The classic definition of parliamentary
privilege is found in Erskine May’s Treatise on The Law, Privileges,
Proceedings and Usage of Parliament:
Parliamentary privilege is the sum of the
peculiar rights enjoyed by each House collectively … and by Members of each
House individually, without which they could not discharge their functions, and
which exceed those possessed by other bodies or individuals. Thus privilege,
though part of the law of the land, is to a certain extent an exemption from
the general law.
These “peculiar rights” can be divided into
two categories: those extended to Members individually, and those extended
to the House collectively. Each category can be further divided. The rights and
immunities accorded to Members individually are generally categorized under the
from arrest in civil actions;
from jury duty;
from being subpoenaed to attend court as a witness; and
from obstruction, interference, intimidation and molestation.
The rights and powers of the House as a
collectivity may be categorized as follows:
exclusive right to regulate its own internal affairs (including its debates,
proceedings and facilities);
power to discipline, that is, the right to punish persons guilty of breaches of
privilege or contempts, and the power to expel Members guilty of disgraceful
right to provide for its proper constitution, including the authority to
maintain the attendance and service of its Members;
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 privileges of Members of the House of
Commons provide the absolute immunity they require to perform their
parliamentary work while the collective or corporate rights of the House are
the necessary means by which the House effectively discharges its functions.
Privilege commences from the time of the Member’s official existence, which is
at the moment the deputy returning officer completes the return of the writ
with the name of the candidate who received the most votes in a general
election or a by‑election.
The House has the authority to assert
privilege where its ability has been obstructed in the execution of its
functions or where Members have been obstructed in the performance of their
duties. Members are not outside or above the law which governs all citizens of Canada. While some privileges seem to provide immunity from the application of certain
laws, parliamentary privilege forms part of the general law of Canada.
The privileges of the Commons are designed to safeguard the rights of each and
For example, the privilege of freedom of speech is secured to Members not for
their personal benefit, but to enable them to discharge their functions of
representing their constituents without fear of civil or criminal prosecution
for what might be said in the House and committees. When a constituency has
returned a candidate, it is the electors’ right that this chosen representative
should be protected from any kind of improper pressure, and particularly from
The distinctive mark of a privilege is its
ancillary character. The privileges of Parliament are rights, which are
“absolutely necessary for the due execution of its powers”. They are enjoyed by
individual Members because the House cannot perform its functions without
unimpeded use of the services of its Members; and by each House for the
protection of its Members and the vindication of its own authority and dignity.
Privilege essentially belongs to the House
as a whole; individual Members can only claim privilege insofar as any denial
of their rights, or threat made to them, would impede the functioning of the
House. In addition, individual Members cannot claim privilege or immunity on
matters that are unrelated to their functions in the House.
Any conduct which offends the authority or
dignity of the House, even though no breach of any specific privilege may have
been committed, is referred to as a contempt of the House. Contempt may be an
act or an omission. It does not have to actually obstruct or impede the House
or a Member; it merely has to have the tendency to produce such results.
What Parliament has asserted as the extent
of necessary privileges has varied over the centuries. Nevertheless,
certain basic principles relating to privilege have become established. Neither
House individually can extend its privileges, though either House can, formally
by resolution, decide not to claim or apply privileges it has hitherto claimed.
No one House of Parliament has a right to claim for itself new privileges; new
privileges can only be created or old privileges extended by an act of
Either House can apply its rights to new circumstances. And finally, each
House can individually adjudicate and punish breaches of its privileges.
May, 23rd ed., p. 75.
Maingot, 2nd ed., p. 15.
Maingot, 2nd ed., p. 155. While privilege commences on the
date of the execution of the return of the writ and continues until Parliament
is dissolved, some individual rights and immunities, such as the exemption from
being subpoenaed to attend court, commence 40 days before a session and extend
40 days after a session. If the period between dissolution (or prorogation) and
the commencement of the next session exceeds 80 days, there would be an interim
period where these immunities would not be available to Members.
Vaid, par. 29.3.
This point was forcefully made by Sir Barnett Cocks, Clerk of the House of
Commons of the United Kingdom, in a memorandum to the Select Committee on
Parliamentary Privilege (United Kingdom, House of Commons, Select Committee on
Parliamentary Privilege, Minutes of Evidence, November 23, 1966,
Select Committee on Parliamentary Privilege, Minutes of Evidence,
November 23, 1966, p. 1.
May, T.E., Erskine May’s Treatise on The Law, Privileges, Proceedings and
Usage of Parliament, 20th ed., edited by Sir C. Gordon, London:
Butterworths, 1983, pp. 70‑1.
Griffith, J.A.G. and Ryle, M., Parliament: Functions, Practice and Procedures,
2nd ed., edited by R. Blackburn and A. Kennon with Sir M. Wheeler-Booth,
London: Sweet & Maxwell, 2003, pp. 123‑5.
Vaid, par. 24.
With the possible exception of the relinquishment of its power to try
controverted elections, the Canadian House of Commons has never formally
renounced any of the basic rights and immunities it claims for itself and its
Members. See Bourinot, Sir J.G., Parliamentary Procedure and Practice in the
Dominion of Canada, 4th ed., edited by T.B. Flint, Toronto: Canada Law
Book Company, 1916, pp. 122‑7; Maingot, 2nd ed.,
pp. 187−90; Dominion Controverted Elections Act, 1874,
S.C. 1874, c. 10. For further information on controverted elections,
see Chapter 4, “The House of Commons and Its Members”. However, on a
number of occasions, the House of Commons has considered whether or not to
waive its privileges in particular circumstances. In 1891, the House of Commons
waived its privileges to allow proceedings in one of its committees to be used
to prosecute a witness who had appeared before it (Journals,
April 12, 1892, pp. 234‑5). Recently, the House of Commons
has refused to waive its privileges to allow committee transcripts to be used
in a public inquiry to cross-examine a witness for allegedly making
contradictory statements (Journals, November 18, 2004,
pp. 232‑3), nor would it allow its proceedings to be used as a basis
for disciplinary action against a Royal Canadian Mounted Police (RCMP) officer
for her testimony before a committee (Journals, June 15, 2007,
p. 1543). For further information, see the section in this chapter
entitled “Waiving the Privilege of Freedom of Speech”. In British practice, the
authors of May note that since the eighteenth century a number of
privileges have been surrendered or modified, including most recently Members’
exemption from jury service (May, 23rd ed., pp. 92‑4).
An example of the extension of privilege was the adoption by the British
Parliament of the Parliamentary Papers Act, 1840 and the enactment by
the Canadian Parliament of virtually the same provisions in 1868. The British
legislation followed the famous Stockdale v. Hansard case of 1837. The
Act of 1840 provided that the publication of reports, papers, votes or
proceedings of either House of Parliament by order was essential to the
functions and duties of Parliament and thus privileged. The same provisions
were adopted in Canada in 1868 as An Act to define the privileges,
immunities and powers of the Senate and House of Commons, and to give summary
protection to persons employed in the publication of Parliamentary Papers
(S.C. 1868, c. 23). This Act is now sections 7, 8 and 9 of the Parliament
of Canada Act (R.S. 1985, c. P‑1) and corresponds exactly
to sections 1, 2 and 3 of the Parliamentary Papers Act, 1840. For a
full discussion of the case and its consequences, see Maingot,
2nd ed., pp. 63‑75; May, 23rd ed., pp. 100‑2.
The advent of the broadcasting of the proceedings of the House illustrates such
an application. In the Donahoe case referred to later in this chapter, the Supreme
Court affirmed that the Nova Scotia House of Assembly, in exercising its
rights to control its internal proceedings and to exclude strangers from the
House and its precinct, could exclude television cameras from its galleries (New
Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly),
 1 S.C.R. 319).