PARLIAMENT of CANADA
House of Commons Procedure and Practice
Edited by Robert Marleau and Camille Montpetit
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3. Privileges and Immunities

Procedure for Dealing with Matters of Privilege

The House of Commons is certainly the most important secular body in Canada. It is said that each House of Parliament is a “court” with respect to its own privileges and dignity and the privileges of its Members. The purpose of raising matters of “privilege” in either House of Parliament is to maintain the respect and credibility due to and required of each House in respect of these privileges, to uphold its powers, and to enforce the enjoyment of the privileges of its Members. A genuine question of privilege is therefore a serious matter not to be reckoned with lightly and accordingly ought to be rare, and thus rarely raised in the House of Commons. [316] 

Any claim that privilege has been infringed or a contempt committed is raised in the House by means of a “question of privilege”. The procedure with respect to raising a question of privilege is governed by both the Standing Orders and practice. A question of privilege is a matter for the House to determine. The decision of the House on a question of privilege, like every other matter which the House has to decide, can be elicited only by a question put from the Chair by the Speaker and resolved either in the affirmative or in the negative, and this question is necessarily founded on a motion made by a Member.

This section will describe the manner in which such matters are dealt with by the House. [317]  (See Figure 3.1 at the end of this chapter depicting the path of a question of privilege from the time it is raised until it is disposed of.)

Manner of Raising Matters of Privilege

Great importance is attached to matters involving privilege. A Member wishing to raise a question of privilege in the House must first convince the Speaker that his or her concern is prima facie (on the first impression or at first glance) a question of privilege. The function of the Speaker is limited to deciding whether the matter is of such a character as to entitle the Member who has raised the question to move a motion which will have priority over Orders of the Day; that is, in the Speaker’s opinion, there is a prima facie question of privilege. If there is, the House must take the matter into immediate consideration. [318]  Ultimately, it is the House which decides whether a breach of privilege or a contempt has been committed.

Matters relating to privilege may also arise in standing, special, legislative and joint committees, and in a Committee of the Whole House. However, the procedures for dealing with such situations in committee differ from the general procedure followed in the House.

If a Member believes that a breach of privilege or a contempt has occurred, but does not feel that the matter should have priority in debate, the Member may follow an alternate route for bringing the matter before the House. He or she may place a written notice of a motion on the Notice Paper.

In the House

A complaint on a matter of privilege must satisfy two conditions before it can be accorded precedence over the Orders of the Day. First, the Speaker must be convinced that a prima facie case of breach of privilege has been made and, second, the matter must be raised at the earliest opportunity. If in the opinion of the Speaker these two conditions have been met, then the Speaker informs the House that, in his or her opinion, this matter is entitled to take precedence over the notices of motions and Orders of the Day standing on the Order Paper. The Speaker’s ruling does not extend to deciding whether a breach of privilege has in fact been committed — a question which can only be decided by the House itself.

Time of Raising and Notice Requirements

A question of privilege arising out of the proceedings during the course of a sitting may be raised immediately without notice. However, Speakers have disallowed questions of privilege during Statements by Members and Question Period, [319]  the process of Royal Assent, [320]  as well as during the Adjournment Proceedings, [321]  and divisions. [322]  In such circumstances, the question of privilege may be raised at the end of the time provided for such business on that day. [323]  A matter of privilege related to the Adjournment Proceedings would be raised at the next sitting, following the proper notification to the Speaker. [324] 

A Member wishing to raise a question of privilege which does not arise out of the proceedings during the course of a sitting must give notice before bringing the question to the attention of the House. The Member must provide a written statement to the Speaker at least one hour before raising the question of privilege in the House. If such notice is not given, the Speaker will not allow the Member to proceed. [325]  Speakers have also ruled that oral notice is neither necessary nor sufficient. [326]  Questions of privilege for which written notice has been given are raised at specific times, namely on the opening of the sitting, following Routine Proceedings but before Orders of the Day, immediately after Question Period, and, occasionally, during a debate.

The notice submitted to the Speaker should contain four elements:

  1. It should indicate that the Member is writing to give notice of his or her intention to raise a question of privilege.
  2. It should state that the matter is being raised at the earliest opportunity. [327] 
  3. It should indicate the substance of the matter that the Member proposes to raise by way of a question of privilege. [328] 
  4. It should include the text of the motion which the Member must be ready to propose to the House should the Speaker rule that the matter is a prima facie case of privilege.

By providing the Chair with a context for the question of privilege and a proposed remedy for the problem, the Member will assist the Speaker to deal with the issue in an informed and expeditious manner. The inclusion of the text of the proposed motion allows the Speaker the opportunity to suggest changes to avoid any procedural difficulties in the wording; otherwise, the Member might be prevented or delayed from moving the motion should the Speaker rule the matter a prima facie question of privilege. [329] 

Raising at the First Opportunity

The matter of privilege to be raised in the House must have recently arisen and must call for the immediate action of the House. Therefore, Members must satisfy the Speaker that the matter has been raised at the earliest opportunity. When a Member does not fulfil this important requirement, the Speaker has ruled that the matter is not a prima facie question of privilege. [330]  In instances where more than one Member is involved in a question of privilege, the Speaker may postpone discussion until all concerned Members can be present in the House. [331] 

Multiple Notices

Should the Speaker receive more than one notice of a question of privilege, or should more than one Member seek the floor on a specific question of privilege, the Speaker will determine the order in which the Members will be recognized. [332]  Generally, the Speaker will recognize Members in the order in which the notices were received, or recognize the first Member who catches the Speaker’s eye. If more than one matter is being raised, the Speaker will hear Members on one question of privilege at a time.

Initial Discussion of Matter Raised

A Member recognized on a question of privilege is expected to be brief and concise in explaining the event which has given rise to the question of privilege and the reasons why consideration of the event complained of should be given precedence over other House business. [333]  Generally, the Member tries to provide the Chair with relevant references to the Standing Orders, precedents and citations from procedural authorities. In addition, the Member demonstrates that the matter is being brought to the House’s attention at the first opportunity. Finally, the Member should state what corrective House action is being sought by way of remedy and indicate that, should the Speaker rule the matter a prima facie question of privilege, he or she is prepared to move the appropriate motion. [334] 

The Speaker will hear the Member and may permit others who are directly implicated in the matter to intervene. The Speaker also has the discretion to seek the advice of other Members to help him or her in determining whether there is prima facie a matter of privilege involved which would warrant giving the matter priority of consideration over all other House business. When satisfied, the Speaker will terminate the discussion. [335] 

The decision as to the existence of a prima facie question of privilege belongs exclusively to the Speaker who may take the matter under advisement to permit a considered judgement in all but the clearest of cases. When a question of privilege has required an immediate decision of the Chair, the Speaker has, without objection, suspended the sitting for a short time to deliberate on the matter, and has then returned to the House with a ruling. [336]  In deliberating upon the matter, the Chair will take into account the extent to which the matter complained of infringed upon any Member’s ability to perform his or her parliamentary duties or appears to be a contempt against the dignity of Parliament.

If the Speaker is satisfied that the necessary conditions have been met and finds a prima facie breach ofprivilege or contempt, the decision is announced to the House. As soon as the Chair has apprised the House that a prima facie case of privilege has been found, the Member raising the matter is immediately allowed to move a motion.

In the vast majority of cases, the Chair decides that a prima facie case of privilege was not made. In informing the House of such a decision, the Chair customarily explains (often in some detail) the factors which resulted in this finding. However, in such cases, the Chair will often acknowledge the existence of a genuine grievance and may recommend avenues of redress. [337]  If the Speaker rules that there is not a prima facie question of privilege, the matter ends there. However, if in the future additional information comes to light, the Member who raised the question of privilege or any other Member may raise the matter again. [338] 

Debate on a Privilege Motion

After the Speaker has decided that a matter is a prima facie question of privilege, it is left to the Member raising the matter to move the appropriate motion; [339]  like all motions, it must be seconded. Occasionally, the Member will propose a motion at the end of his or her arguments when initially raising the question of privilege. Under these circumstances, the Speaker may advise the Member on the proper form of the motion. [340]  In cases where the motion is not known in advance, the Speaker may provide assistance to the Member if the terms of the proposed motion are substantially different from the matter originally raised. [341]  The Speaker would be reluctant to allow a matter as important as a privilege motion to fail on the ground of improper form. [342]  In Canadian practice, the terms of the motion have generally provided that the matter be referred to committee for study or have been amended to that effect. [343] 

Once the motion is properly moved and proposed to the House, it is subject to all the procedures and practices relating to debate on a substantive motion. The speeches are limited to 20 minutes, followed by a 10-minute questions and comments period. [344]  Only the Prime Minister and the Leader of the Opposition are permitted unlimited debating time (with no period for questions or comments). Members are subject to the rules of relevance and repetition and the Speaker must ensure that the debate is focussed on the terms of the motion.

When the motion being considered touches on the conduct of a Member, he or she may make a statement in explanation and then should withdraw from the Chamber. [345]  The Chair has interpreted “conduct” to refer to actions which, if proven, could result in the expulsion of a Member from the House on the grounds that he or she is unfit for membership, as opposed to actions which could lead to a Member being “named” by the Speaker. [346]  However, it is not always clear that Members whose conduct was under consideration actually withdrew from the Chamber. [347]  In some circumstances, a Member may be allowed to return to the Chamber in order to clarify or explain particular matters.

A privilege motion once under debate has priority over all Orders of the Day including Government Orders and Private Members’ Business. However, the debate does not interfere with the regular holding of Routine Proceedings, Statements by Members, Question Period, Royal Assent and the adjournment of the House. [348] 

Once the privilege motion is before the House, it may be amended by the House, even if the amendment results in the text of the motion differing from the one originally accepted by the Speaker and proposed to the House. [349] 

During the proceedings on a privilege motion, motions to adjourn the debate, to adjourn the House, or to proceed to Orders of the Day are in order, [350]  as are motions for the previous question (“that this question be now put”), for the extension of the sitting, or “that a Member be now heard”. However, should the previous question be negatived, or a motion to proceed to Orders of the Day be adopted, then the privilege motion is superseded and dropped from the Order Paper. Closure may also be moved on the privilege motion by a Minister. [351] 

Should debate on a privilege motion not be completed by the time of adjournment, then on the next sitting day the item will take priority over all other Orders of the Day and will appear on the Order Paper before all other Orders of the Day. [352] 

When debate has concluded on the motion, the Speaker will put the question to the House. If the motion is adopted, then the terms of the motion will be implemented. If the motion is defeated, the proceedings are ended. [353] 

In Standing, Special, Legislative and Joint Committees

Since the House has not given its committees the power to punish any misconduct, breach of privilege, or contempt directly, committees cannot decide such matters; they can only report them to the House. Only the House can decide if an offence has been committed. [354]  Speakers have consistently ruled that, except in the most extreme situations, they will only hear questions of privilege arising from committee proceedings upon presentation of a report from the committee which directly deals with the matter and not as a question of privilege raised by an individual Member. [355]  Most matters which have been reported by committees concerned the behaviour of Members, witnesses or the public. Committees have reported to the House on the refusal of witnesses to appear when summoned; [356]  the refusal of witnesses to answer questions; [357]  the refusal of witnesses to provide papers or records; [358]  the refusal of individuals to obey orders of a committee; [359]  and the divulging of events during an in camera meeting. [360]  Committees could report on instances of contempt, such as behaviour showing disrespect for the authority or activities of a committee, the intimidation of members or witnesses, or witnesses refusing to be sworn or lying to the committee.

Unlike the Speaker, the Chair of a committee does not have the power to censure disorder or decide questions of privilege. Should a Member wish to raise a question of privilege in committee, or should some event occur in committee which appears to be a breach of privilege or contempt, the Chair of the committee will recognize the Member and hear the question of privilege, or in the case of some incident, suggest that the committee deal with the matter. The Chair, however, has no authority to rule that a breach of privilege or contempt has occurred. [361]  The role of the Chair in such instances is to determine whether the matter raised does in fact touch on privilege and is not a point of order, a grievance or a matter of debate. If the Chair is of the opinion that the Member’s interjection deals with a point of order, a grievance or a matter of debate, or that the incident is within the powers of the committee to deal with, then the Chair will rule accordingly, giving reasons. The committee cannot then consider the matter further as a question of privilege. Should a Member disagree with the Chair’s decision, then the Member can appeal to the committee, which can sustain or overturn the Chair’s decision.

If in the opinion of the Chair the issue raised relates to privilege (or if an appeal should overturn a Chair’s decision that it does not touch on privilege), then the committee can proceed to the consideration of a report on the matter to the House. [362]  The Chair will then entertain a motion which will form the text of the report. It should clearly describe the situation, summarize the events, name any individuals involved, indicate that privilege may be involved or that a contempt may have occurred, and request the House to take some action. [363]  The motion is debatable and amendable, and will have priority of consideration in the committee. If the committee decides that the matter should be reported to the House, it will adopt the report which will be presented to the House at the appropriate time during the Daily Routine of Business.

Once the report has been presented, the House is formally seized of the matter. [364]  After having given the appropriate notice, [365]  any Member may then raise the matter as a question of privilege. The Speaker will hear the question of privilege and may hear other Members on the matter, before ruling on the prima facie nature of the question of privilege. As Speaker Fraser noted in a ruling, “ … the Chair is not judging the issue. Only the House itself can do that. The Chair simply decides on the basis of the evidence presented whether the matter is one which should take priority over other business.” [366]  Should the Speaker rule the matter a prima facie question of privilege, the next step would be for the Member who raised the question of privilege to propose a motion asking the House to take some action. [367] Should the Speaker rule that there is no prima facie question of privilege, no priority would be given to the matter. As with any committee report, any Member may still seek concurrence in the report by following the normal procedures during the Daily Routine of Business. [368]

In a Committee of the Whole

Given that the House infrequently sits as a Committee of the Whole, and that when it does, the proceedings are typically completed in a matter of minutes, questions of privilege are not often raised today in a Committee of the Whole. [369] The practice regarding the raising of questions of privilege in a Committee of the Whole is virtually identical to that for standing, special, or legislative committees.

When the House sits as a Committee of the Whole, a Member may raise a question of privilege only on matters which have occurred in the Committee. The question of privilege must be relevant to the proceedings in the Committee. A Member may not raise as a question of privilege matters affecting the privileges of the House in general or something which has occurred outside the Chamber. In a Committee of the Whole, a Member wishing to raise a question of privilege about something that does not concern the Committee may move a motion that the Committee rise and report progress in order that the Speaker may hear the question of privilege. [370]  If the motion is adopted, the Chairman will rise and report to the Speaker who will then hear the Member. [371] 

If a Member rises on a question of privilege which is relevant to the proceedings in a Committee of the Whole, the Chairman will hear the question of privilege. As in a standing, special, or legislative committee, the role of the Chairman is to decide whether the matter raised does in fact relate to privilege. [372]  Again, that decision may be appealed. However, such an appeal is not to the Committee of the Whole, but rather to the Speaker. [373]  If the matter raised by the Member touches on privilege and relates to events in the Committee of the Whole, the Chairman will entertain a motion that the events be reported to the House. The motion is debatable and amendable, and has priority of consideration in the Committee. If the Committee agrees to report the matter, the Chairman then rises, the Speaker resumes the Chair and the Chairman reports. [374]  The text of the report to the House should summarize the events, indicate that privilege may be involved, and include a request for the Committee to sit again to consider its business. [375] 

Only after the Chairman has reported to the House, may the matter be properly brought before the House and the Speaker deal with it. A Member should rise on a question of privilege and put the matter before the Speaker, who may allow interventions on the matter. When satisfied, the Speaker will rule whether or not it is a prima facie question of privilege. If a prima facie case of privilege is found, the Member may move a motion dealing with the matter. [376] If the Speaker finds that there is no prima facie question of privilege, then the House will resume its regular business. Under “Orders of the Day”, the House may sit again as a Committee of the Whole to resume consideration of the matter originally before it, or the House may proceed to another Order of the Day.

The Speaker will entertain a question of privilege in regard to a matter that occurred in a Committee of the Whole only if the matter has been dealt with first in the Committee of the Whole and reported accordingly to the House. [377] 

By Way of Written Notice on the Notice Paper

If a Member believes that a breach of privilege or a contempt has occurred, but does not feel that the matter should have priority in debate, in a procedure very rarely resorted to, the Member may place a written notice of motion on the Notice Paper. In this instance, at the conclusion of the required notice period, the motion is placed under the appropriate heading on the Order Paper. When sponsored by a Minister, the motion requires a 48 hours’ notice period and will be considered by the House when called under Government Orders. [378]  When sponsored by a private Member, the motion requires a notice period of two weeks and will be placed under Private Members’ Business. [379] 

However, following the appropriate notice period, the Member in whose name the item stands may decide to seek priority in debate for the motion (e.g., if new information were to come to light). The Member must then seek to convince the Speaker that the matter raised in the motion should be considered a prima facie question of privilege. In such a case, the Member would be required to notify the Speaker at least one hour before raising the matter in the House. [380] 

Historically, there have been a number of occasions when Members have chosen to give written notice of their motions of privilege, particularly in cases where the matter stemmed from events occurring outside the House. In 1874, for instance, a motion for which written notice had been given, and which was not likely to arise on a particular day, was taken up before its turn, displacing scheduled business. [381]  A similar case in 1886 saw a motion taken up before its turn at the request of the Member attacked in the motion. [382]  Yet, it was not always so easy and, in two rare cases in 1892, motions for which written notice had been given were refused precedence as the Speaker judged them not to contain true matters of privilege. [383]  Furthermore, in cases involving a motion amounting to a charge against a Member, etiquette required that the sponsor of such a motion privately advise the Member concerned when the motion would be moved. [384] 

These practices endured into the twentieth century, and oral and written notices, although not required, were both common when questions of privilege were raised. In 1911, for example, a matter of privilege was raised following oral notice, [385]  while in 1932, a motion regarding charges which had been made against the Prime Minister was taken up after written notice had been given. [386]  There were other cases where matters were raised without any notice. [387] 

Eventually, an attempt was made to convince the Speaker to take a notice of motion out of sequence because it appeared to involve privilege. In June 1959, the Leader of the Opposition gave notice of a motion in which he questioned the conduct of a Member on the government side. The Speaker, who had not ruled on whether or not it should be given precedence, sought the advice of the House. [388]  After a lengthy discussion on this point, the Speaker was able to arrive at the conclusion, in keeping with the recently established criteria guiding Speakers on questions of privilege, that, prima facie, no matter of privilege appeared to exist and that therefore he would not allow other business to be set aside to debate the motion. [389]  As a result, the motion stayed on the Order Paper and was never reached.

A written notice of motion, dealing with an alleged contempt of the House, was placed on the Notice Paper on February 27, 1996. The text of the motion, sponsored by Don Boudria (Glengarry–Prescott–Russell), accused Ray Speaker (Lethbridge) of attempting to put pressure on the Speaker to recognize the Reform Party as the Official Opposition. The motion further declared that this constituted a contempt of Parliament and ordered that the Member for Lethbridge be admonished at the Bar of the House by the Chair. The motion had been placed on the Order Paper under Private Members’ Business [390]  and had subsequently been chosen for debate after a random draw on March 4, 1996. The Standing Committee on Procedure and House Affairs had not, however, selected the motion to come to a vote.

On May 9, 1996, the day before the motion would, in accordance with the order of precedence for Private Members’ Business, be called for debate, Mr. Speaker (Lethbridge) raised a point of order in the House to question whether a motion which was not votable could be used to make a charge against another Member. The Acting Speaker informed the House that the motion would not be called the next day because Mr. Boudria could not be present, and that in the meantime the Chair would consider the point of order. [391] 

On June 18, 1996, Speaker Parent ruled that the motion was procedurally acceptable under the rules for Private Members’ Business. He stated, “The hon. Member is quite correct in his assertion that the conduct of a member can be brought before the House only by way of a specific charge contained in a substantive motion. Often, in such cases, members will choose to raise the matter on the floor of the House without giving the required 48-hour or two-week notice and ask the Speaker to give it priority or right of way for immediate consideration by the House, thus putting all other regular House business aside… . In the current circumstances, I find that the rules for Private Members’ Business have been followed and that there is therefore no point of order.” [392]  The Chair also noted that it did not have the authority to make the motion votable. He further pointed out that there were “procedures at the disposal of the House to ensure that a sense of fair play prevails in all its proceedings”. [393]  The Member for Lethbridge immediately raised a question of privilege which would provide a way of resolving the charge made against him by permitting the matter to come to a vote. He argued that allowing the charge to remain unresolved would seriously affect his reputation. After hearing from other Members, the Speaker reserved his decision. [394] 

When he returned to the question on June 20, 1996, the Speaker reminded the House that motions regarding the conduct of Members had in the past been placed on the Order Paper under Private Members’ Business without ever being voted on by the House. Although he could not find there was a prima facie question of privilege, the Speaker suggested that the Member consider pursuing the matter of the non-votable motion with the Standing Committee on Procedure and House Affairs. [395] 

On October 23, 1996, the Speaker announced to the House that Mr. Boudria had advised the Chair in writing that he could no longer move private Members’ motions because of his recent appointment to Cabinet. The Speaker, who has the duty under the Standing Orders of making arrangements for the orderly conduct of Private Members’ Business, thus directed that Mr. Boudria’s motion be removed from the Order Paper[396] 

Committee Consideration of Privilege Matter

If the terms of the privilege motion stipulate that the matter be referred to the Standing Committee on Procedure and House Affairs, then the adoption of the motion by the House constitutes an order of reference to the Committee. The Standing Orders empower the Committee to enquire into all such matters referred to it and to send for persons, papers and records. While the Committee is free to determine its own agenda, both the Committee and the House take such enquiries very seriously. The Committee does not have the power to punish. This power rests with the House. The Committee may only study the matter and report to the House. The conduct of the Committee in investigating a privilege matter is the same as for other business considered by any committee of the House, though the nature of the order of reference would encourage the Committee to proceed cautiously. [397] 

Committee Report

The form of a report of the Standing Committee on Procedure and House Affairs on a matter of privilege is no different from a report of any other committee of the House on a substantive matter. It may or may not contain recommendations for action or punishment [398]  and, if the Committee so orders, it may also have appended to it dissenting or supplementary opinions or recommendations. [399]  Frequently, the report itself may be sufficient to put an end to the matter and no further action is required by the House. [400]  A report may, on the other hand, recommend that the Speaker take some action or that some administrative action be taken. [401]  Just as with most committee reports, following appropriate notice, a Member may move for concurrence which the House may debate. [402] 

A Matter of “Personal Privilege”

The Chair may occasionally grant leave to a Member to explain a matter of a personal nature although there is no question before the House. [403] This is commonly referred to by Members as “a point of personal privilege” and is an indulgence granted by the Chair. There is no connection to a question of privilege, and as Speaker Fraser once noted, “There is no legal authority, procedural or otherwise, historic or precedential, that allows this.” [404]  Consequently, such occasions are not meant to be used for general debate, and Members have been cautioned to confine their remarks to the point they wish to make. [405]  The Speaker has also stated that, as these are generally personal statements and not questions of privilege, no other Members will be recognized to speak on the matter. [406]  Members have used this procedure to make personal explanations, [407]  to correct errors made in debate, [408]  to apologize to the House, [409]  to thank the House or acknowledge something done for the Member by the House, [410]  to announce a change in party affiliation, [411]  to announce a resignation, [412]  or for some other reason. [413] 

Figure 3.1 – The Path of a Question of Privilege
Image depicting, in a series of boxes linked by lines, the steps followed in the House of Commons when a Member raises a question of privilege. At the top of the page, the image shows the process beginning with the raising of the question of privilege, follows in a series of boxes down the page to the Speaker’s options for dealing with the question, and concludes further down the page with what may happen following the Speaker’s ruling.


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