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

Rights and Immunities of Individual Members

The rights, privileges and immunities of individual Members of the House are finite, that is to say, they can be enumerated but not extended except by statute or, in some cases, by constitutional amendment, and can be examined by the courts. Moreover, privilege does not exist “at large” but applies only in context, which usually means within the confines of the parliamentary precinct and a “proceeding in Parliament”. With the role of the courts to uphold the Canadian Charter of Rights and Freedoms as well as the Canadian Bill of Rights, Members must avoid creating unnecessary conflicts with private rights and thereby having issues of parliamentary privilege brought before the courts.

Freedom of Speech

By far, the most important right accorded to Members of the House is the exercise of freedom of speech in parliamentary proceedings. It has been described as:

… a fundamental right without which they would be hampered in the performance of their duties. It permits them to speak in the House without inhibition, to refer to any matter or express any opinion as they see fit, to say what they feel needs to be said in the furtherance of the national interest and the aspirations of their constituents. [108] 

Much has been written about this over the centuries — in Great Britain, Canada and throughout the Commonwealth. [109] 

In Odgers’ Australian Senate Practice, this privilege is expressed in broader terms as immunity of proceedings from impeachment and question in the courts. [110]  It is also stated that this is the only immunity of substance possessed by the Houses of Parliament and their Members and committees. [111]  There are two aspects to the immunity. “First, there is the immunity from civil or criminal action and examination in legal proceedings of members of the Houses and of witnesses and others taking part in proceedings in Parliament… . Secondly, there is the immunity of parliamentary proceedings as such from impeachment or question in the courts.” [112] 

The statutory existence of parliamentary privilege in relation to freedom of speech dates from the adoption of the English Bill of Rights in 1689. Though meant to counter the challenge of the Crown, it also prohibited actions of any kind by any person outside the House against Members for what they might say or do in Parliament. Section 9 of that statute declares, “That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”. [113] 

Proceedings in Parliament

No definition of “proceedings in Parliament” is contained in the English Bill of Rights and, as is noted in May, although the courts both in the United Kingdom and elsewhere have commented on the term, no comprehensive lines of decision have emerged and an exhaustive definition has not been achieved. [114]  Maingot has also devoted considerable attention to the term. [115]  In a supplementary memorandum to the 1967 United Kingdom Select Committee on Parliamentary Privilege, the Clerk of the British House of Commons wrote of the term:

The primary meaning, as a technical parliamentary term of “proceedings” (which obtained at least as early as the seventeenth century) is some formal action, usually a decision, taken by the House in its collective capacity. This is naturally extended both to the forms of business on which the House takes action and to the whole process, the principal part of which is debate, by which the House reaches a decision.
An individual Member takes part in proceedings usually by speech, but also by various recognised kinds of formal action, such as voting, giving notice of a motion, etc., or presenting a petition or a report from a Committee, most of such actions being time-saving substitutes for speaking. Officers of the House take part in its proceedings principally by carrying out its orders, general or particular. Strangers can also take part in the proceedings of the House, e.g., by giving evidence before one of its committees, or by presenting petitions for or against private bills.
While taking part in the proceedings of the House, Members, officers and strangers are protected by the same sanction as that by which freedom of speech is protected, namely, that they cannot be called to account for their actions by any authority other than the House itself.
By the insertion of the term “proceedings” in the Bill of Rights, Parliament gave statutory authority to what was implied in previous declarations of the privilege of freedom of speech by the Commons, e.g. in the Protestation of 1621, where it is claimed:
that in the handling and proceeding of those businesses every member of the House of Parliament hath and of right ought to have freedom of speech to propound, treat, reason and bring to conclusion the same… and that every member of the said House hath 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 (1 Rushworth, 53).
A general idea of what the term covers is given in the Report of the Select Committee on the Official Secrets Acts in Session 1938-39.
It covers both the asking of a question and the giving written notice of such question, and includes everything said or done by a Member in the exercise of his functions as a member in a committee of either House, as well as everything said or done in either House in the transaction of Parliamentary business. [116] 

In Australia, the Commonwealth Parliament has enacted the Parliamentary Privileges Act 1987 which defines “proceedings in Parliament” as follows:

… all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee, and, without limiting the generality of the foregoing, includes
(a)
the giving of evidence before a House or a committee, and evidence so given;
(b)
the presentation or submission of a document to a House or a committee;
(c)
the preparation of a document for purposes of or incidental to the transacting of any such business; and
(d)
the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published. [117] 

There is no statutory definition of “proceedings in Parliament” in Canada. From the numerous court cases where the law of parliamentary privilege has been applied, it is clear that the courts understand the meaning of the term and see it as part of the law of Canada. However, the courts have been reluctant to extend the immunity deriving from the rule of free speech beyond the context of parliamentary proceedings. In other words, despite the fact that the role of a Member of the House of Commons has evolved considerably since the seventeenth century when the rule was formulated in the Bill of Rights, the courts have, with few exceptions, confined the scope of this immunity to the traditional role of Members as debaters and legislators in Parliament. [118] 

Importance of Freedom of Speech

Freedom of speech permits Members to speak freely in the Chamber during a sitting or in committees during meetings while enjoying complete immunity from prosecution for any comment they might make. [119]  This freedom is essential for the effective working of the House. Under it, Members are able to make statements or allegations about outside bodies or persons, which they may hesitate to make without the protection of privilege. Though this is often criticized, the freedom to make allegations which the Member genuinely believes at the time to be true, or at least worthy of investigation, is fundamental. As in courts of justice, the House of Commons could not work effectively unless its Members were able to speak and criticize without having to account to any outside body. There would be no freedom of speech if everything had to be proven true before it were uttered. Speaker Bosley was required to rule on such a situation in 1984, following a question of privilege. [120]  While finding that there was no prima facie question of privilege, the Speaker affirmed that “the privilege of a Member of Parliament when speaking in the House or in a committee is absolute, and that it would be very difficult to find that any statement made under the cloak of parliamentary privilege constituted a violation of that privilege.” [121]  Paraphrasing Speaker Michener, he went on to note that, unless such conduct has led to the obstruction of other Members or of the House, “the conduct of a Member of Parliament even though reprehensible, cannot form the basis of a question of privilege although it can form the basis of a charge by way of a substantive motion… .” [122]  It should be borne in mind that this right is also extended to individuals summoned to appear before the House or its committees. [123] 

Limitations on Freedom of Speech

Remarks Made Outside of Debate

The privilege of freedom of speech is not limitless and grey areas remain. Members may be confident of the protection given to their speeches in the House and other formal proceedings, but can never be certain how far their freedom of speech and parliamentary action extends. [124]  The parliamentary privilege of freedom of speech applies to a Member’s speech in the House and other proceedings of the House itself, but may not apply to reports of proceedings or debates published by newspapers or others outside Parliament. Parliamentary privilege may not protect a Member publishing his or her own speech separate from the official record. [125] 

Members are therefore cautioned that utterances which are absolutely privileged when made within a parliamentary proceeding may not be when repeated in another context, such as in a press release, a householder mailing, a telegram, on an Internet site, a television or radio interview, at a public meeting or in the constituency office. Members also act at their peril when they transmit otherwise libellous material for purposes unconnected with a parliamentary proceeding. Thus, comments made by a Member at a function as an elected representative — but outside the forum of Parliament— would not be covered by this special privilege, even if the Member were quoting from his or her own speech in the Debates of the House of Commons. [126]  Telecommunications, including new technology such as electronic mail, facsimile machines and the Internet, should therefore not be used to transmit otherwise libellous material.

The publication of libellous material has been considered by most courts to be beyond the privileges of Parliament when such publication was not part of the parliamentary process to begin with. [127]  Courts take a distinctly “functional” approach to the interpretation of parliamentary privilege by relating any novel situation in which a Member may become involved back to the function and purpose that parliamentary privilege was originally intended to serve: the need for Members of Parliament to be able to fearlessly debate issues of public policy in Parliament. Thus even correspondence between one Member and another on a matter of public policy may not be considered to be privileged. [128] 

Misuse of Freedom of Speech

The privilege of freedom of speech is an extremely powerful immunity and Speakers have on occasion had to caution Members about its misuse. In a ruling following a question of privilege, [129]  Speaker Fraser urged Members to take the greatest care in framing questions concerning conflict of interest guidelines. Since the question raised affected the very nature of Members’ rights and immunities, he spoke at length about the importance of freedom of speech and the need for care in what Members said:

There are only two kinds of institutions in this land to which this awesome and far-reaching privilege [of freedom of speech] extends — Parliament and the legislatures on the one hand and the courts on the other. These institutions enjoy the protection of absolute privilege because of the overriding need to ensure that the truth can be told, that any questions can be asked, and that debate can be free and uninhibited. Absolute privilege ensures that those performing their legitimate functions in these vital institutions of Government shall not be exposed to the possibility of legal action. This is necessary in the national interest and has been considered necessary under our democratic system for hundreds of years. It allows our judicial system and our parliamentary system to operate free of any hindrance.
Such a privilege confers grave responsibilities on those who are protected by it. By that I mean specifically the Hon. Members of this place. The consequences of its abuse can be terrible. Innocent people could be slandered with no redress available to them. Reputations could be destroyed on the basis of false rumour. All Hon. Members are conscious of the care they must exercise in availing themselves of their absolute privilege of freedom of speech. That is why there are long-standing practices and traditions observed in this House to counter the potential for abuse. [130] 

In a ruling following a point of order, Speaker Parent also emphasized the need for Members to use great care in exercising their right to speak freely in the House: “ … paramount to our political and parliamentary systems is the principle of freedom of speech, a member’s right to stand in this House unhindered to speak his or her mind. However when debate in the House centres on sensitive issues, as it often does, I would expect that members would always bear in mind the possible effects of their statements and hence be prudent in their tone and choice of words”. [131] 

Speakers have also stated that although there is a need for Members to express their opinions openly in a direct fashion, it is also important that citizens’ reputations are not unfairly attacked. In a ruling on a question of privilege, [132]  Speaker Fraser expressed his concern that an individual who was not a Member of the House had been referred to by name and noted that this concern had also been shared by some Members who had participated in the discussion of the question of privilege. He then went on to say: “But we are living in a day when anything said in this place is said right across the country and that is why I have said before and why I say again that care ought to be exercised, keeping in mind that the great privilege we do have ought not to be abused.”

In a later ruling following a point of order, [133]  Speaker Fraser observed that the use of suggestive language or innuendo with regard to individuals or an individual’s associations with others can provoke an angry response which inevitably leads the House into disorder. The Speaker stated that he was heartened by Members’ comments and a general sense of the necessity to maintain decorum, for the sake of the House and the viewing public. Specifically referring to individuals outside the Chamber, he agreed with a suggestion that the House consider constraining itself “ … in making comments about someone outside this Chamber which would in fact be defamatory under the laws of our country if made outside the Chamber… .” [134] 

Sub judice Convention

There are other limitations to the privilege of freedom of speech, most notably the sub judice convention. [135] It is accepted practice that, in the interests of justice and fair play, certain restrictions should be placed on the freedom of Members of Parliament to make reference in the course of debate to matters awaiting judicial decisions and that such matters should not be the subject of motions or questions in the House. Though loosely defined, the interpretation of this convention is left to the Speaker. The word “convention” is used as no “rule” exists to prevent Parliament from discussing a matter which is sub judice (“under the consideration of a judge or court of record”). The acceptance of a restriction is a voluntary restraint on the part of the House to protect an accused person or other party to a court action or judicial inquiry from suffering any prejudicial effect from public discussion of the issue. [136]  While certain precedents exist for the guidance of the Chair, no attempt has ever been made to codify the practice in Canada. [137] 

The sub judice convention is important in the conduct of business in the House. It protects the rights of interested parties before the courts, and preserves and maintains the separation and mutual respect between the legislature and the judiciary. The convention ensures that a balance is created between the need for a separate, impartial judiciary and free speech.

The practice has evolved so that it is the Speaker who decides what jurisdiction the Chair has over matters sub judice. In 1977, the First Report of the Special Committee on the Rights and Immunities of Members [138]  recommended that the imposition of the convention should be done with discretion and, when there was any doubt in the mind of the Chair, a presumption should exist in favour of allowing debate and against the application of the convention. Since the presentation of the report, Speakers have followed these guidelines while using discretion.

Authority of the Speaker

A further limitation on the freedom of speech of Members is provided by the authority of the Speaker under the Standing Orders to preserve order and decorum, and when necessary to order a Member to resume his or her seat if engaged in irrelevance or repetition in debate, or to name a Member for disregarding the authority of the Chair and order him or her to withdraw. [139] 

Freedom from Arrest in Civil Actions

Freedom from arrest in civil actions [140]  is the oldest privilege of the House of Commons, pre-dating freedom of speech in the United Kingdom. [141]  The immunity exists because the House has the pre-eminent claim to the attendance and service of its Members, free from restraint or intimidation particularly by means of legal arrest in civil process. It has only applied to arrest and imprisonment under civil process and does not interfere with the administration of criminal justice. It is not claimable for any incident having a criminal character or a criminal nature, for treason, felony, [142]  breach of the peace, matters including criminal offences under federal statutes, breaches of provincial statutes (considered quasi-criminal) which involve the summary jurisdiction of the Criminal Code[143]  or any indictable offence. [144] 

It goes without saying that if Members are charged with infractions of the law, then they must abide by the due process of law just like any other citizen. To do otherwise would be contemptful of the justice system. While a Member is protected from arrest for civil contempt of court, there is no protection from arrest for criminal contempt of court. [145]  If a Member is arrested on a criminal charge or is committed for a contempt of court, the House should be notified by the authorities if it is in session. If a Member is committed for high treason or any criminal offence, the House is informed by way of a letter addressed to the Speaker by the judge or magistrate. [146] 

Whatever privilege of freedom from arrest a Member may claim, it exists from the moment of the execution of the return of the writ of election by the returning officer. It continues while the House is sitting and also applies 40 days before and after a session of Parliament and 40 days after a dissolution of Parliament. [147] 

Exemption from Jury Duty

Since the House of Commons has first claim on the attendance and service of its Members, and since the courts have a large body of individuals to call upon to serve on juries, it is not essential that Members of Parliament be obliged to serve as jurors. This was the tradition in the United Kingdom long before Confederation and this has been the Canadian practice since 1867. [148]  The duty of Members to attend to their functions as elected representatives is in the best interests of the nation and is considered to supersede any obligation to serve as jurors. It has also been recognized in law. [149] 

One of the rights of the House is to provide for the protection of its officers so that they may assist in its deliberations. Therefore, officers of the House are exempt from jury duty under the same circumstances as Members, as are individuals summoned to appear before the House or its committees. [150] 

Exemption from Appearing as a Witness

The right of the House to the attendance and service of its Members exempts a Member, when the House is in session, [151]  from the normal obligation of a citizen to comply with a subpoena to attend a court as a witness. [152]  This exemption applies in civil, criminal and military matters before the courts. [153]  However, this claim is not intended to be used to impede the course of justice and, therefore, is regularly waived, particularly for criminal cases. [154]  When the House is in session, should a subpoena be served on a Member, the Member may wish to appear in court where he or she feels that absence from court might affect the course of justice. However, the Member still has a right to claim the privilege of exemption from appearing as a witness. [155]  A Member may give evidence voluntarily without any formality, even on a day when the House is sitting or scheduled to meet, [156]  but if he or she does so, no claim of privilege may be made and the Member is required to give evidence. [157] 

If a subpoena is to be served in a Member’s parliamentary office, the permission of the Speaker must be sought in advance. This was most forcefully stated by Speaker Fraser in a ruling given in May 1989, following a question of privilege raised by David Kilgour (Edmonton–Strathcona) involving the rights of Members appearing as witnesses in court. [158]  In his submission, Mr. Kilgour stated that in March 1989, while Parliament was prorogued, a subpoena authorized by a British Columbia Supreme Court Justice was served on him in his Centre Block office in connection with a defamation action then under way. Much correspondence followed, including a letter from the Law Clerk and Parliamentary Counsel of the House of Commons in which the Member’s right to be exempt from attending as a witness in a court of law was affirmed. Subsequent to a letter from one of the counsel indicating that Mr. Kilgour was ordered by the Judge to appear, the Member complied and attended in the Kelowna Court. Mr. Kilgour refused to give evidence upon being questioned, and just prior to his being cited for contempt, the counsel for the plaintiff withdrew the subpoena. [159] 

In his ruling, Speaker Fraser spoke first about the manner in which the subpoena had been served on the Member and noted that since the permission of the Speaker had not been sought nor obtained for this service, it had been improperly carried out. The Speaker cautioned Members not to accept service of their own accord within the parliamentary precinct. If they wished to waive their parliamentary immunity, they could do so by leaving the precinct and accepting the service elsewhere. He noted that to do otherwise was “to put at risk our ancient privileges… [which] are part of the law of Canada”. Furthermore, he cautioned “ … those who attempt to further improper service of subpoenae, that they may be acting in a manner that is in contempt of the House”. [160]  With regard to the privilege of exemption from attending as a witness in a court of law, the Speaker pointed out that although Parliament was prorogued, according to May and Bourinot, the Member’s immunity persisted throughout this period. However, since Mr. Kilgour had accepted to attend in the court, he had essentially waived that privilege. The Speaker noted: “By waiving his privilege, being sworn and answering some questions, he appears to have voluntarily submitted to the jurisdiction of the court. Once this privilege is waived, the Member surrenders the protection implicit in it.” The Speaker had been very disturbed by the fact that the counsel for the plaintiff in this case had questioned Mr. Kilgour’s right “to claim his parliamentary immunity, alleging that this was a matter for the court to decide”. He then stated “ … 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”. He urged Members “ … to refuse to accept any writ of summons within the precincts and to report to the Speaker should such an attempt be made”.

Just as in the case of jury service, House officials or individuals summoned to appear before the House or its committees are also exempt from appearing as witnesses if their services are needed by the House. [161] 

Freedom from Obstruction, Interference, Intimidation and Molestation

Members are entitled to go about their parliamentary business undisturbed. The assaulting, menacing, or insulting of any Member on the floor of the House or while he is coming or going to or from the House, or on account of his behaviour during a proceeding in Parliament, is a violation of the rights of Parliament. Any form of intimidation (it is a crime to commit “an act of violence in order to intimidate the Parliament of Canada”) of a person for or on account of his behaviour during a proceeding in Parliament could amount to contempt. [162] 

Members of Parliament, by the nature of their office and the variety of work they are called upon to perform, come into contact with a wide range of individuals and groups. Members can, therefore, be subject to all manner of influences, some legitimate and some not. Certain matters, most notably bribery, the acceptance of fees and corrupt electoral practices are dealt with in law. [163]  Over the years, Members have brought to the attention of the House instances which they believed were attempts to obstruct, impede, interfere, intimidate or molest them, their staffs or individuals who had some business with them or the House. In a technical sense, such actions are considered to be contempts of the House and not breaches of privilege. [164]  Since these matters relate so closely to the right of the House to the services of its Members, they are often considered to be breaches of privilege.

Speakers have consistently upheld the right of the House to the services of its Members free from intimidation, obstruction and interference. Following a question of privilege, Speaker Lamoureux ruled that, while in the particular case before him there was no prima facie question of privilege, he had “ … no hesitation in reaffirming the principle that parliamentary privilege includes the right of a member to discharge his responsibilities as a member of the House free from threats or attempts at intimidation”. [165]  In ruling on another question of privilege, Speaker Bosley stated further that the threat or attempt at intimidation cannot be hypothetical, but must be real or have occurred. [166] 

Physical Obstruction, Assault and Molestation

In circumstances where Members claim to be directly obstructed, impeded, interfered with or intimidated in the performance of their parliamentary duties, the Speaker is apt to find that a prima facie breach of privilege has occurred. This may be physical obstruction, assault or molestation.

On October 30, 1989, Speaker Fraser ruled that a prima facie case of privilege existed when Herb Gray (Windsor West) raised a question of privilege, claiming that a RCMP roadblock on Parliament Hill, meant to contain demonstrators, constituted a breach of Members’ privileges by denying them access to the House of Commons. [167] 

On February 17, 1999, a number of questions of privilege were raised resulting from picket lines set up by members of the Public Service Alliance of Canada at strategic locations of entry to Parliament Hill and at entrances to specific buildings used by parliamentarians. Jim Pankiw (Saskatoon–Humboldt) in his submission stated that the strikers had used physical violence and intimidation to stop him from gaining access to his office. On this matter, Speaker Parent ruled immediately that there was a prima facie case of privilege. Mr. Pankiw moved that the matter of his molestation be referred to the Standing Committee on Procedure and House Affairs and it was agreed to without debate. [168]  Other questions of privilege, raised by John Reynolds (West Vancouver–Sunshine Coast), Roy Bailey (Souris–Moose Mountain) and Garry Breitkreuz (Yorkton–Melville), focussed on the difficulties Members had had in gaining access to their offices. The picket lines, it was claimed, impeded Members from performing their duties and meeting their obligations as Members of Parliament in a timely fashion. The next day, noting that the Speaker is the guardian of the rights of Members, Speaker Parent stated in his ruling that he had been persuaded by the interventions made by the three Members who had raised the matter and had decided that their concerns were sufficiently serious for the Chair to act. Therefore, he found that the incident of the previous day of impeding access to the parliamentary precinct constituted a prima facie case of contempt of the House and invited Mr. Reynolds to move the appropriate motion. The Member moved that the matter be referred to the Standing Committee on Procedure and House Affairs, and the motion was adopted without debate. [169] 

Other Examples of Obstruction, Interference and Intimidation

The unjust damaging of a Member’s good name might also be seen as constituting an obstruction. In ruling on a question of privilege, [170]  Speaker Fraser stated: “The privileges of a Member are violated by any action which might impede him or her in the fulfilment of his or her duties and functions. It is obvious that the unjust damaging of a reputation could constitute such an impediment. The normal course of a Member who felt himself or herself to be defamed would be the same as that available to any other citizen, recourse to the courts under the laws of defamation with the possibility of damages to substitute for the harm that might be done. However, should the alleged defamation take place on the floor of the House, this recourse is not available.” [171] 

In finding a prima facie case of privilege on March 21, 1978, Speaker Jerome ruled that the electronic surveillance of a Member beyond the parliamentary precinct “ … could be regarded as a form of harassment or obstruction or molestation or intimidation of a Member, all of which phrases have been used in our precedents to support the position that such conduct is a contempt of the House.” [172]

On May 6, 1985, Speaker Bosley ruled that there was a prima facie question of privilege in a case where a newspaper advertisement identified another person as a Member of Parliament rather than the sitting Member. [173]  He stated: “It should go without saying that a Member of Parliament needs to perform his functions effectively and that anything tending to cause confusion as to a Member’s identity creates the possibility of an impediment to the fulfilment of that Member’s functions. Any action which impedes or tends to impede a Member in the discharge of his duties is a breach of privilege. There are ample citations and precedents to bear this out.” [174] 

On December 6, 1978, in finding that a prima facie contempt of the House existed, Speaker Jerome ruled that a government official, by deliberately misleading a Minister, had impeded a Member in the performance of his duties and consequently obstructed the House itself. [175] 

In another example involving a government official, Speaker Francis found a prima facie case of privilege involving the intimidation of an employee of a Member. In a ruling given on February 20, 1984, the Speaker stated: “A threat emanating from any government department or public corporation to withhold information or co-operation from a Member of Parliament would undoubtedly hinder that Member in the fulfilment of his or her parliamentary duties and therefore constitute a breach of privilege. By the same token, an offer of favourable treatment on condition that questions are first cleared with the office concerned would also violate privilege in an equally fundamental way… . It is therefore the view of the Chair that an action which amounts to a form of intimidation does not need to be directed at the Member in person in order to constitute an offence in terms of privilege.” [176] 

Just as prima facie cases of privilege have been found for the intimidation of Members and their staff, the intimidation of a committee witness was also found to be prima facie contempt by Speaker Fraser on December 4, 1992. The matter was referred by the House to the Standing Committee on House Management for consideration. [177]  The Committee presented its Sixty-Fifth Report to the House on February 18, 1993, and the Report was concurred in by the House on February 25. [178]  In its report, the Committee reaffirmed the principles of parliamentary privilege and the extension of privilege to witnesses. The report stated: “The protection of witnesses is a fundamental aspect of the privilege that extends to parliamentary proceedings and those persons who participate in them. It is well established in the Parliament of Canada, as in the British Parliament, that witnesses before committees share the same privileges of freedom of speech as do Members. Witnesses before parliamentary committees are therefore automatically extended the same immunities from civil or criminal proceedings as Members for anything that they say before a committee… . The protection of witnesses extends to threats made against them or intimidation with respect to their presentations before any parliamentary committee.” [179] 

Intimidation of the Speaker and Other Chair Occupants

As with the intimidation of a Member or witness, the intimidation or attempted intimidation of the Speaker or any other Chair occupant is viewed very seriously by the House. On three occasions, the House has viewed criticisms of the impartiality of the Chair as attempts at intimidation and, therefore, as privilege matters. [180] On December 22, 1976, the House adopted a motion finding that a statement made in a newspaper article about Speaker Jerome was a gross libel on the Speaker and that the publication of the article was a gross breach of the privileges of the House. [181]  On March 23, 1993, Speaker Fraser ruled that a question of privilege regarding comments on the impartiality of a Chair occupant by a Member of the House was a prima facie case of privilege, noting that an attack against the integrity of an officer of the House was also an attack against the House. [182]  On March 9, 1998, Peter MacKay (Pictou–Antigonish–Guysborough) rose on a question of privilege to claim that quotations attributed to certain Members of the House in a newspaper article constituted an attempt to intimidate the Speaker and, collectively, the House. The Member was concerned that comments, attributed by the media to Members about matters which were before the Chair for adjudication and suggesting that if the Speaker ruled a particular way he should be removed, were attempting to influence the ruling of the Chair. Speaker Parent ruled that there was a prima facie case of privilege. [183] 

Constituency or Politically Related Instances

In instances where Members have claimed that they have been obstructed or harassed, not directly in their roles as elected representatives but while being involved in matters of a political or constituency-related nature, Speakers have consistently ruled that this does not constitute privilege.

On July 15, 1980, in finding that there was no prima facie case of privilege in relation to a Member’s constituency work, Speaker Sauvé stated: “While I am only too aware of the multiple responsibilities, duties, and also the work the member has to do relating to his constituency, as Speaker I am required to consider only those matters which affect the member’s parliamentary work. That is to say, whatever duty a member has to his constituents, before a valid question of privilege arises in respect of any alleged interference, such interference must relate to the member’s parliamentary duties. In other words, just as a member is protected from anything he does while taking part in a proceeding in Parliament, so too must an interference relate to the member’s role in the context of parliamentary work.” [184] 

This view was further reinforced in a ruling given on November 17, 1987, by Speaker Fraser, following a question of privilege on a matter involving the staff of a Member, a constituent, and an officer of the Correctional Services. The Speaker ruled that there was no prima facie case of privilege explaining “ … I am sure Hon. Members will appreciate that this matter does not fall within the restricted scope of the concept of parliamentary privilege… . Indeed, I can go further and state that even without the direct involvement of the staff person and with the direct involvement of the Member himself, I could not find that a prima facie case of privilege exists.” [185] 

Importance of Relationship to Parliamentary Duties

In some cases where prima facie privilege has not been found, the rulings have focussed on whether or not the parliamentary duties of the Member were directly involved. While frequently noting that Members raising such matters might have legitimate complaints, Speakers have regularly concluded that Members have not been prevented from performing their parliamentary duties. The following cases illustrate this.

In two 1978 cases, the Speaker ruled that since the Members’ parliamentary duties had not been directly infringed upon, no prima facie breach of privilege existed. In the first case, involving Ron Huntington (Capilano), the Speaker had difficulty in accepting that the Member’s complaint concerning a civil suit brought against him constituted harassment or obstruction in the narrow sense and further expressed concern about extending the definition of privilege. In ruling that he could find no prima facie case of privilege, Speaker Jerome noted: “It seems quite clear that this matter has caused the member certain difficulties in the performance of his duties as a member of parliament, but I have trouble in accepting the argument that these difficulties constitute obstruction or harassment in the narrow sense in which one must construe the privilege of freedom from molestation, particularly in the face of what must be construed as being ordinary access to the courts of the land, which surely ought to be something parliament would interfere with only upon the most grave and serious grounds.” [186] 

The second 1978 case was raised by Simma Holt (Vancouver–Kingsway) on November 2, 1978. In ruling that there was no prima facie question of privilege, Speaker Jerome stated: “Since the member was not in the circumstances acting in the official capacities which are surrounded by privilege — that very narrow category — it would, I think, be unwarranted extension of the precedents to extend privilege with respect to an act which was directed to her person in the circumstances”. [187]  In ruling, the Speaker noted that society demands much of Members but not all demands strictly impose a parliamentary duty. Every Member has duties as a representative of the electorate. A Member may only claim the protection of privilege relating to his or her parliamentary duties, “particularly in his primary duty or service to this House of Commons here”, though the line distinguishing these duties might blur. However, as Maingot has pointed out, while assaults on Members that occur outside the precinct and that are unrelated to the Member’s parliamentary duties do not amount to contempt, the same assault occurring within the precinct, yet unrelated to a proceeding in Parliament, would constitute contempt of the House. [188] 

On May 15, 1985, Douglas Frith (Sudbury) rose on a question of privilege claiming that his ability to serve his constituents was being infringed or impeded by a departmental directive restricting the release of information about a government program. In ruling that, while the Member did have a complaint, there was no prima facie question of privilege, Speaker Bosley noted that the purpose of parliamentary privilege was to protect freedom of speech in the House and to protect the institution from threats, obstructions and intimidations. [189] 

Again on May 1, 1986, Speaker Bosley ruled that there was no prima facie case of privilege on a matter raised by Sheila Copps (Hamilton East). Reiterating the reasons invoked in previous rulings, the Speaker stated: “If an Hon. Member is impeded or obstructed in the performance of his or her parliamentary duties through threats, intimidation, bribery attempts or other improper behaviour, such a case would fall within the limits of parliamentary privilege. Should an Hon. Member be able to say that something has happened which prevented him or her from performing functions, that he or she has been threatened, intimidated, or in any way unduly influenced, there would be a case for the Chair to consider.” [190] 

On December 9, 1986, in ruling on a question of privilege raised by Nelson Riis (Kamloops–Shuswap), claiming that the information provided by the government at a press conference concerning a bill not yet introduced in the House amounted to a breach of privilege, Speaker Fraser stated that in no way had the actions of the Minister impeded or obstructed any Member in the discharge of his or her duties. [191] 

On March 24, 1994, Speaker Parent ruled on a question of privilege raised by Jag Bhaduria (Markham–Whitchurch–Stouffville) who had claimed he was being intimidated by the media and had received blackmail threats as a result of media reports concerning the authenticity of the Member’s academic credentials. In finding that there was no prima facie question of privilege, the Speaker stated: “Threats of blackmail or intimidation of a Member of Parliament should never be taken lightly. When such occurs, the very essence of free speech is undermined. Without the guarantee of freedom of speech, no Member of Parliament can do his duty as is expected… . While the Chair does not in any way make light of the specifics that have been raised… I cannot, however, say that he has sufficiently demonstrated that a case of intimidation exists such that his ability to function as a member of Parliament has been impeded.” [192] 

In another instance involving written questions on the Order Paper, John Williams (St. Albert) claimed that an unnamed official in the office of the Leader of the Government in the House had deliberately tried to interfere with the Member by denying him a response to his questions. Based on quotations by the media, the Member claimed that the official’s “arrogance and insolence… in the face of Parliament” were contemptuous. In a ruling given on May 6, 1996, Speaker Parent noted: “ … it is very difficult to accept the veracity of the remarks allegedly made by an unidentified person in the government House leader’s office. As such, I cannot find that the member has been obstructed in performing his duties and hence there is no question of privilege.” [193] 


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