Parliamentary Privilege / Rights of Members; Rights of the House

Exemption from being subpoenaed to attend court as a witness: parliamentary privilege invoked as a reason for non-attendance at a court hearing; prima facie

May 26, 2003

Debates, pp. 6413-5

On May 12, 2003, Don Boudria (Minister of State and Leader of the Government in the House of Commons) rose on a question of privilege arising from the claim of parliamentary privilege by Paul Martin (LaSalle–Émard) as a reason for failing to attend certain court proceedings for which he had been subpoenaed. The Government House Leader noted that while the British Columbia Court of Appeal had confirmed that parliamentary privilege released Members of Parliament from the obligation to participate in legal proceedings when Parliament was in session, it had ruled that there was no legal basis for extending this privilege 40 days before or after a parliamentary session. The Government House Leader argued that it is the role of Parliament, not the courts, to define what parliamentary privilege is. Further, he claimed that the House has a fundamental right to the attendance and service of its Members. After hearing from other Members, the Speaker took the matter under advisement.^[1]

On May 16, 2003, the Government House Leader raised a further question of privilege arising from a ruling of the Ontario Superior Court on May 14, 2003, with respect to the failure of John Manley (Minister of Finance) to appear before that Court. He explained that, although that Court had also confirmed the privilege of Members not to attend court proceedings when Parliament is in session, it had asserted that this privilege should be limited to the period when Parliament was actually sitting and for 14 days after it adjourned. The Government House Leader stated that the Court’s attempt to define parliamentary privilege was an attack on the privileges of Members, and that any alteration of its privileges would be for the House alone to decide.^[2]

On May 26, 2003, the Speaker delivered his ruling. He reaffirmed that parliamentary privilege is not a matter for the courts but for Parliament to decide on, and that “judges must look to Parliament for precedents on privilege, not to rulings of their fellow judges, since it is in Parliament where privilege is defined and claimed”. He explained that while a Member’s immunity from testifying in court during a parliamentary session is a personal privilege, it does not exist for a Member’s personal benefit, but rather for the benefit of the House. He noted that the British Columbia Court of Appeal allowed the 40-day period at the beginning and end of a session with respect to the freedom from civil arrest while not allowing it with respect to the freedom from testifying in court. Similarly, the Ontario Superior Court had erred by not making a distinction between a session and a sitting when it ruled that Members were available during adjournment periods for matters such as court appearances. The Speaker then took the opportunity to remind the House that parliamentary privilege exists to ensure that the other branches of Government respect the independence of the legislative branch of Government. In view of this, he ruled there were, prima facie, two breaches of the privileges of the House. He then invited the Government House Leader to move his motion.

Decision of the Chair

The Speaker: I am now prepared to rule on the questions of privilege raised by the hon. Government House Leader on May 12, 2003, and on May 16, 2003, arising from a decision of the British Columbia Court of Appeal in respect of the hon. Member for LaSalle–Émard, and a decision of the Ontario Superior Court in respect of the hon. Member for Ottawa South, where the court in each case has set aside the parliamentary privileges of the hon. Members and has required them to testify pursuant to a subpoena issued by the court.

I would like to thank the hon. Government House Leader for having raised this important issue, as well as the hon. Members for West Vancouver–Sunshine Coast, Roberval, Vancouver East and St. John’s West for their comments on May 12th when this point was first raised.

The hon. Government House Leader when first raising this point indicated that, while he had informed the hon. Member for LaSalle–Émard of his intention to raise this question, he was not doing so on the latter’s behalf but out of a concern for the privileges of [the]^[3] House.

The hon. Member drew to the attention of the House that, in a ruling delivered by the British Columbia Court of Appeal in the Ainsworth case on April 23, 2003, a finding of contempt had been made against the hon. Member for LaSalle–Émard as a result of his failure to appear before the Court when summoned.

The hon. Government House Leader went on to point out that as Joseph Maingot indicates on page 161 of Parliamentary Privilege in Canada, Members of Parliament are exempt from being subpoenaed while the House is in session and for 40 days both before and after a session. The British Columbia Court of Appeal, on the other hand, claimed it could find no support for the 40-day rule and held that the privilege was restricted to days when the House was in session.

The hon. Government House Leader emphasized the importance of the independence of the House and its right to insist on the attendance of its Members, and that it is this House, and not some outside body, which must determine the interpretation of the rights and privileges of this place.

The hon. Member for West Vancouver–Sunshine Coast, in his intervention, while recognizing the need for parliamentary privilege, pointed out as well the need for an even-handed application of privilege with respect to the rights of other Canadians. He suggested that it might be appropriate for the House to revisit its current interpretation of the immunity that its privileges provide.

Recognizing the special requirements of the House which make privilege necessary, both the hon. Member for Vancouver East and the hon. Member for St. John’s West spoke of the need to ensure that other citizens are not adversely affected by those privileges. In particular, they expressed concern that the blind application of the right of Members such as the right not to be compelled to appear before a court as a witness might interfere unduly with the rights of others.

At the same time, they shared the view expressed by the hon. Member for Roberval that privilege is a matter of fundamental importance to the House and that it is here, and not elsewhere, that these issues should be decided.

In his point of privilege on May 16, the Government House Leader characterized the decision of the Ontario Court as an attack on the privileges of hon. Members more serious than the earlier court decision in British Columbia. The Ontario Court’s decision, according to the Government House Leader, was “an intrusion by the courts in improperly attempting to define what is parliamentary privilege” and that he did not think it “appropriate for a court to define what is parliamentary privilege in our country”.

The privileges of Parliament are fundamental to the standing of this House as the democratically elected Chamber representing the interests of Canadians from sea to sea to sea. There are several privileges and the privilege at the heart of the issue raised by the Government House Leader is the privilege that holds Members of Parliament free from civil arrest or summons during the sessions of Parliament including a period of 40 days before and 40 days after a session. These privileges have their origins in British parliamentary law.

The well known British parliamentary text, Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, the most eminent authority on parliamentary procedures and practices, including parliamentary privilege, first published in 1844 and now in its 22nd edition, explains parliamentary privilege and provides numerous authorities that have affirmed the privileges of Members of Parliament as a matter of English parliamentary law. According to this learned text:

Parliamentary privilege is the sum of the peculiar rights enjoyed by each House collectively as a constituent part of the High Court of Parliament, and by Members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. Thus privilege, though part of the law of the land, is to a certain extent, an exemption from the general law. Certain rights and immunities such as freedom from arrest or freedom of speech belong primarily to individual Members of each House and exist because the House cannot perform its functions without unimpeded use of the services of its Members. Other rights and immunities such as the power to punish for contempt and the power to regulate its own constitution belong primarily to each House as a collective body, for the protection of its Members and the vindication of its own authority and dignity.

It is interesting to note that just as a court has an undoubted right to cite persons in contempt who obstruct its proceedings or offend the dignity of the court, the same power is necessarily available to the Houses of Parliament. According to the Erskine May text:

The power to punish for contempt has been judicially considered to be inherent in each House of Parliament not as a necessary incident of the authority and functions of a legislature (as might be regarded in respect of certain privileges) but by virtue of the lex et consuetudo parliamenti.

The Latin phrase could be translated as the law and custom of Parliament.

The Erskine May text provides a number of nineteenth century judicial considerations affirming parliamentary privilege which I need not cite here as it seems to me inappropriate to do so for the very simple reason that parliamentary privilege has not been a matter determined by the courts, but rather by assertion of Parliament. The history of conflict between the English House of Commons and the Crown in the seventeenth century where the King arrested some Members of Parliament, shows clearly that parliamentary privilege had its origins in assertion by the House of Commons against the Crown and not by any rulings of judges who are, after all, officers appointed by the Crown. With Confederation in 1867 this House became both the heir and beneficiary of this history.

The parliamentary privilege challenged by the two recent court decisions, that is, the immunity from testifying in court during a parliamentary session, is a personal privilege enjoyed by individual Members of Parliament, not for their personal benefit but for the benefit of the House and, according to the parliamentary law texts, is treated the same as the freedom from civil arrest during a session. In this regard, the Erskine May text says the following:

The privilege of exemption of a Member from attending as a witness has been asserted by the House upon the same principle as other personal privileges, viz, the paramount right of Parliament to the attendance and service of its Members.

The discussion in May illustrates how ancient is this privilege as it harks back to a citation in Hatsell, on page 170, which states:

On the 13th of February, 1605, Mr. Stepney [a Member of Parliament] complains that seven days before this Session, he was summoned upon a Subpoena in the Star Chamber: On the 14th this matter is examined into, and referred to the Committee of Privileges; on the 15th, it is ordered, “that Mr. Stepney shall have privilege, and that Warren, who served the process, be committed to the Serjeant for three days”.

British parliamentary privilege came to Canada with enactment of the British North America Act of 1867. Section 18 of the 1867 Act gave the Parliament of Canada all the privileges then possessed by the British Parliament. It reads, in part:

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.

The Parliament of Canada Act, in section 4, provides as follows:

The Senate and the House of Commons, respectively, and the members thereof hold, enjoy and exercise

(a) such and the like privileges, immunities and powers as, at the time of the passing of the Constitution Act, 1867, were held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom and by the members thereof, insofar as it is consistent with that Act; and

(b) such privileges, immunities and powers as are defined by Act of the Parliament of Canada, not exceeding those, at the time of the passing of the Act, held, enjoyed and exercised by the Commons House of the United Kingdom and by the members thereof.

Thus it is clearly established that the parliamentary privileges forming part of the parliamentary law and custom of England came to be part of the parliamentary law of Canada today. This was confirmed in 1993 by the Supreme Court of Canada, in the case of New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly). Madame Justice McLachlin, as she then was, speaking with the majority on the decision, spoke of the:

… manifest intention expressed in the preamble of our Constitution that Canada retain the fundamental constitutional tenets upon which British parliamentary democracy rested. This is not a case of importing an unexpressed concept into our constitutional regime, but of recognizing a legal power fundamental to the constitutional regime which Canada has adopted in its Constitution Acts, 1867 to 1982. Nor are we here treating a mere convention to which the courts have not given legal effect; the authorities indicate that the legal status of inherent privileges has never been in doubt.

More importantly, Chief Justice McLachlin, as she now is, affirmed the necessary independence of the legislative branch of Government when she also said in her judgment in this case:

It has also long been accepted that these privileges must be held absolutely and constitutionally if they are to be effective; the legislative branch of our government must enjoy a certain autonomy which even the Crown and the courts cannot touch.

The B.C. court allowed the 40-day periods at the beginning and end of each session with respect to freedom from civil arrest but not with respect to freedom from testifying in court. This distinction is not supported by the parliamentary authorities.

The Ontario court did not see the distinction between a session and a sitting of the House and seemed to believe that between sittings, that is, during adjournment periods, Members of Parliament were, if you like, on holiday. The court relied on a dictionary definition of “in session” which included the meaning “not on vacation” and the judge emphasized this by underlining. From this, the judge felt Members of Parliament were available for other matters, such as court appearances. The court’s confusion of a session with a sitting, on the one hand, and its idea of a parliamentary holiday, on the other, are clearly contrary to the parliamentary authorities.

The House requires the availability of its Members throughout an entire session as well as for the traditional 40-day period before and after the start and end of a session. Erskine May points out that the immunity from subpoenas is based on the same principle as other personal privileges; that is, the paramount right of Parliament to the attendance and service of its Members.

The May text recounts as the general opinion of the British legal authorities, founded on ancient law and custom, that the privilege of freedom from arrest remains with a Member of the House for 40 days after every prorogation and 40 days before the next session and that this extent of privilege has been allowed by the English courts of law on the ground of usage and universal opinion.

Canadian parliamentary authorities, such as the Maingot text on parliamentary privilege, reflect these same views with respect to the parliamentary law of Canada. And the Supreme Court of Canada has said that parliamentary privilege forms part of the constitutional law of Canada.

We have parliamentary privileges to ensure that the other branches of Government, the executive and the judicial, respect the independence of the legislative branch of Government, which is this House and the other place. This independence cannot be sustained if either of the other branches is able to redefine or reduce these privileges.

It has been my clear understanding that periods of 40 days at the beginning and at the end of a session were included in the sessional period to which this privilege applied. I recall for the House a 1989 ruling in this House, which both courts seem to have completely overlooked or blindly ignored, where Mr. Speaker Fraser asserted this privilege:

Let me state for the record that the right of a Member of Parliament to refuse to attend court as a witness during a parliamentary session and during the 40 days preceding and following a parliamentary session is an undoubted and inalienable right supported by a host of precedents.

Mr. Speaker Fraser did not treat this matter lightly when he added in his ruling:

I take a serious view of the action of a member of the legal profession in questioning the right of a Member of Parliament to claim immunity from appearing as a witness and alleging that a court, and not Parliament, had the power to make a determination in such a case.

In my view, Mr. Speaker Fraser correctly defended this privilege, and it is my duty and privilege to do so again today. The privileges of this House and its Members are not unlimited, but they are nonetheless well established as a matter of parliamentary law and practice in Canada today, and must be respected by the courts. Judges must look to Parliament for precedents on privilege, not to rulings of their fellow judges since it is in Parliament where privilege is defined and claimed.

Accordingly, I find there is here prima facie evidence of two breaches of the privileges of the House and I invite the Government House Leader to put his motion.

The Government House Leader moved that the question of the immunity of Members of the House from being compelled to attend court during, immediately before, and immediately after a session of Parliament be referred to the Standing Committee on Procedure and House Affairs. The motion was agreed to.^[4] On November 12, 2003, the Second Session of the Thirty-Seventh Parliament was prorogued.

On February 6, 2004, Garry Breitkreuz (Yorkton–Melville) rose on a question of privilege to bring to the Speaker’s attention the fact that, as a result of the prorogation, the Committee’s Order of Reference had lapsed before it had completed its study on the matter. He asked that the Speaker rule the matter to be a prima facie question of privilege again, and allow him to move a motion to refer the matter again to the Committee. Noting that in the previous session he had ruled the matter prima facie, the Speaker declared that the matter remained a question of privilege and invited Mr. Breitkreuz to move his motion. Mr. Breitkreuz moved that the matter of the questions of privilege originally raised on May 12 and May 16, 2003, and February 6, 2004, be referred to the Standing Committee on Procedure and House Affairs. The motion was agreed to.^[5] On March 8, 2004, the Standing Committee presented its Eighth Report which stated that it is for Parliament, and not the courts, to review or modify its privileges, and recommended that the House appoint a committee to undertake a comprehensive review of parliamentary privilege.^[6] (Editor’s Note: The Report was not concurred in.)