As a collectivity, the House of Commons has
a certain number of rights which it claims or which have been accorded to it by
statute. For example, the House claims the right to institute inquiries into
any matter, to require the attendance of witnesses, and to order the production
of documents. The Parliament of Canada Act confers the right to
administer oaths to witnesses.
The rights and powers of the House as a
collectivity may be categorized as follows:
regulation of its own internal affairs;
authority to maintain the attendance and service of its Members;
power to discipline;
right to institute inquiries and to call witnesses and demand papers;
right to administer oaths to witnesses appearing before it; and
right to publish papers without recourse to the courts relating to the content.
The two most dominant rights or powers are
the right of the House to regulate its own internal affairs and the power to
The exclusive right of the House of Commons
to regulate its own internal affairs refers to its control of its own debates, agenda
and proceedings as they relate to its legislative and deliberative functions. This right was affirmed in 1993 in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly) and
has since been reaffirmed in a number of important court decisions, including Canada (House of Commons) v. Vaid in 2005 and Knopf v. Canada (House of Commons)
in 2006. Indeed, in the Vaid decision, the Supreme Court noted that
the categories of privilege include:
… control by the Houses of Parliament over
‘debates or proceedings in Parliament’ (as guaranteed by the Bill of Rights of
1689) including day-to-day procedure in the House, for example the practice of
the Ontario legislature to start the day’s sitting with the Lord’s Prayer….
The House of Commons can make and change
its own rules and manage its internal affairs without outside interference. Its
internal procedures and rules as contained in the Standing Orders, special
orders or Speaker’s rulings are protected by parliamentary privilege and cannot
be questioned by the courts or any place outside of Parliament. The House of Commons is free from judicial review of its decisions
when these are made pursuant to Standing Order, special order, sessional order
or resolution. Recent attempts to review the actions and decisions of the House
of Commons or its committees have been rejected by the courts. In 1999, the
Ontario Court (General Division) dismissed an action brought against the House
for a resolution it had adopted restricting an individual from the precincts of
Parliament. In 2006, the Federal Court upheld the right of parliamentary
committees to adopt and enforce their own internal procedures.
This is also true of Speakers’ rulings
interpreting such orders or resolutions. Thus, if Members feel that the rules
of the House are not being applied as they would wish, there is no appeal to
the courts. If the Standing Orders are breached, the only place to raise the
point of order is in the House of Commons. Neither is a Speaker’s ruling on
such a point of order reviewable by the courts.
The right to regulate its own internal
affairs does not mean that the House is above the law. However, where the
application of statute law relates to a proceeding in Parliament or a matter
covered by privilege, it is the House itself which decides how the law is to
apply and the House’s decision cannot be reviewed in the courts. Where the
question arises in relation to administration, outside of a proceeding or
parliamentary function, the law may be enforceable against the House.
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”. It is well established that, by extension, the House has complete
and sole authority to regulate and administer its precinct, without outside
interference, including controlling access to the buildings.
Process servers ordinarily may not enter
the precinct in order to serve a subpoena or other legal process on anyone
without the permission of the Speaker. This was most forcefully stated by Speaker Fraser in a ruling given
in May 1989 involving the service of a subpoena and the rights of Members
appearing as witnesses in court. Speaker Fraser asserted that since the permission of the
Speaker had not been sought nor obtained for the service of the subpoena on the
Member, 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
Police forces also may not enter the
precinct to investigate the commission of an offence without permission from
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 within the
terms of the Criminal Code. 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
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.
It is not the precinct of Parliament but the function being carried out which
is protected. A Member cannot be arrested within the Parliament Buildings without
the permission of the House, but can be arrested on the grounds surrounding the
buildings as suggests the 1965 case of Gilles Grégoire (Lapointe) who was
arrested for non-payment of traffic fines.
The Speaker 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 not only that the corporate
privilege of the House to administer its affairs within the precinct is not
infringed, but also that the privileges of individual Members to participate
freely in the proceedings are not compromised. At the same time, the Speaker
must be careful not to be seen as obstructing the administration of 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.
A 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 searching a particular
Member’s office within the Parliamentary Precinct in order for the Speaker to
be satisfied that the search is lawful. The Member concerned also has a right
to a copy of the search warrant.
This authority to grant or deny permission
was established in two separate incidents which occurred in the 1970s. The
first case occurred in 1973 when the parliamentary office of
Flora MacDonald (Kingston and the Islands) was visited by the Ottawa City
Police and the RCMP. The two police forces were inquiring about documents
missing from the Department of Indian Affairs and had not 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
the Standing Committee on Privileges and Elections 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.
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”.
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
In 1979, Terry Sargeant (Selkirk–Interlake)
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 his permission to
search the office, Speaker Jerome found that there was no prima facie
breach of privilege and indicated to the House that he had exercised his
discretion to refuse permission for 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.
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.
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”.
As part of the recommendations included in its Third Report, which dealt
exclusively with procedures surrounding the execution of search warrants within
the Parliamentary Precinct, the Special Committee on
the Review of the Parliament of Canada Act stated:
The privileges, immunities and powers of the
House of Commons and its Members are established by section 18 of the
Constitution Act, 1867, and section 4 of the Parliament of Canada Act.
These privileges are intended to enable Members of Parliament to carry out
their functions and activities and to represent Canadians. These privileges,
immunities and powers must be considered and respected in the execution of
search warrants ….
The House unanimously approved the Special
Committee’s Third Report. By unanimously adopting the Report, the House reaffirmed the following
principles respecting the execution of search warrants:
Well‑established parliamentary tradition provides that search
warrants may only be executed within the precinct of Parliament with the
consent of the Speaker.
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
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
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. Essentially, the Speaker’s role in reviewing a search warrant is
restricted to an examination based on form and content and to ascertain if the
execution of the warrant could otherwise result in a breach of privilege.
This privilege is the underlying premise
for the individual Member’s privileges of exemption from jury duty and
exemption from being summoned to appear as a witness. Maingot notes: “…
the Parliament of Canada has first call on the services of its Members and,
except in the case of criminal matters or breaches or provincial statutes
(quasi-criminal) … Parliament will not tolerate impediments to Members who are
on their way to attend the sittings”.
The Standing Orders of the House provide
that every Member is bound to attend the sittings of the House unless otherwise
occupied with parliamentary activities or functions or on public or official
business. Because the House sits during prime working hours, scheduling
conflicts with other parliamentary or official commitments (for example,
committee meetings) may prevent Members from being present in the Chamber. In
practice, considerable leniency is exercised in this regard. Indeed, the Chair
has often discouraged any references to the absence of any individual Member. As the attendance of Members is seen to be a function of the party
leadership usually through the Whip or as a matter of personal obligation if
the Member is without party affiliation, it is rarely necessary for the House
as a whole to take action in this regard.
Closely related to the right of the House
to regulate its own internal affairs and its authority to maintain the attendance
and service of its Members is the House’s right to discipline its own Members
for misconduct and the power to punish anyone for interfering with the conduct
of parliamentary business (which it considers to amount to a breach of
privilege or contempt). While Article 9 of the Bill of Rights gives
both Members and “strangers” protection from outside interference when engaged in the business
of the House, it also subjects them to the disciplinary power of the House for
their conduct during proceedings. May notes that the power to punish for contempt probably
originated in medieval times when the English Parliament was primarily a court
of justice. This power affords the House a wide range of penalties for dealing
with misconduct. Non-Members (“strangers”) may be removed from the galleries of
the Chamber or from the Parliamentary Precinct, be given a reprimand, or
incarcerated. Members may be called to order, directed to cease speaking
because of persistent repetition and irrelevance in debate, “named” for disregarding
the authority of the Chair and suspended from the service of the House,
incarcerated, or even expelled. The disciplinary power of the House is to some
extent regulated through the Standing Orders so that each case need not be
raised formally in the House in order to be dealt with efficiently. For example, this disciplinary power allows the House, through its
senior officials, to refuse entry to a stranger who has on previous occasions
been guilty of misconduct in the public galleries or corridors.
In addition, the conduct of Members is
regulated in part by the Conflict of Interest Code for Members of the House
of Commons. For example, Members are required to disclose a private interest in
a matter before the House or a committee and to refrain from participating in
debate or voting on the question. If a Member has reasonable grounds to suspect that another Member
has not complied with the Code, he or she may ask the Conflict of Interest and
Ethics Commissioner to conduct an inquiry into the matter. The Commissioner
submits a report on the results of the inquiry to the Speaker for tabling in
the House. If the Commissioner concludes that the Member has deliberately
contravened the conflict of interest guidelines set down in the Code, the
Commissioner may recommend appropriate sanctions. The Member is then subject to
the disciplinary powers of the House, if the House chooses to take action. Since the Conflict of Interest Code for Members of the
House of Commons came into force at the beginning of the Thirty‑Eighth
Parliament (2004‑05), no sanctions have been imposed on Members found to
have contravened it.
Individuals who come within the
jurisdiction of the House, whether strangers, staff or Members themselves, are
subject to its discipline for any form of misconduct not only within the
Parliamentary Precinct but also outside.
For example, sittings of a committee outside the precinct would be covered by
the disciplinary power of the House.
Though a keystone of parliamentary
privilege, the power of the House to discipline is nevertheless
limited: the House has the right to reprimand and to imprison only until
the end of the session and it does not have the power to impose fines. Parliament has been reluctant to use these powers and such cases
have been rare. In the event of incarceration, the accused would remain
imprisoned until he or she has complied with the Order of the House or until
the end of the session.
Individuals may be summoned to appear at
the Bar of the House for an offence against the dignity or authority of
Parliament, if the House adopts a motion to that effect. When summoned, the
individual stands at the Bar, a brass rod extending across the floor of the
Chamber inside its south entrance beyond which strangers are not allowed. The
House has ordered some Members to attend in their places in the House and has
also summoned Members to the Bar of the House to answer questions or to receive
censures, admonitions or reprimands. Although, at first view, this may not
appear to be a punishment, the summoning of a Member to attend in his or her place
or of an individual to appear at the Bar is an extraordinary event which places
the Member or individual under the authority of the House vested with its full
On a number of occasions in the late
nineteenth and early twentieth centuries, individuals were summoned to appear
before the Bar of the House in order to answer to the authority of the House:
1873, James Bell, a returning officer, was summoned to appear before the Bar to
answer for his actions in a contested election. He appeared, asked and received
permission to have counsel, and answered questions on three occasions. The
House later adopted a resolution criticizing Mr. Bell’s actions. He was
recalled to the Bar, the resolution was read out to him and he was discharged.
in 1873, the editor of the Courrier d’Outaouais newspaper, Elie Tassé,
who was also a sessional employee of the House of Commons, was ordered to
appear before the Bar of the House to answer questions about an article
reflecting on two Members of the House. Mr. Tassé appeared, answered
questions and was then directed to withdraw.
November 1873, the Sergeant‑at‑Arms was ordered to take Ottawa
Alderman John Heney into custody and bring him to the Bar of the
House for attempting to bribe a Member. Mr. Heney was held in custody from
November 4 to November 7, 1873, but he never appeared at the Bar
as Parliament was prorogued on November 7.
March 31 and April 1, 1874, Louis Riel (Provencher) was ordered to
attend in his place in the House for having fled from justice in the matter of
the murder of Thomas Scott. He failed to attend and was later expelled
from the House. Three witnesses (the Attorney General of Manitoba and two
Ottawa police officers) were summoned to appear at the Bar in relation to the
Riel matter. All three appeared and were questioned.
1879, a visitor in the gallery, John Macdonnell, directed offensive
remarks to a Member and, having been removed from the gallery, repeated the
remarks in a note delivered to the Member at his place in the House. As a
result, he was summoned to appear at the Bar, whereupon he apologized. He was
directed to withdraw and the House then adopted a motion stating that
Mr. Macdonnell had breached the privileges of the House, but that no
further action was necessary in light of the apology. Mr. Macdonnell was
recalled and the resolution was read to him before he was discharged from
May 1887, John Dunn, a returning officer, was asked to appear before
the Bar to answer for his conduct during an election. Mr. Dunn received
the permission of the House to have counsel and answered many questions. He was
discharged and no further action was taken.
1891, Michael Connolly, a witness before the Privileges and Elections
Committee, attended as requested with certain documents which he refused to put
into the hands of the Committee. The Committee reported this to the House and
requested “the action of the House”. A motion was then moved and adopted for
Mr. Connolly to appear before the Bar. He appeared, was questioned, granted
counsel, and ordered to produce the books of account requested by the
in 1891, the Public Accounts Committee reported that André Senécal, an employee
of the Government Printing Bureau, had failed to appear when called as a
witness. The House adopted a motion summoning him to appear at the Bar. When he
failed to do so, the House ordered that he be taken into the custody of the
Sergeant‑at‑Arms, who could not locate him. No further action was
1894, two witnesses (Jean Baptiste Provost and Omer Edouard Larose) failed to
appear when summoned as witnesses before the Privileges and Elections
Committee. The Committee reported this and asked for “the action of the House”.
A motion was adopted summoning the two witnesses to appear before the Bar. They
failed to comply and the House ordered them to be taken into the custody of the
Sergeant‑at‑Arms in order to be brought to the Bar of the House.
They later appeared, answered questions and were discharged.
1906, a Member complained about a newspaper article; it was read to the House
by the Clerk and a motion was adopted summoning its author,
Joseph Ernest Eugène Cinq‑Mars, to appear before the Bar
of the House. Mr. Cinq‑Mars appeared and answered questions during
that sitting of the House and at another sitting. The House then adopted a
motion of censure against him, which was read to him before he was discharged.
1913, R.C. Miller, a witness before the Public Accounts Committee, refused
to answer questions. This was reported to the House, whereupon it adopted a
motion summoning Mr. Miller to appear before the Bar and answer questions.
Mr. Miller made two appearances before the Bar and on both occasions was
permitted to have counsel. He was directed to withdraw after he refused to
provide the information requested by the Committee. The House then adopted a
motion stating that Mr. Miller was in contempt of the House and that he
should be imprisoned. Mr. Miller was again brought before the Bar and the
resolution was read to him.
No private citizen has been called to the
Bar since 1913. However, in 1991 and again in 2002, Members were ordered to attend
the Bar of the House. As sitting Members, these
individuals could have received the admonishment at their assigned place, which
would have been the normal practice.
In 1991, a Member rose on a question of privilege to allege that a contempt of the House had occurred at the adjournment of
the previous sitting, when Ian Waddell (Port Moody–Coquitlam), angry
at having missed a vote, had attempted to take hold of the Mace as it was being
carried out of the Chamber. Speaker Fraser found a prima facie case of
privilege, and the House adopted an order calling Mr. Waddell to the Bar of the
House to receive a reprimand from the Chair. Accordingly, the Member appeared
at the Bar, was admonished by the Chair and declared guilty of a breach of
privilege and a gross contempt of the House.
In 2002, angry with the outcome of a vote
on his private Member’s bill, Keith Martin (Esquimalt–Juan de Fuca) took
hold of the Mace. This action was raised as a question of privilege, a prima
facie case of privilege was subsequently found by Speaker Milliken, and the
House adopted a motion ordering the Member to appear at the Bar of the House to
apologize for his actions. The following day, the Member appeared at the Bar of
the House, the Speaker invited him by name, rather than by the name of his
riding, to address the House. The Member apologized to the House and then took
The House of Commons possesses the right to
confine individuals as a punishment for contempt,
although it has not exercised this authority since 1913. In the years immediately following Confederation, the House ordered the Sergeant‑at‑Arms
to take individuals into custody on four occasions and ordered the imprisonment
of others. Again in 1913, the Sergeant-at-Arms was ordered to imprison an
In May 1868, Henri Joly (Lotbinière)
who was chosen Chairman of a select committee failed to appear when the
committee was sworn in and a motion was adopted in the House ordering him to be
taken into custody by the Sergeant‑at‑Arms. The Sergeant‑at‑Arms
informed the House that he had been unable to comply with the Order because Mr.
Joly was absent from the city and no further action was taken. In 1873, two Members, Prime Minister
Sir John A. Macdonald and Frederick Pearson (Colchester), failed to appear when they were to be sworn in as members of a committee. A
motion was adopted in the House to have them taken into the custody of the
Sergeant‑at‑Arms. When Mr. Macdonald appeared,
Dr. Charles Tupper (Cumberland) read an affidavit into the record,
stating that the Member was unable to perform his duties for medical reasons.
Mr. Macdonald was discharged. No further action was taken against
Mr. Pearson, the Sergeant‑at‑Arms having informed the House
that he had been unable to comply with the Order, due to Mr. Pearson’s
absence from the city. Also in 1873, Alderman John Heney of Ottawa was held in
custody from November 4 to November 7 while waiting to appear at the Bar of the House on the charge of
attempting to bribe a Member. In 1891, the House adopted a motion ordering the Sergeant‑at‑Arms
to take Thomas McGreevy (Quebec West) into custody for failing to attend
in his place to answer questions. The Sergeant‑at‑Arms reported
back to the House two days later that he had been unable to locate the Member. In 1913, the House ordered the imprisonment of R.C. Miller after
he appeared at the Bar and refused to answer questions. He remained in prison
for some four months until the end of the session.
Parliamentary privilege holds Members
responsible for acting in character with the function they fulfil as elected
representatives. Disobedience to orders of the House, and actions such as
making threats, offering or taking bribes, or intimidating persons are offences
for which Members can be reprimanded or even expelled. Under section 18 of
the Constitution Act, 1867, which endowed the House with the same
privileges, immunities, and powers as enjoyed by the British House of Commons,
the House of Commons possesses the power of expulsion. A serious matter,
expulsion has a twofold purpose as explained in May:
The purpose of expulsion is not so much
disciplinary as remedial, not so much to punish Members as to rid the House of
persons who are unfit for membership. It may justly be regarded as an example
of the House’s power to regulate its own constitution. But it is more
convenient to treat it among the methods of punishment at the disposal of the
Even this most drastic power has, however,
its limits, as is noted in Bourinot:
The right of a legislative body to suspend
or expel a member for what is sufficient cause in its own judgement is
undoubted. Such a power is absolutely necessary to the conservation of the
dignity and usefulness of a body. Yet expulsion, though it vacates the seat of
a member, does not create any disability to serve again in parliament.
The House may expel a Member for offences
committed outside his or her role as an elected representative or committed
outside a session of Parliament. As Maingot explains, it “extends to all
cases where the offence is such as, in the judgement of the House, to render
the Member unfit for parliamentary duties”.
The House has expelled Members on four
occasions. Louis Riel (Provencher) was expelled from the House twice. Riel
had fled from justice after being charged with the murder of Thomas Scott.
In the spring of 1874, the House ordered Mr. Riel to attend in his place.
He failed to do so and the House expelled him.
In the autumn of that year, he was re‑elected as the Member for
Provencher. Mr. Riel’s second expulsion occurred in February 1875. On
February 22, 1875, an “Exemplification of Judgement Roll of Outlawry in
the case of Regina vs. Riel” was tabled in the House. On
February 24, after this document was read to the House, the House adopted
two orders, one noting that Mr. Riel had been judged an outlaw for felony
and the other ordering the Speaker to issue his warrant for a new writ of
election for the electoral district of Provencher, thus expelling
In 1891, Thomas McGreevy (Quebec West)
was accused by Israel Tarte (Montmorency) of corrupt practices concerning
construction work in the harbour at Quebec City, and the matter was referred by
the House to the Select Standing Committee on Privileges and Elections.
Mr. McGreevy refused to answer questions put to him while appearing before
the Committee. The Committee reported this to the House on August 12, 1891, and requested that the House take action. On August 13, Mr. McGreevy
was ordered by the House to attend in his place on August 18. On that day,
Mr. McGreevy was found not to be in attendance and the Sergeant-at-Arms
was ordered to take the Member into custody. On August 19,
Mr. McGreevy sought to resign his seat, but the House refused to accept
the resignation as his seat was being contested at the time. On
September 29, the House adopted a resolution finding Mr. McGreevy
guilty of contempt of the authority of the House by not attending in his place
when ordered, as well as being guilty of certain other offences. The House then
adopted a second resolution expelling Mr. McGreevy.
On January 30, 1947, the House resolved that, since Fred Rose (Cartier) had been convicted of violating the Official
Secrets Act and had been sentenced to serve six years in prison, he had
become incapable of sitting or voting in the House. The motion also ordered the
Speaker to issue a warrant to the Chief Electoral Officer to make out a writ of
election to fill the vacancy. Although expulsion was not explicitly referred to
in the motion, the House declared his seat vacant.
By virtue of the Preamble and section 18 of
the Constitution Act, 1867, Parliament has the ability to institute its
own inquiries, to require the attendance of witnesses and to order the
production of documents, rights which are fundamental to its proper
functioning. These rights are as old as Parliament itself. Maingot
The only limitations, which could only be
self‑imposed, would be that any inquiry should relate to a subject within
the legislative competence of Parliament, particularly where witnesses and
documents are required and the penal jurisdiction of Parliament is
contemplated. This dovetails with the right of each House of Parliament to
summon and compel the attendance of all persons within the limits of their
These rights are now exercised for the most
part by committees pursuant to powers delegated to them by the House in the
Each standing committee has a permanent
order of reference which allows its members to conduct inquiries into
departmental and policy-area matters. In addition, the House may refer
additional matters to its committees for study. In the course of its study into
a particular matter, a committee may wish to hear testimony from public
officials, private individuals or representatives of groups, organizations and
associations. In the majority of cases, witnesses invited to appear before a
committee appear willingly. If a witness declines an invitation to appear, the committee may
issue a summons to the witness by adopting a motion to that effect. If the
witness still refuses to appear, the committee may report the matter to the
House and the House then may order the witness to appear. If the witness
disobeys the order, the witness may be declared guilty of contempt.
Committees are not empowered to compel the
attendance of the Queen, the Governor General, Members, Senators, officers of
another legislature or persons outside of Canada.
Should a Member refuse to testify, the committee may report the matter to the
House and then the House will decide what action is necessary. While Senators
may appear before House committees voluntarily, if a committee wishes to extend
a formal invitation to a Senator, the House may adopt a motion for a message to
be sent to the Senate requesting that leave be granted for a Senator to appear
before the committee.
For the purposes of an inquiry, the
committee may send for any papers that are relevant to its order of reference.
Typically these documents include government reports, statistics, memoranda,
agreements and briefs and they are, with rare exceptions, provided voluntarily. As stated in a report of the Standing Committee on Privileges and
Elections in 1991:
The power to send for persons, papers and
records has been delegated by the House of Commons to its committees in the
Standing Orders. It is well established that Parliament has the right to order
any and all documents to be laid before it which it believes are necessary for its
information. … The power to call for persons, papers and records is absolute,
but it is seldom exercised without consideration of the public interest. The
House of Commons recognizes that it should not require the production of
documents in all cases; considerations of public policy, including national
security, foreign relations, and so forth, enter into the decision as to when
it is appropriate to order the production of such documents.
If a committee’s request that it be given
certain documents is met with resistance or disregarded, the committee may
adopt a motion ordering the production of the requested documents. If such an order is ignored, the committee has no means to enforce
the order on its own. It may report the matter to the House and recommend that
appropriate action be taken. It is then a decision of the House whether or not to issue an order
for the production of papers. This may be done by the adoption of a motion or by concurring in the committee’s report.
If an order is issued and disregarded, the disciplinary powers of the House may
be invoked. Individuals could be called to the Bar of the House, cited for
contempt or otherwise punished. In 1891, a witness before a committee was called to the Bar of the House for refusing to produce documents requested by the
committee. In 2004, the House found three companies in contempt of the House
for refusing to provide a committee with the documents it had requested.
The right of the House and of its
committees to examine witnesses under oath, a right that was not part of the
ancient custom of Parliament, has been conferred by legislation and is now
contained in the Parliament of Canada Act.
The provisions of the Act allow witnesses to be examined under oath and
authorize the Speaker, committee Chairs and anyone appointed by the Speaker to
administer an oath or affirmation.
Under normal circumstances, witnesses
before House committees are not sworn in. It is generally accepted that
witnesses have a duty to speak the truth regardless of whether or not their
testimony is given under oath. The decision as to the swearing-in of witnesses is entirely left to
the discretion of the committee. If a witness refuses to be sworn in, the
committee, not being empowered to deal with a perceived contempt, may report
the matter to the House.
Although the testimony of a witness before
a parliamentary committee is protected by parliamentary privilege, if a
committee determines that a witness has wilfully lied or misled it, the matter
could be reported to the House. If the House finds that the witness has
deliberately misled the committee, the witness could be cited for contempt. If
the testimony was given under oath and the House determines that the witness
wilfully lied to the committee, the House may deem it appropriate to waive its
privileges and refer the matter to the Crown for a determination as to whether
or not there is sufficient evidence to charge the offender with perjury.
In 2003, a subcommittee of the Standing Committee on Government Operations and Estimates was mandated to look into the
possibility that the Privacy Commissioner and certain employees in the Office
of the Privacy Commissioner had provided deliberately misleading testimony
during the Committee’s hearings into matters related to that Office. In its
report to the House on the subcommittee’s findings and conclusions, the
The formal placing of witnesses under oath
does not create obligations that do not exist already. However, we believe it
would communicate the importance of the obligations to which witnesses are
subject more effectively than, for example, simply informing them that their
testimony will have the status of testimony given under oath. More obviously,
it has clear advantages over merely assuming that witnesses are aware of their
duty to speak the whole truth.
The Parliament of Canada Act provides
protection for the publication, by order of the House, of parliamentary papers
such that no lawsuit may be brought relating to the contents of the papers or
This includes all documents published by a committee acting under the authority
of the House. It has been established that householders and other
communications between Members and their constituents are not considered a
“proceeding in Parliament” and are therefore not protected by this particular
R.S. 1985, c. P‑1, ss. 10 to 13.
In Vaid, the Supreme Court rejected the
assertion in Maingot (2nd ed., p. 183) that parliamentary
privilege covers the management of staff (see par. 66). The Court agreed
with the United Kingdom Joint Committee on Parliamentary Privilege which stated
that “the purpose of parliamentary privilege is to ensure that Parliament can
discharge its functions as a legislative and deliberative assembly without let
or hindrance. This heading of privilege best serves Parliament if not carried
to extreme lengths” (Joint Committee on Parliamentary Privilege, Report,
March 30, 1999, Chapter 5,
 1 S.C.R. 319.
 1 S.C.R. 667; 2006 FC 808.
Vaid, par. 29.10.
In 2001, the Court of Appeal for Ontario handed down a judgement which
established that the “Standing Orders are protected by parliamentary privilege
and neither the courts nor any quasi‑judicial body have the right to
inquire into their contents or to question whether a particular part of the
Standing Orders … is necessary or lawful”. The Court was ruling on an appeal
involving a complaint filed with the Ontario Human Rights Commission about the
recital of the Lord’s Prayer in the Ontario Legislative Assembly. See Ontario (Speaker of the Legislative Assembly) v. Ontario (Human Rights
Commission), (2001) 54 O.R. (3d) 595, par. 23 and 48.
On June 4, 1998, the House adopted the following Order: “That this House
order that Ernst Zündel be denied admittance to the precinct of the House
of Commons during the present Session” (Journals, p. 937, Debates,
pp. 7608‑9, 7616). The House had adopted this Order to prevent Mr. Zündel,
a noted Holocaust denier, from holding a press conference in the Press
Gallery’s Conference Room in the Centre Block of the Parliament Buildings. Mr. Zündel
had brought an action against the political parties represented in the House of
Commons, as well as a number of Members of Parliament, seeking a declaration
that the defendants had violated his right to freedom of expression guaranteed
under section 2(b) of the Canadian Charter of Rights and
Freedoms. The lawyer for the plaintiff questioned whether the resolution
denying Mr. Zündel the right to use the precinct of Parliament for a
speech was necessary to the proper functioning of the House. In dismissing the
action, the Court found, among other reasons, that the House of Commons was
exercising its parliamentary privilege in restricting the precinct of the House
of Commons and had not prohibited Mr. Zündel from speaking. The Court concluded
that it should not interfere with the decision of the House (Zündel, Court
File No. 98‑CV‑7845, January 22, 1999).
The Federal Court was asked to determine if the language rights of a witness
before a House committee had been violated when the clerk of the committee
refused to distribute to committee members English-only documents in accordance
with the procedures the committee had established for itself at its
organizational meeting. In Knopf, 2006 FC 808, the Court determined that
“the Committee’s control over its internal proceedings (including the reception
and distribution of documents from witnesses or other outside sources) is
intimately tied to its deliberative function” (par. 56). The Court
concluded that “the distribution of documents falls within the parliamentary
privilege of the Committee to control its internal procedure and is therefore
immunized from review by the Court” (par. 59). Appeal dismissed 2007 FCA
308; leave to appeal to Supreme Court dismissed (SCC file 32416).
For example, although Standing Order 109 confers a right upon demand to a
comprehensive response from the government to a committee report within 120
days of its presentation, the “right”, which belongs to the committee
requesting the response and not to individual Members, is not a legal right of
which the courts may take any notice.
Vaid, par. 34.
Bourinot, 4th ed., p. 37.
Zündel, (1999), 127 O.A.C. 251, par. 18: “… the courts would be
overstepping legitimate constitutional bounds if they sought to interfere with
the power of the House to control access to its own premises”. See also Journals,
June 4, 1998, p. 937, Debates, pp. 7608‑9, 7616. In 2007, the House adopted a motion denying admittance to two representatives of a white
supremacy organization who planned to hold a press conference in the Centre
Block (Journals, October 17, 2007, p. 12, Debates,
On June 4, 1993, Brian Tobin (Humber–St. Barbe–Baie Verte) rose on a
question of privilege, complaining of intimidation and interference as he
attempted to perform his parliamentary duties. The Member explained that while
in the lobby of the House of Commons, he had been served with a notice of
intention to bring action against him unless he withdrew remarks concerning an
individual (Debates, June 4, 1993, pp. 20371‑2, 20375‑7).
On June 10, 1993, Deputy Speaker Champagne delivered a
ruling in which she referred to the long‑standing tradition that process
cannot be served in the precinct of the House of Commons without the permission
of the Speaker. The Deputy Speaker noted that the letter delivered to Mr. Tobin
did not fall under the definition of process (implying an issuance from a court
of law) as legal proceedings had not begun. She commented that, in this
instance, there was no requirement to inform the Speaker and ruled that there
was no prima facie case of privilege (Debates, June 10, 1993,
Debates, April 4, 1989, p. 39; May 19, 1989,
pp. 1951‑3. In March 1989, while Parliament was prorogued, a
subpoena authorized by a British Columbia Supreme Court Justice was served on
David Kilgour (Edmonton Southeast) 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. After receiving a letter ordering him to appear in person in
the British Columbia Supreme Court in Kelowna, Mr. Kilgour complied, although
he refused to give evidence upon being questioned, and just prior to his being
cited for contempt, the counsel for the plaintiff withdrew the subpoena.
Debates, May 19, 1989, pp. 1951‑3.
May, 23rd ed., p. 116.
Maingot, 2nd ed., pp. 164‑5,
171‑2; Vaid, par. 29.1.
See Maingot, 2nd ed., pp. 174‑5 for a summary of the
case. Maingot notes that in finding that no breach of privilege had
occurred, the Standing Committee on Privileges and Elections determined that
the precincts of Parliament do not extend beyond the walls of the buildings.
Journals, September 4, 1973, p. 532, Debates, pp. 6179‑80, 6181.
Journals, September 21, 1973, p. 567.
Journals, September 21, 1973, p. 567.
Debates, November 30, 1979, p. 1891.
Journals, December 14, 1989, p. 1011. See also Robertson,
J.R. and Young, M., “Parliament and the Police: The Saga of Bill C‑79”,
Canadian Parliamentary Review, Vol. 14, No. 4, Winter 1991‑92,
Third Report of the Special Committee on the Review of the Parliament of Canada
Act, presented to the House and concurred in on May 29, 1990 (Journals,
Journals, May 29, 1990, pp. 1775‑6. See also Special
Committee on the Review of the Parliament of Canada Act, Minutes of
Proceedings and Evidence, March 11, 1990, Issue No. 7, pp. 5‑9.
Journals, May 29, 1990, pp. 1775‑6.
Where there is a question of whether the documents, or a computer, to be
searched contain materials covered by privilege (e.g., draft committee reports,
draft speeches, etc.), it may be that the documents or computer should be
seized and kept under the authority of the Speaker until such time as the
question of possible application of privilege is determined (New South
Wales, Legislative Council, Standing Committee on Parliamentary Privilege and
Ethics, Parliamentary privilege and seizure of documents by ICAC, Report
25, December 2003 and Parliamentary privilege and seizure of documents by
ICAC No. 2, Report 28, March 2004).
Maingot, 2nd ed., p. 151.
Standing Order 15.
For further information, see Chapter 4, “The House of Commons and Its
Members”, and Chapter 13, “Rules of Order and Decorum”.
On December 9, 1997, the Senate Standing Committee on Internal Economy,
Budgets and Administration noted, in its Seventh Report, the poor attendance
record of Senator Andrew Thompson and recommended the suspension of
his use of Senate resources for carrying out his parliamentary functions as
well as his travel and telecommunication expenses (Journals of the Senate,
pp. 305‑6). On December 12, 1997, the Senate adopted a motion
ordering the Senator to attend in his place when the Senate resumed sitting in
February 1998. The motion also provided for the referral of the matter of
his continuing absence, in the event the Senator failed to appear, to the
Standing Committee on Privileges, Standing Rules and Orders for the purpose of
determining whether his absence constituted a contempt of the Senate (Journals
of the Senate, pp. 358‑9). See also Journals of the Senate,
December 15, 1997, p. 369; December 16, 1997,
pp. 378-82. Senator Thompson having failed to appear when the Senate
resumed sitting on February 10, 1998, the Standing Committee on Privileges,
Standing Rules and Orders considered the matter as ordered and recommended that
the Senator be ordered to appear before it on February 18, 1998 to explain his
absence (Journals of the Senate, February 11, 1998, pp. 426‑8).
Senator Thompson did not appear before the Committee as ordered and on
February 19, 1998, the Committee presented another report on the
matter. In the report, adopted later in the sitting, the Committee recommended
that Senator Thompson be found in contempt for his prolonged absence, that he
be suspended from the Senate for the remainder of the session and that the
matter of his expense allowance be referred to the Standing Committee on
Internal Economy, Budgets and Administration for immediate action. Later the
same sitting day, the Senate also adopted a motion prohibiting Senator Thompson
from receiving his expense allowance during the period of suspension (Journals
of the Senate, February 19, 1998, pp. 456-8, 460‑1).
Senator Thompson resigned his seat in the Senate the following month.
A “stranger” is anyone who is not a Member of the House of Commons or an
official of the House. This includes Senators, diplomats, departmental
officials and journalists, as well as members of the public.
Maingot, 2nd ed., p. 180. For a discussion on the disciplinary
powers of the House of Commons, see Robert, C. and Armitage, B., “Perjury,
Contempt and Privilege: The Coercive Powers of Parliamentary Committees”, Canadian
Parliamentary Review, Vol. 30, No. 4, Winter 2007, pp.
May, 23rd ed., p. 156.
Power is delegated to the Speaker, particularly in relation to discipline
within the Chamber, under the provisions of Standing Orders 10, 11 and 16. For
further information, see Chapter 13, “Rules of Order and Decorum”. Power
is also delegated to the Sergeant‑at‑Arms in the case of
“strangers” under Standing Orders 157 and 158.
Appendix to the Standing Orders of the House of Commons, in particular ss. 8
to 13.1. For further information, see Chapter 4, “The House of Commons and
Conflict of Interest Code for Members of the House of Commons, Appendix
to the Standing Orders, ss. 3(3)(b.1), and 12 to 13.1. See also the
question of privilege raised by Derek Lee (Scarborough—Rouge River) on May 26, 2008 (Debates, pp. 6006‑10), Speaker Milliken’s
subsequent ruling delivered on June 17, 2008 (Journals, pp. 1003, 1006,
Debates, pp. 7072‑4) and the changes made to the Conflict
of Interest Code on June 5, 2008 (Journals, pp. 918‑21).
For further information, see Chapter 4, “The House of Commons and Its Members”.
Conflict of Interest Code for Members of the House of Commons, Appendix
to the Standing Orders of the House of Commons, ss. 27 and 28. Pursuant to
the Code, a motion respecting such a report may be moved and debated for no
more than two hours during Routine Proceedings, after which the question will
be put forthwith (s. 28(11)). If no motion is moved and disposed of prior
to the 30th sitting day after the day on which the report was presented, the
motion to concur in the report will be deemed moved and the Speaker will put
the question to dispose of the motion to the House (s. 28(12)).
Maingot, 2nd ed., pp. 193‑5.
May, 23rd ed., pp. 161‑2,
notes that the last time the British House of Commons imposed a fine was in
1666, although its power to do so was questioned by Lord Mansfield in R. v.
Pitt in 1762. However, in the 1810 case of Burdett v. Abbott, the
Court indicated that the House ought to have the power to protect itself from
obstruction and insult. In 1967, 1977 and 1999, three committees studying the
rights and immunities of the British Parliament recommended legislation to give
the House a statutory power to fine. In 2004, the Canadian House adopted a
report of the Standing Committee on Agriculture and Agri-Food which recommended
that three companies be found in contempt of the House for refusing to provide
the Committee with documents it had requested (Journals, May 6, 2004, p.
388). When two of the companies continued to refuse to comply with the request,
the Committee presented another report to the House on the matter. The
Committee exceeded the accepted powers of discipline and requested that the
House impose a daily fine on the two companies in order to compel them to
produce the papers the Committee had summoned. See the Fourth Report of the
Standing Committee on Agriculture and Agri‑Food, presented to the House
on May 13, 2004 (Journals, p. 416). The House did not
concur in the Report (Debates, May 13, 2004, pp. 3115-6).
Exceptionally, in one case, a former Member was summoned to the Bar in order
for the House to pay tribute to his years of service. On March 1, 2002, a motion was adopted by unanimous consent calling for Herb Gray to appear at the Bar to hear
remarks by one representative of each party and to respond thereto (Journals,
p. 1149). On March 13, 2002, Mr. Gray appeared at the Bar and
Members paid tribute to his long service as a Member of Parliament (Journals,
p. 1171, Debates, pp. 9588‑93).
Journals, March 10, 1873, pp. 10‑2; March 26, 1873,
pp. 70‑3; March 27, 1873, pp. 75‑7; March 28, 1873, p. 84.
Journals, April 7, 1873, pp. 133‑4. According to Bourinot,
4th ed., p. 53, the Speaker subsequently informed the House that Mr.
Tassé had been dismissed.
Journals, November 3, 1873, pp. 134‑5; November 4, 1873, p. 139; November 7, 1873, p. 142. For
further information, see the section in this chapter entitled “Taking
Individuals into Custody and Imprisonment”.
Journals, March 30, 1874, p. 8; March 31, 1874, pp. 10‑3; April 1, 1874, pp. 14, 17‑8;
April 9, 1874, pp. 32‑9; April 15, 1874, pp. 64‑5; April 16, 1874, pp. 67‑71; April 17, 1874, p. 74.
For further information, see the section in this chapter entitled “Expulsion”.
Journals, May 13, 1879, p. 423; May 15, 1879,
p. 436; February 16, 1880, p. 24; February 24, 1880,
Journals, May 12, 1887, p. 121; May 30, 1887,
Journals, June 5, 1891,
p. 205; June 16, 1891, pp. 211‑2.
Journals, August 27, 1891, p. 454; September 1, 1891,
Journals, June 7, 1894,
p. 242; June 11, 1894, p. 288; June 13, 1894, pp. 298‑300.
Journals, June 6, 1906,
p. 342; June 7, 1906, pp. 345‑6; June 14, 1906,
pp. 370‑7. Also in 1906, William T. Preston, an
inspector of Canadian immigration in Europe for the Department of the Interior,
was a witness before the Agriculture and Colonization Committee as well as the
Public Accounts Committee and he refused to answer certain questions. Both
committees reported this to the House. A motion was moved, based on the report
of the Agriculture Committee, that he should be summoned to appear before the
Bar of the House. However, the motion was amended to the effect that Mr.
Preston was not required to appear, and the motion was adopted as amended (Journals,
May 30, 1906, p. 316; June 1, 1906, p. 323; June 4,
1906, pp. 331‑3; July 3, 1906, pp. 475‑6).
Journals, February 14, 1913, p. 249; February 17, 1913,
p. 254; February 18, 1913, pp. 266‑7;
February 20, 1913, pp. 274‑8. For further information, see the
section in this chapter entitled “Taking Individuals into Custody and
In 2003, a prima facie breach of contempt having been found,
Derek Lee (Scarborough–Rouge River) was prepared to move a motion to
have George Radwanski, a former Privacy Commissioner, summoned to the Bar
of the House for deliberately providing misleading information to the Standing
Committee on Government Operations and Estimates. Before he could move the
motion, the Chair of the Committee, Reg Alcock (Winnipeg South), rose
to advise the House that he had received a letter of apology from
Mr. Radwanski. After consulting with party representatives, Mr. Lee
moved a motion in which no reference to the Bar of the House was made; the motion
was adopted (Journals, November 6, 2003, pp. 1245, 1249, Debates,
pp. 9229‑31, 9237). See, in particular, the remarks of Mr. Lee
in Debates, November 6, 2003, p. 9230.
May, 23rd ed., p. 163. See also Bourinot, 4th ed.,
Journals, October 31, 1991, pp. 574, 579, Debates, pp. 4271‑85,
Journals, April 22, 2002, pp. 1323‑4, Debates,
pp. 10654‑70; Journals, April 23, 2002, pp. 1337‑8; April 24, 2002, p. 1341,
Debates, p. 10770.
Maingot, 2nd ed., pp. 193‑209. In the United Kingdom,
when ordering the committal of an offender for contempt, the House of Commons
directs the Speaker to issue a warrant to the Serjeant at Arms and, if
appropriate, to the governor of a prison. The warrant does not have to state
the cause of committal nor does the offender have to have been found guilty of
contempt before being taken into custody. The House of Lords commits an
individual by order without a warrant. The order, signed by the Clerk of
Parliaments, is the authority under which officers of the House and others
execute their duty. Offenders committed by order of either House have either
been detained in a prison or in the custody of the Black Rod or the Serjeant at
Arms as the case may be. The House of Lords has the power to commit offenders
to prison for a specified term that may extend beyond the duration of a
session, whereas the House of Commons is considered to be without power to
imprison beyond a session. The practice in the Commons has been to commit
offenders until they present petitions expressing contrition for their offences
and praying for their release. They may also be released upon the adoption of a
motion in the House discharging them. The Joint Committee on Parliamentary
Privilege recommended the abolition of the power to imprison but not the power
to detain temporarily those individuals declared guilty of misconduct within
the precincts of Parliament. For further information, see May, 23rd ed.,
Journals, May 1, 1868, pp. 267‑8; May 2, 1868, p. 271.
Journals, May 10, 1873, pp. 317‑8; May 12, 1873,
Journals, November 3, 1873, pp. 134‑5; November 4, 1873,
p. 139; November 7, 1873, p. 142. For further information,
see the section in this chapter entitled “Censure, Reprimand and the Summoning
of Individuals to the Bar of the House”.
Journals, August 18, 1891, p. 414; August 20, 1891, p. 422.
For further information, see the section in this chapter entitled “Expulsion”.
Journals, February 14, 1913, p. 249; February 17, 1913,
p. 254; February 18, 1913, pp. 266‑7;
February 20, 1913, pp. 274‑8. For further information, see
the section in this chapter entitled “Censure, Reprimand and the Summoning of
Individuals to the Bar of the House”.
May, 20th ed., p. 139. See also May, 23rd ed., pp. 164‑5.
Bourinot, 4th ed., p. 64. For a discussion about expulsion and
in particular the possible role of the Canadian Charter of Rights and
Freedoms, see Ronyk, G., “The Power to Expel”, The Table,
Vol. LIII, 1985, pp. 43‑50; Holtby, J., “The Legislature,
The Charter and Billy Joe MacLean”, Canadian Parliamentary Review,
Vol. 10, No. 1, Spring 1987, pp. 12‑4;
Heard, A., “The Expulsion and Disqualification of Legislators:
Parliamentary Privilege and the Charter of Rights”, Dalhousie Law Journal,
Vol. 18, Fall 1995, pp. 380‑407.
Maingot, 2nd ed., p. 211. See also pp. 212‑5.
Journals, April 15, 1874, pp. 64‑5; April 16, 1874,
pp. 67‑71; April 17, 1874, p. 74.
Journals, February 4, 1875, p. 42; February 22, 1875,
p. 111; February 24, 1875, pp. 118‑25.
Journals, May 11, 1891, pp. 55‑60; August 12, 1891,
p. 402; August 13, 1891, p. 407; August 18, 1891,
p. 414; August 19, 1891, pp. 417, 419; August 20, 1891,
p. 422; September 1, 1891, pp. 466‑7;
September 4, 1891, p. 477; September 16, 1891,
p. 512; September 24, 1891, pp. 527‑31;
September 29, 1891, p. 561.
Journals, January 30, 1947, pp. 4‑8. For further
information on the expulsion of Members, see Chapter 4, “The House of
Commons and Its Members”.
Maingot, 2nd ed., p. 190. See also p. 191.
Standing Order 108(1)(a).
During the Second Session (2007‑08) of the Thirty‑Ninth Parliament
(2006‑08), the Standing Committee on Access to Information, Privacy and
Ethics conducted hearings into the defamation settlement former Prime Minister
Brian Mulroney had received from the government in 1997 with respect to
allegations that he had received kickbacks connected to Air Canada’s purchase of Airbus planes in the 1980s. The Committee wished to receive testimony from a
witness who, while willing to attend, could not because he was being held in a
detention centre awaiting deportation to Germany. In order to facilitate the
witness’s attendance, the Committee presented a report to the House requesting
that the Speaker issue a warrant for his appearance. The House subsequently
adopted the report and the following recommendation: “That the Speaker issue
any necessary warrants for the appearance of Karlheinz Schreiber before the
Standing Committee on Access to Information, Privacy and Ethics, as soon as possible
and that he be available until discharged by the Committee” (Journals,
November 27, 2007, p. 219). See also Standing Committee on Access to
Information, Privacy and Ethics, Minutes of Proceedings and Evidence,
November 22, 2007, Meeting No. 3.
Lee, D., The Power of Parliamentary Houses to Send for Persons, Papers &
Records: A Sourcebook on the Law and Precedents of Parliamentary Subpoena
Powers for Canadian and other Houses, Toronto: University of Toronto Press Incorporated, 1999, pp. 1‑2.
See, for example, Journals, May 9, 1996, pp. 341‑2.
For further information on summoning witnesses, see Chapter 20, “Committees”.
With respect to the production of papers, Bourinot, 4th ed.,
states: “A document, of which it is proposed to order a copy, must be official
in its character and not a mere private letter or paper, and must relate to a
matter within the jurisdiction of parliament” (p. 253).
Journals, May 29, 1991, p. 95. In 1990, the Solicitor
General refused to provide the Standing Committee on Justice and the Solicitor
General with two reports, citing privacy issues. The Committee reported the
matter to the House (Journals, December 19, 1990,
p. 2508). Subsequently, a question of privilege was raised and although no
prima facie case of privilege was found (Debates,
February 28, 1991, pp. 17745‑6), the matter of the failure
of the Solicitor General to provide the reports was referred to the Standing
Committee on Privileges and Elections (Journals,
February 28, 1991, p. 2638; May 17, 1991, p. 42).
In its report to the House, the Standing Committee on Privileges and Elections
concluded that the Standing Committee on Justice and the Solicitor General had
been within its rights to insist on the production of the reports and
recommended that the House order the Solicitor General to comply with the
production order (Journals, May 29, 1991, pp. 92‑9).
The House subsequently adopted a motion to that effect with the proviso that
the reports be presented at an in camera meeting of the Standing
Committee on Justice and the Solicitor General (Journals, June 18, 1991,
See, for example, Standing Committee on Justice and the Solicitor General, Minutes
of Proceedings, Issue No. 56, December 4, 1990, p. 3;
Standing Committee on Agriculture and Agri‑Food, Minutes of
Proceedings, February 25, 2004, Meeting No. 5 and
April 21, 2004, Meeting No. 15.
See, for example, the Seventh Report of the Standing Committee on Justice and
the Solicitor General, presented to the House on December 19, 1990 (Journals,
p. 2508); Third Report of the Standing Committee on Agriculture and
Agri-Food, presented to the House on May 6, 2004 (Journals,
p. 388); Nineteenth Report of the Standing Committee on Human Resources
and Social Development, presented to the House on June 15, 2007 (Journals,
See, for example, Journals, June 18, 1991, pp. 216‑7.
See, for example, Journals, May 6, 2004, p. 388.
Journals, June 5, 1891, p. 205;
June 16, 1891, pp. 211‑2; August 27, 1891, p. 454; September 1, 1891,
Journals, May 6, 2004, p. 388. When two of the companies
continued to refuse to produce the financial statements requested, the
committee requested the further assistance of the House in compelling the
production of the documents. See the Fourth Report of the Standing Committee on
Agriculture and Agri-Food, presented to the House on May 13, 2004 (Journals,
p. 416). The House did not concur in the report (Debates,
May 13, 2004, pp. 3115‑6). For further information, see
Chapter 20, “Committees”.
 R.S. 1985, c. P‑1, ss. 10
to 13. See also Maingot, 2nd ed., pp. 191‑2. See also
the section in this chapter entitled “Privilege Since Confederation”.
A House lawyer made the following analogy in an appearance before the Standing
Committee on Public Accounts in 2007: “I’d like to give you a parallel between
this idea of deeming the obligation to speak the truth versus being sworn under
oath. That is being called to a court, civil or criminal, by means of a
subpoena, versus being called before a committee by means of an invitation. In
my mind, both have equal value. In other words, an invitation to appear before
a committee is as inherently binding as a subpoena before a court. In that
sense, every witness all the time has the obligation to speak the truth to a
committee” (Standing Committee on Public Accounts, Evidence,
February 7, 2007, Meeting No. 37).
Speaker Fraser stated in a 1987 ruling: “… a witness once summoned by a
parliamentary committee would be ill-advised to walk out because of an
unwillingness to be sworn in” (Debates, March 17, 1987,
Parliament of Canada Act, R.S. 1985, c. P‑1,
s. 12; Criminal
Code, R.S. 1985, c. C‑46,
ss. 132 and 136. No witness has ever been charged with perjury for lying
to a committee under oath. For further information, see the section in this
chapter entitled “Freedom of Speech”.
Ninth Report of the Standing Committee on Government Operations and Estimates,
presented to the House on November 4, 2003 (Journals,
p. 1225), par. 2.24. The Committee recommended that “parliamentary
committees consider placing witnesses under oath more often, when circumstances
warrant” (Recommendation 1). The House did not concur in the Report.
R.S. 1985, c. P‑1, ss. 7 to 9. The famous case of Stockdale
v. Hansard in the 1830s resulted in a decision by the British courts that
parliamentary privilege did not provide the authority to publish defamatory
material with impunity (Maingot, 2nd ed., pp. 281‑7).
The effects of this case have been addressed in Canada through the Parliament
of Canada Act (R.S. 1985, c. P‑1, s. 5).
At the same time, sections 7 through 9 grant statutory protection to any
person who has printed a publication by or under the authority of the Senate or
the House of Commons.
Pankiw, 2006 FC 1544; appeal dismissed 2007 FCA 386; application for
leave to appeal to the Supreme Court dismissed (SCC file 32501). For further
information, see the sections in this chapter entitled “Privilege Challenged in
the Courts” and “Limitations on Freedom of Speech”.