The collective privileges of the House of
Commons and the individual privileges of its Members are not unlimited. They
are constrained by the limits put on them by the Constitution. The first limit
is found in section 18 of the Constitution Act, 1867 which provides
that Parliament may not confer on itself any greater privileges than those
enjoyed at the time by the House of Commons of the United Kingdom. The second
limit flows from the Preamble, which provides for a Westminster parliamentary
system, including privileges based on necessity.
It is the prerogative of the House to determine how it will exercise these
privileges and if it wants to insist on them or not. Given that the
privileges enjoyed by Parliament are part of the general and public law of Canada, the courts must judicially take notice of, interpret and defend these privileges as
they would any branch of law.
It was thus inevitable that the courts
would become involved in determining questions related to parliamentary
privilege. Since the effect of the assertion of privilege could result in
certain functions being shielded from review by the courts, the courts had to
balance their role to apply the law with the constitutional freedom of
Parliament to act independently and without outside interference.
In a 2003 ruling, Speaker Milliken
described the relationship between Parliament and the courts with respect to
parliamentary privilege as follows:
We have parliamentary privilege to ensure
that the other branches of government, the executive and the judicial, respect
the independence of the legislative branch of government, which is this House
and the other place. This independence cannot be sustained if either of the
other branches is able to define or reduce these privileges. … The privileges of
this House and its members are not unlimited, but they are nonetheless well
established as a matter of parliamentary law and practice in Canada today, and must be respected by the courts. Judges must look to Parliament for precedents on
privilege, not to rulings of their fellow judges since it is in Parliament
where privilege is defined and claimed.
In two cases, one in 1993 and one in 2005,
the Supreme Court of Canada established the legal and constitutional framework
for considering matters of parliamentary privilege. Since parliamentary
privileges are rooted in the Constitution, courts may determine the existence
and scope of a claimed privilege. However, recognizing that a finding of the
existence of a privilege provides immunity from judicial oversight, the courts
may not look at the exercise of any privilege or at any matter that falls
within privilege. Once the courts have determined the existence and scope of
the privilege, their role ceases. Matters that fall within parliamentary
privilege are for the House alone to decide.
The primary question asked by the courts is
whether the claimed privilege is necessary for the House of Commons and its
Members to carry out their parliamentary functions of deliberating, legislating
and holding the government to account, without interference from the executive
or the courts.
In determining its existence and scope, the courts will first establish whether
it can be demonstrated that the claimed privilege existed in Canada or the United Kingdom at the time of Confederation. If so, that ends the inquiry. If not, the
courts may still conclude that the claimed privilege exists if it can be
demonstrated by the House that such a privilege is necessary for Members to
perform their parliamentary functions.
The Supreme Court has indicated that the
following categories of privilege have been recognized to exist:
by the Houses of Parliament over debates or proceedings in Parliament,
including day-to-day procedure in the House of Commons;
power to exclude strangers from proceedings;
authority over Members;
authority over non Members who interfere with the discharge of parliamentary
of Members from being subpoenaed to attend court during a parliamentary
The determination of the existence of other
claimed privileges and the exact scope of all privileges will be determined by
the courts on a case-by-case basis.
One question that has been raised and dealt
with by the Supreme Court on three occasions
is the relationship of parliamentary privilege to other parts of the
Constitution, particularly the Canadian Charter of Rights and Freedoms.
Since parliamentary privilege and Charter rights are part of the
Constitution, each has equal value. The Court has consistently held that the Charter
does not override parliamentary privilege.
While the courts play a role in determining
if a privilege exists and is necessary for the legislative and deliberative
functions of the House, the courts or other institutions cannot interfere with
the exercise of the privilege or otherwise direct the affairs of the Commons.
Before the adoption of the Charter,
the question as to whether and how the constitutional rights of individuals
might affect the exercise of constitutional powers by various institutions was
not often raised before the courts. There was only one major judgement that
challenged Parliament’s privilege of freedom of speech prior to 1982. In 1971, an action was brought against the Prime Minister and the Minister of Energy, Mines and
Resources for announcements made in the House of Commons, a case known as Roman
Corporation Limited v. Hudson’s Bay Oil and Gas Co. In its ruling, the
Ontario High Court disavowed any jurisdiction over statements made in
Parliament based on Article 9 of the English Bill of Rights, 1689.
In 1993, the Supreme Court of Canada in New
Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly)
addressed the issue of whether and how the Charter applies to provincial
legislative assemblies and their proceedings, which had a direct impact on the
powers, privileges and immunities of the House of Commons. This case involved
the right of the Nova Scotia House of Assembly, in light of the Canadian Charter
of Rights and Freedoms, to exclude strangers from its proceedings, “a
stranger” being anyone who is not a Member or an official of the legislature.
The Canadian Broadcasting Corporation (CBC) claimed that its reporters had a
constitutional right to film the proceedings of the Nova Scotia House of
Assembly with their own cameras. The CBC applied to the Nova Scotia Supreme
Court for an order allowing it to film the proceedings based on section 2(b)
of the Charter which guarantees freedom of expression, including freedom
of the press. The Trial Division and the Court of Appeal both ruled in support
of the CBC. In overturning the Court of Appeal, the Supreme Court of Canada
upheld the absolute authority of the Houses of Parliament and of the
legislative assemblies to control their proceedings and reasserted the
independence of the different branches of government. It was determined that
the right to exclude “strangers” from the House, and thus to prohibit the use
of television cameras, was necessary to the functioning of the Assembly and
hence a privilege and therefore the courts could not interfere.
A landmark decision of the Supreme Court in
2005 clarified the scope of the House’s right to regulate its internal affairs,
and the applicability of statute law in that regard. The case involved an
employee of the House of Commons who had filed a complaint with the Canadian
Human Rights Commission following his dismissal. The House argued that the Canadian
Human Rights Act did not apply since the employee’s dismissal was a matter
protected under the House’s right to regulate its internal affairs, including
the hiring, management and dismissal of all staff. The Supreme Court ruled that
the concept of internal affairs did not extend much beyond the right of the
House to regulate its own proceedings. Since the employment of staff was beyond
the extent of the right, the Canadian Human Rights Act could apply.
While the House’s right to regulate its affairs was reaffirmed, the ruling
clarified that the Parliamentary Precinct, as a place, is not a statute-free
zone and that in matters outside of privileged activities Parliament is not
above the law.
Other cases have provided the courts with
an opportunity to reaffirm privilege in certain areas and to clarify its scope
in others. These court decisions have also helped to establish further the
bounds between the rights of Parliament and the responsibilities of the courts.
In 2003, a complaint was filed with the Canadian Human Rights Commission regarding a Member’s householder which contained
discriminatory comments about Aboriginals. The Member, Jim Pankiw
(Saskatoon–Humbolt), argued before the Canadian Human Rights Tribunal (CHRT)
that the comments were protected by his privilege of free speech. The CHRT,
however, ruled that the Canadian Human Rights Act did not exclude
Members, and particularly their householders, from the application of the Act
since householders were not part of a parliamentary proceeding. The decision was
appealed to the Federal Court which upheld the decision of the CHRT in 2006.
The Federal Court specifically determined that communications to constituents
are not a proceeding in Parliament nor do they constitute parliamentary papers,
and thus are not protected by parliamentary privilege.
In 1998, a private citizen brought an action against the political parties represented in the House
of Commons, as well as against a number of Members, claiming that his right to
freedom of speech had been violated when the House adopted a motion preventing him
from holding a press conference in the Press Gallery’s conference room in the
Centre Block of the Parliament Buildings. On January 22, 1999, the Ontario
Court (General Division) dismissed the action, finding, among other reasons,
that the House of Commons was only exercising its parliamentary privilege in
restricting access to the precinct of the House of Commons and that it was not prohibiting
the defendant from speaking.
Similarly, the courts have held that they
cannot review the refusal to allow a person denied membership in the Press
Gallery access to certain facilities within the precinct reserved for the press
since the question of access to the Parliamentary Precinct falls within each
House’s parliamentary privileges, specifically the right to exclude strangers.
In 2006, the Federal Court dismissed an
action brought against the House of Commons by a witness who had appeared
before one of its committees. The witness claimed that his language rights
under the Official Languages Act, which includes the House of Commons as
an institution to which that Act applies, had been violated when the
committee refused to distribute his English-only submission before it was
Noting that the witness’s right to speak in the official language of his choice
before the committee had been respected, the Federal Court determined that his
language rights had not been violated. Moreover, the Court affirmed that the
House’s right to control its own internal proceedings extended to internal
committee procedures. The Court concluded that since the House’s right to
regulate its internal proceedings had been clearly established in other court
judgements, the exercise of this privilege was immune from review by the Court.
R.S. 1985, Appendix II, No. 5.
As was noted in New Brunswick Broadcasting Co., “courts may determine if
the privilege claimed is necessary to the capacity of the legislature to function,
but have no power to review the rightness or wrongness of a particular decision
made pursuant to the privilege” (pp. 384‑5).
See also Zündel v. Boudria, et al., (1999), 127 O.A.C. 251,
Parliament of Canada Act, R.S. 1985, c. P‑1, s. 5.
See also Vaid, par. 29.3. Vaid, par. 47 states:
“The distinction between defining the scope of a privilege, which is the
function of the courts, and judging the appropriateness of its exercise, which
is a matter for the legislative assembly, may sometimes be difficult to draw in
practice …”. See also par. 53: “The onus lies on the appellants to
establish that the category and scope of privilege they claim do not exceed
those that at the passing of [the Parliament of Canada] Act [were] held,
enjoyed, and exercised by the Commons House of Parliament of the United Kingdom
… and by the members thereof”.
Debates, May 26, 2003, p. 6415.
New Brunswick Broadcasting Co. and Vaid.
Vaid, par. 40.
Vaid, par. 29.10.
New Brunswick Broadcasting Co.; Harvey v. New Brunswick (Attorney General),
 2 S.C.R. 876; and Vaid.
Constitution Act, 1982, R.S. 1985, Appendix II, No. 44,
Vaid, par. 33. See also New Brunswick Broadcasting Co.,
in particular pp. 319‑331; Harvey, in particular pp. 2‑6.
Vaid, par. 20 and 47 to 49. Members have objected on
occasion to what they considered unfair interference by the judiciary. For
example, on February 3, 1998, a Member raised a question of privilege
concerning remarks made by Justice Marcel Joyal of the Federal Court. During a
court proceeding, Justice Joyal had criticized the behaviour of Members during one
Question Period, when Members had cheered and applauded the announcement of the
dismissal of the Chairman of the Canadian Labour Relations Board by the Minister
of Labour. (Justice Joyal had compared them to the crowds around the guillotine
during the French Revolution.) The Chairman had initiated court proceedings to
prevent his dismissal, and it was during these proceedings that Justice Joyal
had made his comments. In a statement on February 11, 1998, Speaker
Parent noted that there is a necessary constitutional divide between the
legislative and judicial branches. He also noted that the practice of the House
is to treat as unparliamentary and a breach of order any reference to a judge
or court which is a personal attack or censure. He went on to state that the
House of Commons deserved at least the same respect from the courts. As the
Clerk of the House had received correspondence from the Chairman of the Judicial
Conduct Committee of the Canadian Judicial Council advising that Justice
Joyal’s remarks were being investigated, the Speaker decided to await the
outcome of the review before taking further action on the question of privilege
(Debates, February 11, 1998, pp. 3737‑8). On
April 21, 1998, the Speaker tabled correspondence and documentation
from the Judicial Council. The Judicial Conduct Committee had found that
Justice Joyal’s comments were inappropriate and outside the sphere of proper
judicial expression. It also noted that Justice Joyal had acknowledged publicly
the inappropriateness of his remarks. The Committee concluded that the Judge’s
conduct did not warrant a formal investigation. Speaker Parent stated that with
the tabling of these documents he considered the matter closed (Journals,
April 21, 1998, p. 682, Debates, p. 5910). See also
Marleau, R., “Relationship Between Parliament and the Courts in Canada: The Joyal Affair,” The Table, Vol. 66, 1998, pp. 15‑21.
 O.R. 418; appeals dismissed  1 O.R. 444 and  S.C.R. 820.
Maingot, 2nd ed., pp. 29‑31. Speakers have always urged
Members not to abuse their privilege of freedom of speech in light of the
damage that can result through the wide dissemination of their remarks through
the official published reports of the House and the television broadcasts of
House proceedings. See the rulings of Speaker Fraser, Debates,
December 3, 1991, p. 5681; and of Speaker Parent, Debates,
September 30, 1994, p. 6371. See also Debates,
April 1, 1998, p. 5653; May 11, 2005, pp. 5933‑4.
Maingot, 2nd ed., p. 306. As Maingot notes, the
adoption of the Canadian Charter of Rights and Freedoms “ushered in a
flood of constitutional litigation, gave Canadian courts a greater degree of
superintendence over government, and dramatically changed the form and forum of
politics. It was thus inevitable that the Canadian legislative assemblies and
Houses of Parliament would become implicated in the Charter” (2nd ed., p. 303).
New Brunswick Broadcasting Co. See also Davidson, D., “Parliamentary
Privilege and Freedom of the Press: A Comment on Donahoe v. Canadian
Broadcasting Corporation (1993)”, Canadian Parliamentary Review,
Vol. 16, No. 2, Summer 1993, pp. 10‑2, for a summary of the
Supreme Court decision.
Vaid, in particular, par. 29, 37 to 40, 46 to 49, 64, 76 and 79 to
Dreaver et al. v. Pankiw, 2005 CHRT 28.
Pankiw v. Canada (Human Rights Commission), 2006 FC 1544, in particular par. 113 and 114; appeal dismissed 2007 FCA 386; application for leave
to appeal to the Supreme Court dismissed (SCC file 32501).
Zündel v. Liberal Party of Canada et al., Reasons for Decision, Ontario Court (General Division), Court File No. 98‑CV‑7845,
January 22, 1999. Mr. Zündel is a noted Holocaust denier. Justice
Chadwick stated in the decision: “Although there is no reference to the reason
behind the decision, it is obvious it was to preserve the dignity and integrity
of Parliament” (p. 15).
Gauthier v. Canada (Speaker of House of Commons), (1994), 25 C.R.R. (2d) 286; Gauthier v. Canada (Speaker of the House of Commons), 2004 FCA 27; Gauthier
v. Canada (House of Commons), 2006 FC 596.
The committee had authorized the clerk of the committee to distribute documents
from witnesses only if they existed in both official languages.
Knopf v. Canada (House of Commons), 2006 FC 808, appeal
dismissed 2007 FCA 308; leave to appeal to the Supreme Court dismissed March
20, 2008 (SCC file 32416).