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

Members’ Privileges and the Criminal Law

Privilege and the Criminal Code

The special privileges of Members never were intended to set them above the law; rather, the intention was to give them certain exemptions from the law in order that they might properly execute the responsibilities of their position. Members of Parliament are subject to the criminal law except in respect of words spoken or acts done in the context of a parliamentary proceeding. However, it would be difficult to envisage a criminal act which would fit into or be a part of a parliamentary proceeding. [279]  Therefore, it goes without saying that if Members are charged with infractions of the criminal law, they must abide by the due process of law. To do otherwise would show contempt for the Canadian system of justice. [280] 

In determining whether there is a prima facie breach of privilege, the Speaker must differentiate between actions which directly affect Members in the performance of their duties, and actions which affect Members but do not directly relate to the performance of their functions. For example, if a Member is summoned to court for a traffic violation or if the income tax return of a Member is under investigation, one might say at first glance that the Member may be hampered in the performance of his or her duties — for the Member may have to defend himself or herself in court instead of attending to House or committee duties. However, in these cases, the action brought against a Member is not initiated as a result of his or her responsibilities as an elected representative, but rather as a result of actions taken by the Member as a private individual. In these situations, the protection afforded by parliamentary privilege does not and should not apply. [281] 

Freedom from arrest has been confined to civil cases and does not entitle a Member to evade criminal law. This is in accordance with the principle laid down by the British House of Commons in a conference with the House of Lords in 1641 where it was stated: “Privilege of Parliament is granted in regard of the service of the Commonwealth and is not to be used to the danger of the Commonwealth.” [282] 

Any incident of a criminal nature in which a Member has been charged is not a matter where immunity from arrest will protect that Member. [283]  Matters of a criminal nature would include treason, felonies, all indictable offences, forcible entries, kidnapping, printing and publishing seditious libel, and criminal contempt of court (though not civil contempt). [284] Members cannot claim freedom from arrest or imprisonment on a criminal charge. A Member of the House of Commons is in exactly the same position as any other citizen if he or she is suspected of, charged with, or found guilty of a crime, provided that it is unrelated to proceedings in Parliament. [285] 

In Canada, the 1965 case of Gilles Gregoire (Lapointe) would suggest that a Member could be arrested within the precinct of Parliament with the permission of the House and that the grounds surrounding the Parliament buildings do not constitute a part of the precinct of Parliament. [286] 

The House of Commons cannot be used to give a Member sanctuary from the application of the law. Even the floor of the Chamber of the House is not a sanctuary and the application of the law, particularly in criminal matters, is foremost. [287]  It is not the precinct of Parliament but the function that the precinct serves which is sacred. [288]  The only special procedure relating to the arrest or the imprisonment of a Member of Parliament is that if he or she is detained for any significant time (for example, if remanded in custody), the police or court concerned must notify the Speaker. Similarly, if a Member is sent to prison after a conviction, the House is informed. [289]  Thus, should the police arrest a Member outside the House on some criminal matter, the House of Commons is not entitled to intervene. In Canada, the administration of justice is a provincial responsibility. The Crown Attorney for the particular judicial district where the offence occurred would therefore prosecute any breach of the Criminal Code[290]  In its 1967 report, the British House of Commons Select Committee on Parliamentary Privilege noted that it could see no reason why, unless the circumstances are exceptional, a Member should be able to claim immunity from the normal process of the courts. [291] 

The Execution of Search Warrants in the Precinct of Parliament

The privileges of the House of Commons include “such rights as are necessary for free action within its jurisdiction and the necessary authority to enforce these rights if challenged”. [292]  It is well established that, by extension, the House has complete and sole authority to regulate and administer its precinct, without outside interference.

As custodian of the rights and privileges of the House of Commons and head of its administrative structure, the Speaker oversees the management of the precinct of the House. The Standing Orders delegate to the Sergeant-at-Arms some duties and responsibilities in this regard, including the maintenance of order in the galleries, corridors, lobbies and other areas of the House, and the arrest and custody of any person who misconducts himself or herself while in the precinct of the House. [293] 

The right of the House to control its precinct extends to considerations of security and policing. The House of Commons maintains its own protective service, the House of Commons Security Service, under the direction of the Sergeant-at-Arms. Beyond the precinct, the RCMP is responsible for security on the grounds of Parliament Hill, [294]  as well as for the security of the Prime Minister and any visiting dignitary up to the entrance of the Parliament Buildings. Inside the buildings, it then becomes the responsibility of the House of Commons Security Service.

Authorization of the Speaker

Cases have arisen where representatives of outside police forces have wanted to enter the precinct of Parliament for purposes of making an arrest, conducting an interrogation or executing a search warrant. The Speaker has the authority, on behalf of the House, to grant or deny outside police forces permission to enter the precinct, and oblige police to seek this permission prior to conducting their business.

This authority was established in two separate incidents which occurred in the 1970s. The first case occurred in 1973 and involved Flora MacDonald (Kingston and the Islands). At that time, her parliamentary office was visited by the Ottawa City Police and the RCMP, who were inquiring about documents missing from the Department of Indian Affairs, without having previously sought permission from the Speaker to do so. Miss MacDonald raised a question of privilege which was found prima facie, and the matter was referred to committee for study. In its report to the House, the committee stated: “It is well-established that outside police forces on official business shall not enter the precincts of Parliament without first obtaining the permission of Mr. Speaker who is custodian of the powers and privileges of Parliament… . The Committee must find that the question of privilege of the House of Commons is well founded.” [295]  The committee stopped short of finding the police force in contempt of the House, on the grounds that they acted in good faith. Rather, they recommended to the Speaker that he “ … remind outside police forces and the security staff of the House of Commons of their respective obligations in this regard, and that no further action be taken… .” [296]  While the report of the committee confirmed the necessity for outside police forces to seek the permission of the Speaker prior to entering the precinct of the House, it was not until six years later, in another Parliament, under another Speaker, that the House was to hear confirmation that the permission police forces were obliged to seek was not in any way a mere formality, but indeed involved a very conscious exercise of discretion on the part of the Speaker.

The second case occurred in 1979 and involved Terry Sergeant (Selkirk–Interlake). The Member raised a question of privilege regarding a RCMP request to the Speaker to conduct a search of the Member’s Parliament Hill offices for copies of a leaked document. Having confirmed that the RCMP had indeed requested permission from the Speaker to search Mr. Sergeant’s office, Speaker Jerome found that there was no prima facie breach of privilege and indicated to the House that he had exercised his discretion against the execution of the warrant: “To my understanding, the reason for the presence of any discretion in the Speaker is because, in this situation, the rights of the police force, which may be legitimate, come into collision with the rights of the member which are obviously equally legitimate… . What I have done, therefore, is to take the position that, where no charge has been laid against a member and there does not appear to be the investigation of an actual offence against him, but rather an investigation which may be part of another set of circumstances, initially I have exercised my discretion against the execution of the warrant in these premises in the office of a member. On the other hand, I would think that in the more extreme cases, where there is an allegation of an offence by a member and it is in the enforcement or investigation of a specific and formal charge against a member, I might be facing a different situation. Obviously that would depend on the nature of the charge and the actual circumstances.” [297] 

In such cases, the Speaker is always in a difficult position: the Speaker must ensure that Members’ parliamentary privileges are protected without leaving the Speaker open to accusations of obstructing justice. However, as Speaker Jerome explained in 1979, if no charge has been laid or there is no evidence of an investigation against a Member, the Chair may exercise its discretion against the execution of a warrant. If there is an allegation of an offence by a Member, and the enforcement of the charge necessitates a warrant, the Speaker may give permission for its execution. [298] 

In making this statement, Speaker Jerome underscored the limits of the Speaker’s authority in matters of privilege. It is not the Speaker, but the House itself, which determines the extent of Members’ privileges and decides when a breach has occurred. It would appear that the role that the Speaker plays in deciding whether a prima facie case of privilege exists constitutes a close parallel to the exercise of discretion in granting police forces entry to the precinct of the House. In both cases, the Speaker must keep in mind that the final authority on such matters rests with the House itself, which by its disposition of the matter will reflect on the Speaker’s preliminary determination.

Investigation of Matters Involving Members’ Budgets and Services

In 1989, a number of search warrants were executed on Parliament Hill involving investigations related to Members’ use of their office budgets and other services available to them. These investigations led to much media speculation and were the cause of great concern to Members. As a result, the House established a special committee to “ …review the Parliament of Canada Act regarding the powers, duty and obligations of the Members of the House in relation thereto and regarding the authority, responsibilities and jurisdiction of the Board of Internal Economy”. [299] 

On May 29, 1990, the House unanimously approved the Special Committee’s Third Report. [300]  This Report dealt exclusively with procedures surrounding the execution of search warrants within the parliamentary precinct. By unanimously adopting the report, the House reaffirmed the following principles respecting the execution of search warrants:

  1. Well-established parliamentary tradition provides that search warrants may only be executed within the precinct of Parliament with the consent of the Speaker.
  2. The Speaker may withhold or postpone giving his or her consent if it is determined that the execution of the search warrant will violate the collective and individual privileges, rights, immunities and powers of the House of Commons and its Members by interfering with the proper functioning of the House of Commons.
  3. A search warrant must be executed in the presence of a representative of the Speaker who ensures that a copy of it is given to any Member whose affairs are subject of the search, at the time of the search or as soon as practicable thereafter. [301] 

On June 1, 1990, the Committee presented its Fourth Report, which the House concurred in on the same day. [302]  The report contained proposed amendments to the Parliament of Canada Act, primarily dealing with the Board of Internal Economy. It also proposed to prohibit any criminal process respecting the way Members used House of Commons money, goods or services unless the authorities had previously requested and obtained from the Board a ruling or opinion on the propriety of the Member’s action. [303]  In particular, the Special Committee wanted to ensure that Members would not be exposed to charges or proceedings based on a misunderstanding of the nature of their work or the structure and rules of the House of Commons.

On June 26, 1990, Bill C-79, An Act to amend the Parliament of Canada Act, was introduced, [304]  which closely followed the draft provisions of the Fourth Report. Bill C-79 was designed to give the Board of Internal Economy exclusive authority to determine whether any past, present or proposed use of funds, goods, services or premises available to Members had been, was or would be improper. The Bill received Royal Assent on April 11, 1991. [305] 

The Parliament of Canada Act empowers the Board to make by-laws governing the use by Members of funds, goods, services and premises made available to them to carry out their parliamentary functions. [306]  The Board determines the terms and conditions of managing and accounting for such funds by the Members and has exclusive authority to determine whether such use is or was proper. [307]  Members may request from the Board an opinion with respect to such use. [308] 

In investigating the use by a Member of these funds, goods, services or premises, a law enforcement authority may request the Board’s opinion whether such use is or was proper. [309]  The Board can respond by interpreting an existing by-law or regulation, or if none exists by examining the issue. Similarly, the Board may provide the peace officer with an opinion on its own initiative. [310]  The Board has explicit authority to include in its opinions any comments that it considers relevant. [311]  A peace officer who receives an opinion and then makes an application for a criminal process is under an obligation to place the opinion before a provincial court judge. [312]  The Board can also publish its opinions, in whole or in part, for the guidance of the Members, although the Board must ensure that privacy is maintained. [313] 

Execution of a Search Warrant Once Obtained

The criminal law of Canada provides for the execution of search warrants within the terms of the Criminal Code. However, both parliamentary privilege and the criminal law are part of the general and public law of Canada. The Speaker, therefore, is placed in a sensitive position when police officers attend at the Parliament Buildings in order to execute a search warrant. The Speaker must ensure that the corporate privilege of the House to administer its affairs within the precinct, as well as the privileges of individual Members to participate freely in the proceedings, are not infringed. At the same time, the Speaker must be careful not to obstruct the administration of criminal justice.

In practice, the police recognize that the law does not allow them to enter the Parliament Buildings without the permission of the Speaker. For the police to bypass the Speaker in order to execute a search warrant (even if the Speaker would in the end have allowed them to enter for that purpose) could amount to a breach of privilege and possibly a contempt of the House. The Speaker, therefore, personally examines every search warrant that the police wish to execute within the precinct. It has been established in law that the police must produce a search warrant upon request so that an occupier of property may satisfy himself that the search is lawful. [314]  Indeed, Section 29(1) of the Criminal Code provides that: “It is the duty of every one who executes a process or warrant to have it with him, where it is feasible to do so, and to produce it when requested to do so.”

An obvious distinction exists between the Speaker acting on behalf of the House and its Members and other citizens faced with the same situation when the police wish to execute a search warrant. Whereas the police must produce a warrant upon request in the ordinary case, the law requires the police to present themselves to the Speaker before entering a particular Member’s office within the parliamentary precinct which is to be searched, in order for the Speaker to be satisfied that the search is lawful.

It is essential to understand that throughout this process, the Speaker can do no more than ensure that the search warrant is lawful “on its face” and that it is executed according to its terms. In no sense does the Speaker enjoy the right to review the decision to issue the warrant in the first instance. To do so could amount to an obstruction of justice and would undeniably blur the distinctions between Parliament as a legislative body on the one hand and the judicial and executive functions in respect of the issuance of the search warrant and the administration of justice on the other.

In the examination of a search warrant, there are two major considerations which the Speaker takes into account: the procedural sufficiency of the search warrant and the precise description of the documents sought under the search warrant. [315]  Essentially, the Speaker’s role in reviewing a search warrant is restricted to an examination based on form and content.

Ultimately, a Member of the House of Commons is not “above the law”. The Member is, however, entitled to the full protection of the law, including the application of both corporate and individual parliamentary privilege and is subject to the criminal law and the protection it provides. Parliamentary privilege is not the privilege of an élite group but rather a necessary component of what is required for the Canadian electorate’s representatives to conduct public business on behalf of all Canadians free from interference and intimidation.


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