1840, which gave statutory protection to papers published by order of either House. ^[30] 

Modern Practice in the United Kingdom

While the late eighteenth and nineteenth centuries saw, for the first time, the systematic study of the history of privilege and contempt, ^[31]  the culmination of these efforts to understand and elucidate better the constitutional history of Parliament was achieved in 1946 with the publication of the fourteenth edition of May. This edition presented a thorough and elaborate examination of parliamentary privilege based on an exhaustive examination of the Journals and the principles of the law of Parliament. ^[32]  It also cited instances of misconduct of strangers or witnesses, disobedience to the rules or orders of the House or committees, attempts at intimidation or bribery and molestation of Members or other Officers of the House as cases that more properly involve a contempt of Parliament rather than an explicit breach of an established privilege.

The British House of Commons now takes a more narrowly defined view of privilege than was formerly the case. The change became apparent in 1967 when the Select Committee on Parliamentary Privilege issued a report on the entire subject of privilege. In its report, the Committee noted that the law, practice and procedure relating to privilege at Westminster at that time had been the subject of much criticism. ^[33] 

The general thrust of the Committee’s view of privilege was evident from a recommendation to forsake the term “privilege” for “rights and immunities”. In justifying this proposal, the Committee wrote:

Your Committee have reached the conclusion that the word “privilege” has in modern times acquired a meaning wholly different from its traditional Parliamentary connotation. In consequence its use could convey to the public generally the false impression that Members are, and desire to be, a “privileged class”. It is out of keeping with modern ideas of Parliament as a place of work and of the status of its Membrs as citizens who have been elected to do within that place of work their duty as representatives of those who elected them. Your Committee cannot too strongly emphasise the fundamental principle that “privileges” are not the prerogative of Members in their personal capacities. Insofar as the House claims and Members enjoy those rights and immunities which are grouped under the general description of “privileges”, they are claimed and enjoyed by the House in its corporate capacity and by its Members on behalf of the citizens whom they represent. Your Committee therefore strongly favour the discontinuance of the use of the term “privilege” in its traditional Parliamentary sense. They believe that if the basic concept of “privileges” or “privilege” is abolished, it will be easier to understand and to concentrate upon the provision of the essential protection which is required by the House, its Members and Officers. ^[34] 

The Select Committee accepted the need for the radical reform of the law, practice and procedure relating to privilege and especially contempt, agreeing that they required to be simplified and clarified and to be brought into harmony with contemporary thought. The Committee went further to express the conviction that the recognized rights and immunities of the House “will and must be enforced by the courts as part of the law of the land”. ^[35]  However, with respect to contempts which can extend far beyond the boundaries of those recognized rights and immunities, the Committee proposed that, as a general rule, the House should exercise its authority “ … as sparingly as possible and only when it is satisfied that to do so is essential in order to provide reasonable protection for the House, its Members or its Officers, from such improper obstruction or attempt at or threat of obstruction as is causing, or is liable to cause, substantial interference with the performance of their respective functions”. ^[36] 

The general thrust and conclusions of the 1967 report were reiterated in a subsequent report of the Committee of Privileges in 1977. This Committee again reviewed the meaning of privilege and contempts and again made recommendations to limit their application to cases of clear necessity. Another recommendation concerned a new procedure for raising complaints in the British House. The practice was for matters of privilege to be raised at the earliest opportunity and for the Speaker to be satisfied that a prima facie (on the first impression or at first glance) case had been established. Failing either of these two requirements, the alleged question of privilege forfeited its claim to priority of consideration before all other matters in the House. ^[37]  Under the new scheme proposed by the Committee, Members seeking to raise a privilege complaint would give written notice to the Speaker as soon as was practicable after the Member had become aware of the offending incident. If, however, after consideration, the Speaker did not find that the complaint warranted precedence in the House, the Member would be informed by letter and any attempt to raise the matter of privilege in the House would be out of order. If the Speaker did decide in favour of the complaint, the decision was made known to the House and, on the following day, a motion to refer the matter to committee could be considered. ^[38] 

This recommendation, among others, was implemented. The new procedure had a dramatic effect on the number of claims to privilege raised in the British House. ^[39]  Because a question of privilege first must be cleared through the Speaker privately before it can be brought to the attention of the House at all, there has been a marked decrease in the claims of breaches of privileges. “The use of the word ‘privilege’ to gain the Speaker’s ear and to secure the chance to raise a political issue unrelated to real privilege… is now almost unknown.” ^[40]  There are now far fewer trivial cases referred to the Committee of Privileges. In particular, since 1978, there have been no cases of privilege involving what is often referred to as “constructive contempts”, that is, rude or derogatory reflections on Members. In this sense, the new privilege practice has helped to cure a problem first suggested in the 1967 report that Members of the British House of Commons were too sensitive in their reaction to press criticism. In addition, the total number of privilege matters of all kinds referred to committee has been significantly reduced. Finally, the House usually accepts without debate most of the reports now presented by the Committee of Privileges. Only when the Committee finds that there has been a serious breach of privilege or contempt requiring further action does the House consider the report. ^[41] 

Privilege in the Pre-Confederation British North American Colonies

From the establishment in 1758 of the first legislative assembly in Nova Scotia, the common law accorded the necessary powers to the legislature and its Members to perform their legislative work. “Members had freedom of speech in debate and the right of regulating and ordering their proceedings, and were protected from being arrested in connection with civil cases, because the legislature had first call on their services and attendance.” ^[42]  As to the power of an Assembly in the colonies to punish and more especially imprison for contempt, the situation was not at all clear. ^[43]  In effect, the rights enjoyed by the Assemblies in the pre-Confederation period were quite limited. ^[44]  However, as early as 1758, the House of Assembly of Nova Scotia had an individual arrested and briefly confined because of threats made against a Member of the Assembly. ^[45] 

In Upper and Lower Canada, the Constitutional Act, 1791, adopted by the British Parliament, was silent on the privileges of the Legislatures, although by 1801 the Speaker of the Legislative Assembly in Upper Canada claimed “by the name of the Assembly, the freedom of speech and generally all the like privileges and liberties as are enjoyed by the Commons of Great Britain our Mother Country”. ^[46]  Although it had no statutory authority, the Assembly of Upper Canada proceeded to fight for and assert many of the same privileges, such as freedom from arrest while sitting and freedom from jury duty, claimed by the British Commons. The Assembly also claimed the power to send for and question witnesses and to punish any individual who refused to appear or answer questions, using its power of imprisonment to ensure obedience of its orders. Although challenged on occasion, the Assembly was successful in enforcing its privileges, “which though not recognized de jure, were at least recognized de facto”. ^[47]  In the period prior to responsible government, the Assembly in Upper Canada guarded its reputation by punishing libels against it in the newspapers and also fought for the right to initiate money bills, that is, bills for appropriations and taxation. ^[48]  In general, the Assembly of Upper Canada was satisfied that it could discharge its functions with the privileges it had. ^[49] 

In the same period, the Assembly of Lower Canada also asserted both individual and corporate privileges — freedom from arrest and freedom from the obligation to appear in court with respect to civil suits brought against Members, and the right of the Assembly to punish for contempt, no matter the offender. ^[50]  The Assembly was not afraid to put forward its claims of privilege against the Crown. In 1820, it blocked the conduct of business at the opening of a new Parliament because of a dispute over the return of election writs and again in 1835 over comments made by the Governor about the privileges of the Assembly. ^[51] 

With the Union Act, 1840 which created the Province of Canada out of Upper and Lower Canada, and especially following the achievement of responsible government, issues of privilege were less frequent or serious. This can be attributed to the fact that responsible government acknowledged the supremacy of the Assembly. The Assembly no longer felt threatened by outside bodies and thus was less sensitive to criticism. Members were less likely to be upset when their rights were unintentionally interfered with, and most infractions of privilege were committed by inadvertence. ^[52]  “With respect to individual claims, the Assembly became more careful not to use privilege to gain rights for its members over and above the rights belonging to all.” ^[53] 

As had been the case in the old colonial assemblies, the power to commit or imprison for contempt claimed by the Assembly of the Province of Canada remained an issue. In 1842, it was held “that colonial legislatures had no power to commit for contempt outside the assembly, and in 1866 it was held that they had no power to commit for contempt even when committed in the assembly.” ^[54] 

Privilege Since Confederation

As has already been stated, the privileges of the British House of Commons were transferred to Canada in the Constitution Act, 1867. Section 18 of the Act was quite explicit in limiting the privileges that can be claimed in Canada to those of the British Parliament. It read:

The Privileges, Immunities, and Powers to be held, enjoyed, and exercised by the Senate and by the House of Commons and by the Members thereof respectively shall be such as are from Time to Time defined by Act of the Parliament of Canada, but so that the same shall never exceed those at the passing of this Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland and by the Members thereof. ^[55] 

The privileges, immunities and powers of the House are also embodied in sections 4 and 5 of the Parliament of Canada Act. ^[56] 

The manner in which questions of privilege were raised following Confederation was vastly different from today’s procedure. Dozens of cases between 1867 and 1913 followed the same, simple course. A Member would rise, explain the matter of privilege and conclude with a motion calling on the House to take some action — usually that someone becalled to the Bar or that the matter be referred to the Standing Committee on Privileges and Elections for study and report. At that point, without any intervention on the part of the Speaker, debate would begin on the motion, amendments might be moved and, finally, the House would come to a decision on the matter. ^[57]  The House would then take whatever further action was required by the motion. Perhaps because of the immediate recognition given to Members rising on “questions of privilege”, it was also common throughout this time for Members to take the floor ostensibly to raise such a question, but really to make personal explanations. Members used the claim of a breach of privilege as a ready means to be recognized by the Speaker and to gain the floor in order to state a complaint or grievance of whatever kind. ^[58]  Here, too, they met with little interference from Chair occupants. ^[59]  From 1913 to 1958, while the number of “questions of privilege” blossomed for such purposes as the recognition of school groups in the gallery, congratulatory messages, complaints, grievances and a plethora of procedural matters, in addition to the continued “personal explanations”, ^[60]  the number of legitimate matters of privilege dealt with the House declined dramatically. ^[61] 

Modern practice in matters of privilege first took root following the publication of the fourth edition of Beauchesne’s Parliamentary Rules and Forms in 1958. Beauchesne included a new section, taken from May, 14^th edition, published in 1946, on the manner of raising questions of privilege. ^[62]  This description of the British procedure soon became a handy reference seized upon by successive Speakers, beginning with Speaker Michener, as a way to curtail spurious interventions by Members on non-privilege matters. It introduced two guiding conditions: whether on the first impression (prima facie) the matter raised appeared to be a matter of privilege, and whether the matter was raised as soon as it could have been. Both were to be determined by the Speaker before a debate could proceed. ^[63] Nonetheless, on occasion the House adopted motions on matters of privilege without a ruling of the Speaker. ^[64] 

In the years that followed, successive Speakers kept a tighter rein on “questions of privilege”, even though practice required that the interventions at least be heard, however briefly, before being ruled on. The prima facie condition was invoked most often, although a number of other cases were refused because they were not raised at the proper time. ^[65]  Several cases arose which permitted the Speaker to find that debate on a matter of privilege should go forward, with the result that a body of precedents began to take shape. For example, a 1959 case (known as the Pallett case) led the Speaker to declare that a proposed motion in which the conduct of a Member was alluded to was not, prima facie, a matter of privilege and could not be given precedence because the proposed motion was not a specific complaint against the Member, ^[66]  a ruling frequently cited in subsequent years. ^[67]  In 1964, the Deputy Speaker ruled that questions of privilege could not be raised during proceedings on the adjournment motion, ^[68]  while in 1975 the House adopted a report which recommended that such matters should not be taken up during Question Period. ^[69]  Divisions were also judged an inopportune time for raising questions of privilege on matters not related to the business then before the House. ^[70]  Finally, a number of Speakers, in deciding that a prima facie case did not exist, suggested to the Members concerned that the matter might instead be brought forward through the normal procedure, that is, as a substantive motion after proper notice. ^[71]  By definition, a matter of privilege also involves a substantive proposal which, because it involves the privileges of the House or of its Members, is given precedence with the usual notice requirements being waived.

Privilege Challenged in Court

An examination of privilege in the Canadian context shows that the constitutionally guaranteed privileges of the House have rarely, if ever, been seriously challenged. Indeed, there have been only two significant court actions; one relating to freedom of speech in the House of Commons and the other concerned with the right of a provincial legislature to control its proceedings.

The first matter, dealing with freedom of speech, arose in a judicial setting, rather than in the House of Commons itself. In the case of the Roman Corporation Limited versus Hudson’s Bay Oil and Gas in 1971, an action was brought against the Prime Minister and the Minister of Energy, Mines and Resources for announcements made in the House of Commons. In its ruling, the Ontario Supreme Court disavowed any jurisdiction over statements made in Parliament based on Article 9 of the English Bill of Rights of 1689. ^[72]  However, Speakers have always urged Members not to abuse their privilege in light of the damage that can result through the wide dissemination of their remarks through the official printed reports of the House and the television broadcasts of House proceedings. ^[73] 

The second matter involved the right of the House of Assembly in the province of Nova Scotia, in light of the Canadian Charter of Rights and Freedoms, ^[74]  to exclude strangers from its proceedings. The case involved a claim by the Canadian Broadcasting Corporation (CBC) that its reporters had a constitutional right to film the proceedings of the Nova Scotia House of Assembly with their own cameras. CBC applied to the Nova Scotia Supreme Court for an order allowing it to film the proceedings based on Section 2(b) of the Charter which guarantees freedom of expression, including freedom of the press. The Trial Division and the Court of Appeal both ruled in favour of the CBC and the Speaker of the House of Assembly appealed to the Supreme Court of Canada. ^[75] The Supreme Court allowed the appeal and overturned the decisions of the lower courts, upholding the absolute authority of the Houses of Parliament and of the legislative assemblies to control their proceedings and reasserting the independence of the different branches of government. ^[76] 

Reviews of Rights, Immunities and Privileges

On only three occasions has a committee of the House been specifically charged with a direct order of reference to examine the rights, immunities and privileges of the House. The first of these studies took place in the Thirtieth Parliament (1974-79) when the Special Committee on Rights and Immunities of Members was created under the chairmanship of Speaker James Jerome. The Committee presented two reports, one on privilege in the First Session ^[77]  and one on the sub judice convention in the Second Session. ^[78]  In its report on privilege, the Special Committee stated that the purpose of privilege was “to allow Members of the House of Commons to carry out their duties as representatives of the electorate without undue interference”. Echoing the recommendation of the 1967 British Select Committee, it also found that the term “privilege” was likely to give rise to misconceptions on the part of the public and so preferred the use of the term “rights and immunities”. The Report also stated that a question of privilege is a serious matter, when validly raised, but was frequently resorted to when no real question of privilege was actually involved. It suggested that another mechanism might be devised to enable Members to challenge reports or to correct statements. The Committee further pointed out that when matters of privilege are raised, the Member involved cannot devote full attention to his or her parliamentary duties until the case is disposed of. Therefore, it was considered desirable that cases of privilege be dealt with as swiftly as possible. The Committee also reported on the advisability of arriving at precise definitions for the terms “parliamentary precinct” (particularly taking into account the fact that parliamentary committees meet outside of Ottawa) and “proceedings in Parliament”. It also proposed to examine the premature publication of confidential reports of parliamentary committees and the sub judice convention. In the First Session, the Special Committee did not pursue these matters further. In the succeeding session, the Committee focussed on the sub judice convention. ^[79]

The second committee charged with the examination of the rights, immunities and privileges of the House was the Standing Committee on Elections, Privileges, Procedure and Private Members’ Business in the Second Session (1989-91) of the Thirty-Fourth Parliament (1988-93). ^[80]  While the Committee did take up consideration of the matter, ^[81]  no report on this topic was tabled in the House.

In December 1989, a third committee was created to review the Parliament of Canada Act regarding the powers, duties and obligations of Members, and regarding the authority, responsibilities and jurisdiction of the Board of Internal Economy. ^[82]  While this Special Committee focussed its attention on the provisions of the Act and, in particular, on those provisions governing the expenditure of public funds under the authority of the Board of Internal Economy, it also explored the role and responsibilities of Members of Parliament and the nature of financial controls and accountability, among other matters. ^[83]  In its Second Report, the Special Committee stated that it accepted and endorsed the principle that Members of the House of Commons were not above the law. “Laws must be applied equally to all. Members are not entitled to special treatment, but they deserve assurance that their rights will not be jeopardized or sacrificed. It must be recognized that Members and their activities will be subject to intense public scrutiny.” ^[84]  The Special Committee recommended that the House reaffirm a number of principles which applied to its Members, one of which was “ … that a Member has the constitutional rights and immunities applicable to that office and independence in the performance of the activities and functions of that office free from interference or intimidation… .” ^[85] 

In its Third Report which focussed on the execution of search warrants within the parliamentary precinct, the Special Committee stated as part of its recommendations:

The privileges, immunities and powers of the House of Commons and its Members are established by section 18 of the Constitution Act, 1867, and section 4 of the Parliament of Canada Act. These privileges are intended to enable Members of Parliament to carry out their functions and activities and to represent Canadians. These privileges, immunities and powers must be considered and respected in the execution of search warrants… . ^[86]