PARLIAMENT of CANADA
House of Commons Procedure and Practice
Edited by Robert Marleau and Camille Montpetit
2000 EditionMore information …
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3. Privileges and Immunities

[151] 
A session is one of the fundamental periods into which a Parliament is divided, usually consisting of a number of separate sittings. Sessions are begun by a Speech from the Throne and are ended by prorogation. Adjournments, whether they be for a few minutes or several months, are considered to be within a session.
[152] 
See Bourinot, 4th ed., pp. 45-6; May, 22nd ed., pp. 105-6; Maingot, 2nd ed., pp. 158-9. For a recent discussion of the issue, see Debates, November 25, 1998, pp. 10453-62.
[153] 
Maingot, 2nd ed., p. 158.
[154] 
Maingot, 2nd ed., p. 159.
[155] 
Maingot, 2nd ed., p. 159. 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 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 (May, 22nd ed., p. 105).
[156] 
May, 22nd ed., p. 106.
[157] 
See also David Kilgour and Jef Bowdich, “A serious question of immunity”, The Parliamentarian, October 1989, pp. 233-5.
[158] 
Debates, May 19, 1989, pp. 1951-3.
[159] 
Debates, April 4, 1989, p. 39.
[160] 
Debates, May 19, 1989, pp. 1952-3. In connection with Mr. Kilgour’s claim that communications between a Member of Parliament and a member of the public are privileged in the same manner as those between lawyer and client, the Speaker indicated that there are no precedents to support this claim. He then referred to comments made by Speakers Lamoureux and Jerome, as well as to his own ruling on November 17, 1987, to explain that the House cannot create new or extend existing privileges.
[161] 
Maingot, 2nd ed., p. 160.
[162] 
Maingot, 2nd ed., pp. 230-1.
[163] 
See Chapter 4, “The House of Commons and Its Members”. For a discussion of bribery and the acceptance of fees by Members, see Maingot, 2nd ed., pp. 59-61, 250-1. For a discussion of the 1994 United Kingdom questions for payment case and the resulting institution of a Code of Conduct for Members, see May, 22nd ed., pp. 112-5, 419-20.
[164] 
Maingot, 2nd ed., p. 15. See also May, 22nd ed., pp. 121-30.
[165] 
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).
[166] 
On May 14, 1986, Herb Gray (Windsor West) rose on a question of privilege concerning the proposed inquiry into conflict of interest allegations against the former Regional Industrial Expansion Minister (Sinclair Stevens). The Opposition had maintained that such an inquiry should be carried out by the House itself through one of its committees. The Deputy Prime Minister (Erik Nielsen) had indicated that the inquiry would be undertaken by a person or persons outside the House, and that the inquiry’s terms of reference would include the various statements and allegations made in the House of Commons. Mr. Gray argued that the government was seeking, through executive action, to call into question statements made by Members in the House of Commons, a course of action which would infringe upon their freedom of speech. Mr. Gray also accused the Deputy Prime Minister, through his comments, of attempting to intimidate Members in the exercise of their duties. In his ruling, the Speaker noted that no court or inquiry may call into question or pass judgement on statements made by Members in the House, although it must remain possible to investigate the substance of an allegation once it has been made in the House. It was difficult for the Chair to determine whether the purposes of an inquiry were improper in advance of the inquiry being created since a breach of privilege could not be hypothetical. 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, p. 13362). See also Debates, May 12, 1986, pp. 13171-2; May 13, 1986, p. 13225; May 14, 1986, pp. 13270-3; May 16, 1986, pp. 13361-2.
[167] 
Herb Gray (Windsor West) rose on a question of privilege pertaining to access by certain Members by taxi to Parliament Hill. 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 the Centre Block. However, their way was barred by a roadblock of RCMP cars. Some of the Members proceeded on foot, while others eventually reached the Centre Block by taxi after the roadblock was lifted. Mr. Gray 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 Mr. Gray moved that the matter be referred to the Standing Committee on Elections, Privileges, Procedure and Private Members’ Business. The motion was adopted. The Committee never reported on the matter. See Debates, October 30, 1989, pp. 5298-302; Journals, p. 773.
[168] 
See Debates, February 17, 1999, pp. 12011-2; Journals, February 17, 1999, p. 1517.
[169] 
Debates, February 17, 1999, pp. 12009-12; February 18, 1999, p. 12134; Journals, February 18, 1999, p. 1525. On April 14, 1999, the Standing Committee on Procedure and House Affairs presented its Sixty-Sixth Report to the House (Journals, p. 1714). The Committee suggested that measures be taken to address certain concerns raised in committee. These included better co-ordination between police forces and the House of Commons Security Service, a clearer legal definition of the parliamentary precinct, and an increased public awareness of the importance of the parliamentary precinct (paras. 18-22). The Committee concluded that there was no deliberate intention to contravene parliamentary privilege, that any contempt of Parliament that had occurred was “technical and unintended”, and that there was no need for sanctions (para. 23). No further action was taken on the report.
[170] 
On April 14, 1987, Otto Jelinek (Minister of State for Fitness and Amateur Sport) raised a question of privilege regarding oral questions asked about an alleged conflict of interest involving him. On May 5, 1987, Speaker Fraser ruled that the Minister’s capacity to function as a Minister and a Member was not impaired. See Debates, April 14, 1987, pp. 5124-34; May 5, 1987, pp. 5765-6.
[171] 
Debates, May 5, 1987, p. 5766.
[172]
On February 22, 1978, John Rodriguez (Nickel Belt) rose on a question of privilege complaining of possible surveillance activities undertaken against him. 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. On March 21, after the Speaker had found the question of privilege prima facie, Mr. Rodriguez moved his motion, which was negatived on a recorded division. See Journals, March 21, 1978, pp. 520-2, 525-6; Debates, February 22, 1978, p. 3129; March 1, 1978, pp. 3348-9; March 2, 1978, pp. 3384-5; March 8, 1978, pp. 3571-6; March 9, 1978, pp. 3607-9; March 16, 1978, pp. 3831-2; March 21, 1978, pp. 3975-7, 3988-9.
[173] 
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 Member of Parliament for Parkdale–High Park, listing the address and phone number of Mr. Flis’ former constituency office. In his ruling, the Speaker noted that, based on the evidence available, a prima facie case of privilege must be found. Mr. Writer’s motion to refer the matter to the Standing Committee on Privileges and Elections was then agreed to. 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. See Debates, April 25, 1985, pp. 4111-3; May 6, 1985, p. 4439; Journals, May 30, 1985, pp. 676-7.
[174] 
Debates, May 6, 1985, p. 4439.
[175] 
On November 3, 1978, Allan Lawrence (Northumberland–Durham) raised a question of privilege and 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, the former commissioner of the RCMP 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 then Solicitor General some years earlier. 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 debated over the course of two days and was negatived on a recorded division. See Journals, November 9, 1978, pp. 125-9; December 6, 1978, pp. 221-4; December 7, 1978, pp. 228-9; Debates, November 3, 1978, pp. 777-92; November 8, 1978, p. 924; November 9, 1978, pp. 964-6; December 6, 1978, pp. 1856-77; December 7, 1978, pp. 1892-925.
[176] 
Debates, February 20, 1984, p. 1560. On February 6, 1984, Albert Cooper (Peace River) had risen on 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 was 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, the Minister of Labour (André Ouellet), 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. Mr. Cooper then moved a motion to refer the matter to the Standing Committee on Privileges and Elections. The question was put and the motion was negatived on a recorded division. See Debates, February 6, 1984, pp. 1101-6; February 9, 1984, pp. 1234-5; February 14, 1984, pp. 1382-4; February 20, 1984, pp. 1559-61; Journals, February 20, 1984, pp. 188-9.
[177] 
Don Boudria (Glengarry–Prescott–Russell) rose on a question of privilege concerning alleged threats to a witness who had appeared before a sub-committee. Mr. Boudria 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).
[178] 
Journals, February 18, 1993, p. 2528; February 25, 1993, p. 2568.
[179] 
Standing Committee on House Management, Sixty-Fifth Report, Minutes of Proceedings and Evidence, February 18, 1993, Issue No. 46, p. 9. The Report also quoted May, 21st ed., p. 131: “Any conduct calculated to deter prospective witnesses from giving evidence before either House or a committee is a contempt [of Parliament]… . On the same principle, molestation of or threats against those who have previously given evidence before either House or a committee will be treated by the House as a contempt.”
[180]
See also Chapter 7, “The Speaker and Other Presiding Officers of the House”.
[181] 
The matter was raised by Allan MacEachen (President of the Privy Council) on a motion on matters of urgency moved without notice. The text of the motion read: “That the statement ‘Let it be said of James Jerome that he is not a Speaker but a gambler who plays incredible odds for the popularity of his party’ contained in the editorial in the Globe and Mail on December 22, 1976, is a gross libel on Mr. Speaker, and that the publication of the article is a gross breach of the privileges of this House.” See Debates, December 22, 1976, p. 2241.
[182] 
On March 16, 1993, Gilles Bernier (Beauce) rose on 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 Charles DeBlois (Beauport–Montmorency–Orléans), Assistant Deputy Chairman of Committees of the Whole. The Speaker ruled that the matter was a prima facie case of privilege; Mr. Bernier then moved a motion to refer the matter to the Standing Committee on House Management and the motion was adopted. On March 25, 1993, Mr. Tremblay rose in the House and withdrew the offending comments. No further action was taken and the Committee did not report on the matter. See Debates, March 16, 1993, p. 17027; March 23, 1993, pp. 17403-5; March 25, 1993, p. 17537; Journals, March 23, 1993, p. 2688.
[183] 
Mr. MacKay moved a motion that the matter be referred to the Standing Committee on Procedure and House Affairs. Debate on the motion ensued, continuing the next day, and the motion was adopted with an amendment on a recorded division. See Debates, March 9, 1998, pp. 4560-75; March 10, 1998, pp. 4592-8, 4666-8; Journals, March 9, 1998, p. 540; March 10, 1998, pp. 548, 550-2. On April 27, 1998, the Committee presented its Twenty-Ninth Report, which was concurred in by the House on May 5, 1998 (Journals, April 27, 1998, p. 706; April 29, 1998, p. 722; May 5, 1998, pp. 744-5). In 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” (Standing Committee on Procedure and House Affairs, Twenty-Ninth Report, April 27, 1998, p. 5).
[184] 
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 moreover, he had been deliberately misled by officials and personally supplied with false documents. 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. See also Debates, July 3, 1980, pp. 2540-6; July 14, 1980, pp. 2855-7.
[185] 
Debates, November 17, 1987, p. 10888. 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 of Joyceville Penitentiary who was also a constituent. Mr. Nunziata alleged that “As a result of this conversation the inmate was transferred to the maximum security penitentiary at Millhaven and put in segregation”. 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. On November 17, 1987, in his ruling, the Speaker noted that the House cannot create new privileges. Quoting a 1971 Speaker Lamoureux ruling, the Speaker reiterated that the House should not construe circumstances in such a way as to add to the privileges which have been recognized over the years. 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, even with the direct involvement of the Member, he could not find that a prima facie case of privilege existed. With regards 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. See Debates, October 26, 1987, pp. 10385-7; October 27, 1987, pp. 10447-9; November 17, 1987, pp. 10887-9.
[186] 
Debates, May 15, 1978, p. 5411. On May 2, 1978, Ron Huntington (Capilano) raised a question of privilege. He explained that the Canadian Union of Postal Workers (CUPW) (Vancouver) had brought a civil suit against him because of remarks he had made on a radio talk show in which he repeated sentiments originally expressed in a committee of the House. Mr. Huntington complained that he was the victim of harassment and attempted intimidation and that the actions of the union were calculated to obstruct him in the performance of his parliamentary duties. Mr. Huntington based his question of privilege upon two points: a Member’s right to protection from obstruction and the concept of a parliamentary proceeding. Mr. Huntington claimed that his remarks, since they had been made originally in committee, fell within the ambit of a parliamentary proceeding. In his ruling, the Speaker pointed out that while there may be circumstances in which a matter arising outside Parliament can properly be considered as an extension of a proceeding in Parliament, and therefore be covered by privilege, a radio talk show would not be one. See Debates, May 2, 1978, pp. 5069-73; May 15, 1978, p. 5411.
[187] 
Debates, November 2, 1978, p. 730. On October 31, 1978, Simma Holt (Vancouver–Kingsway) had risen on a question of privilege claiming that she had been verbally insulted and had had a protest button pulled from her hand by a commissioner at a Canadian Radio-television and Telecommunications Commission hearing in British Columbia. The Member had been attending the CRTC hearing to intervene on behalf of constituents over cable television service in Vancouver. The actions taken against her, she argued, interfered with her right as a Member of Parliament to appear and discharge her responsibilities to her constituents before a federal commission. She claimed that the actions of the commissioner against her constituted a breach of privilege and a contempt of Parliament. See Debates, October 31, 1978, pp. 645-50; November 2, 1978, pp. 729-31.
[188] 
Maingot, 2nd ed., p. 256; see also pp. 165-6. Maingot cites the case of the physical assault on J.B.E. Dorion (Drummond and Arthabaska) by Elzéar Gérin Lajoie, editor of the newspaper, Le Canada, which took place in the Library of the Legislative Assembly of the Province of Canada while the Assembly was sitting on July 31, 1866. An argument had taken place over an article about Mr. Lajoie published in the newspaper, Le Défricheur, owned by Mr. Dorion. Ultimately, blows were exchanged. After the matter was raised in the House, the House adopted an order that the Speaker issue a warrant to the Sergeant-at-Arms to take Mr. Lajoie into custody and bring him to the Bar of the House forthwith (Journals, July 31, 1866, p. 257). On August 1, 1866, Mr. Lajoie appeared at the Bar and explained his actions. The House then resolved that Mr. Lajoie was guilty of a breach of the privileges of the House and ordered that he be reprimanded at the Bar by the Speaker and committed to the custody of the Sergeant-at-Arms during the pleasure of the House. Mr. Lajoie was then reprimanded by the Speaker as follows:
Mr. Gérin Lajoie — It is a power incidental to the constitution of this House to preserve peace and order within its precincts, and protect the Members of it from insults and assault. This power is necessary, not only to insure the freedom of action of Members, but that freedom of discussion which is one of their fundamental rights.
You, Elzéar Gérin Lajoie, pretending a cause of complaint against a Member of this House, sought him out, and came within the precincts of this Building, and within a part thereof to which you are entitled to resort — not by right, but by favour only — grossly insulted that Honorable Member, and concluded by violently assaulting him. For these gross breaches of privilege you have not even thought it judicious or becoming to offer any apology; you have mistaken your rights and position in reference to Honorable Members and in this Building. The place in which this insult was offered and assault committed greatly aggravates the criminality of your conduct.
Having been found guilty of a breach of the privileges of this House, in having assaulted Jean Baptiste Eric Dorion, Esquire, a Member thereof, you have rendered yourself liable to such punishment as this House might award; and this House having ordered that you be reprimanded, you are reprimanded accordingly.
The Order of the House directs that you be committed to the custody of the Sergeant-at-Arms, during the pleasure of this House (Journals, August 1, 1866, pp. 263-6).
[189] 
Debates, May 15, 1985, pp. 4768-9.
[190] 
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 of Parliament and the Assistant Deputy Registrar General with the intention of interfering with the exercise of their duties and attempting to intimidate them. This focussed on Members’ inquiries of the Assistant Deputy Registrar General about compliance with conflict of interest guidelines. In his ruling, the Speaker felt that the fact that the Deputy Prime Minister had inquired whether Members of Parliament had been in communication with the Assistant Deputy General did not seem to constitute an interception of those communications. See Debates, April 29, 1986, p. 12756; April 30, 1986, p. 12791; May 1, 1986, p. 12847.
[191] 
Debates, November 6, 1986, p. 1147; December 9, 1986, p. 1903.
[192] 
Debates, March 24, 1994, p. 2706. Jag Bhaduria (Markham–Whitchurch–Stouffville) had raised the matter on February 15, 1994, claiming that media accounts of a dispute he had had with the Toronto Board of Education over his academic credentials while in their employ impeded his ability to function effectively and efficiently as a Member of Parliament. He also stated that he had been threatened by an anonymous caller. See Debates, February 15, 1994, pp. 1387-8; February 16, 1994, p. 1431; February 17, 1994, pp. 1507-8; February 23, 1994, p. 1728; March 23, 1994, p. 2677; March 24, 1994, pp. 2705-6.
[193] 
Debates, May 6, 1996, p. 2367. On April 24, 1996, John Williams (St. Albert) rose on a question of privilege to argue that statements by an official in the Government House Leader’s office quoted in the media to the effect that the Member’s questions were outrageous and that the Government was not going to divert personnel to answer the questions were a contempt of the House. On May 6, 1996, stressing the importance of written questions as a tool for Members which help to hold the government accountable for its actions, the Speaker ruled that there was no question of privilege since the Deputy House Leader had indicated that answers to the questions were being prepared. See Debates, April 24, 1996, pp. 1894-7; May 6, 1996, pp. 2366-7.
[194] 
Maingot, 2nd ed., p. 179. For a full description of the corporate rights, privileges and powers of the House and of the Senate, see Maingot, 2nd ed., pp. 179-215.
[195] 
R.S.C. 1985, c. P-1, ss. 10-13.
[196] 
Maingot, 2nd ed., p. 180.
[197] 
Power is delegated to the Speaker, particularly in relation to discipline within the Chamber, under the provisions of Standing Orders 10, 11 and 16. Power is also delegated to the Sergeant-at-Arms in the case of “strangers” under Standing Orders 157 and 158.
[198] 
Maingot, 2nd ed., pp. 193-5.
[199] 
May, 22nd ed., p. 138, notes that the last time the British House of Commons imposed a fine was in 1666 and its power to do so was denied by Lord Mansfield in R v Pitt in 1762.
[200] 
For further elaboration, see section below entitled “Privilege and the Constitution”. See also Maingot, 2nd ed., pp. 334-41.


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