Parliamentary privileges were first claimed
centuries ago when the English House of Commons was struggling to establish a
distinct role for itself within Parliament. In the earliest days, Parliament
functioned more as a court than as a legislature, and the initial claims to
some of these privileges were originally made in this context. These privileges were found to be necessary to protect the House
and its Members, not from the people, but from the power and interference of
the King and the House of Lords. Over time, as the House of Commons gained
stature and power as a deliberative assembly, these privileges were established
as part of the common law of the land.
The House of Commons in Canada has not had to challenge the Crown, its executive, or the Upper House in the same manner as
the British House of Commons. The privileges of the British House of Commons
were formally made applicable to the Canadian Parliament at the time of
Confederation by the Constitution Act, 1867 and were articulated in a
statute now known as the Parliament of Canada Act.
Nonetheless, the privileges enjoyed by the House and its Members are of the
utmost importance; they are in fact vital to the proper functioning of
Parliament. This is as true now as it was centuries ago when the English House
of Commons first fought to secure these privileges and rights.
Centuries ago, the British House of Commons
began its struggle to win its basic rights and immunities from the King. The earliest cases go back to the fourteenth and fifteenth
centuries when several Members and Speakers were imprisoned by the King who
took offence to their conduct in Parliament, despite the claims of the House
that these arrests were contrary to its liberties. In the Tudor and early
Stuart periods, though Parliament was sometimes unable to resist the stronger will
of the Sovereign, the conviction continued to be expressed that Parliament,
including the House of Commons, was entitled to certain rights. Elected Speaker
of the House of Commons in 1523, Sir Thomas More was among the first Speakers
to petition the King to seek the recognition of certain privileges for the
House. By the end of the sixteenth century, the Speaker’s petition to the
King had become a fixed practice.
Despite these early petitions of the
Speaker, the King was not above informing the Commons that their privileges,
particularly freedom of speech, existed by his sufferance. James I did this in 1621. In protest, the Commons countered:
[E]very Member of the House of Commons hath
and of right ought to have freedom of speech … and … like freedom from all
impeachment, imprisonment and molestation (other than by censure of the House
itself) for or concerning any speaking, reasoning or declaring of any matter or
matters touching the Parliament or parliament business.
In rebuke, James I ordered that the Journals
of the House be sent to him; he tore out the offending page of protest and then
summarily dissolved Parliament.
Nor was privilege able to prevent the
detention or arrest of Members at the order of the Crown. On several occasions
in the early seventeenth century, Members were imprisoned without trial while
the House was not sitting or after the dissolution of Parliament. In 1626,
Charles I arrested two Members of the House while it was in session and, in
1629, judgements were rendered against several Members for sedition. These
outrages by the Crown were denounced after the Civil War and in 1667 both
Houses agreed that the judgement against the arrested Members had been illegal
and contrary to the privileges of Parliament.
In 1689, the implementation of the Bill
of Rights confirmed once and for all the basic privilege of Parliament,
freedom of speech. Article 9 states “that the freedom of speech and
debates or proceedings in Parliament ought not to be impeached or questioned in
any court or place out of Parliament”. Free speech in the House was now finally established and protected
from interference either from the Crown or the courts.
In the late seventeenth century and the
first half of the eighteenth century, some claims of the House as to what
constituted privilege went too far. The privilege of freedom from arrest in
civil matters was sometimes applied not only to Members themselves, but also to
their servants. In addition, Members sought to extend their privilege from
hindrance or molestation to their property, claiming a breach of privilege in
instances of trespassing and poaching. Such practices were eventually curtailed
by statute because they clearly had become a serious obstruction to the
ordinary course of justice. Thus, privilege came to be recognized as only that which was
absolutely necessary for the House to function effectively and for the Members
to carry out their responsibilities as Members.
In the midst of their occasional excesses,
the House of Lords and the House of Commons both acknowledged that a balance
had to be maintained between the need to protect the essential privileges of
Parliament and, at the same time, to avoid any risk that would undermine the
interests of the nation. In this connection, it was agreed in 1704 that neither
House of Parliament had any power, by any vote or declaration, to create for
themselves any new privileges not warranted by the known laws and customs of
Parliament. Since then, neither House alone has ever sought to lay claim to any
new privilege beyond those petitioned for by Speakers or already established by
precedent and law.
The nineteenth century witnessed numerous
cases of privilege, which helped to determine the bounds between the rights of
Parliament and the responsibility of the courts.
Perhaps the most famous of the court cases was Stockdale v. Hansard. In 1836, a publisher, John Joseph Stockdale, sued Hansard, the printer for the House of
Commons, for libel on account of a report published by order of the House. Despite numerous resolutions of the House protesting the court
proceedings and the committal to prison of Stockdale by the House, the courts
refused to acknowledge the claims of the House because it had not been proven
that the claimed privilege existed:
Lord Denman denied … that the lex
parliamenti [the Law of Parliament] was a separate law, unknown to the judges
of the common law courts. Either House considered individually was only a part
of the High Court of Parliament, and neither could bring an issue within its
exclusive jurisdiction simply by declaring it to be a matter of privilege. Any
other proposition was ‘abhorrent to the first principles of the constitution’.
In the end, the situation was partially
resolved by the enactment of the Parliamentary Papers Act of 1840, which
gave statutory protection to papers published by order of either House.
The late eighteenth and nineteenth
centuries also saw, for the first time, the systematic study of the history of
privilege and contempt with the publication of several manuals on parliamentary
procedures. The culmination of these efforts to understand and elucidate better
the constitutional history of Parliament was achieved in 1946 with the
publication of the 14th edition of May.
This edition presented a thorough and elaborate examination of parliamentary
privilege based on an exhaustive examination of the Journals and the
principles of the law of Parliament. It also cited instances of misconduct of strangers or witnesses,
disobedience to the rules or orders of the House or committees, attempts at
intimidation or bribery and molestation of Members or other Officers of the
House as cases that more properly involve a contempt of Parliament rather than
an explicit breach of an established privilege.
The British House of Commons now takes a
more narrowly defined view of privilege than was formerly the case, with the
emphasis being placed on parliamentary proceedings. The change became apparent
in 1967 when the Select Committee on Parliamentary Privilege accepted the need
for the radical reform of the law, practice and procedure relating to privilege
and especially contempt, agreeing that they required simplification and
clarification and to be brought into harmony with contemporary thought. The
Committee went further to express the conviction that the recognized rights and
immunities of the House “will and must be enforced by the courts as part of the
law of the land”. While the House took note of the Committee’s report, it was never
adopted. In 1977, the Committee of Privileges re-examined the meaning of
privilege and contempt, and the general thrust and conclusions of the 1967
report were reiterated in its report, later adopted by the House. The Committee
recommended that the application of privilege be limited to cases of clear necessity
in order to protect the House, its Members and its officers from being
obstructed or interfered with in the performance of their functions. Twenty years later, a joint committee of the British Parliament was
charged with examining parliamentary privilege. The Joint Committee on
Parliamentary Privilege made a number of recommendations calling for the
codification of various matters of privilege in statutory law. Although the report was debated in the Commons on one occasion, it
was never adopted and no legislation has yet resulted from the recommendations.
From the establishment in 1758 of the first
legislative assembly in Nova Scotia, the common law accorded the necessary
powers to the legislature and its Members to perform their legislative work. As
Maingot notes: “Members had freedom of speech in debate and the right of
regulating and ordering their proceedings, and were protected from being
arrested in connection with civil cases, because the legislature had first call
on their services and attendance”. As to the power of an assembly in the colonies to punish and
specifically imprison for contempt, the situation was not at all clear. In effect, the rights enjoyed by the legislative assemblies in the
pre‑Confederation period were quite limited.
However, as early as 1758, the House of Assembly of Nova Scotia had an
individual arrested and briefly confined because of threats made against a
member of the Assembly.
In Upper and Lower Canada, the Constitutional
Act, 1791, adopted by the British Parliament, was silent on the privileges of
the legislatures, although by 1801 the Speaker of the Legislative Assembly in
Upper Canada claimed “by the name of the Assembly, the freedom of speech and
generally all the like privileges and liberties as are enjoyed by the Commons
of Great Britain our Mother Country”. The Assembly of Upper Canada proceeded to fight for and assert many
of the same privileges, such as freedom from arrest while sitting and freedom
from jury duty, claimed by the British Commons. The Assembly also claimed the
power to send for and question witnesses and to punish any individual who
refused to appear or answer questions, using its power of imprisonment to
ensure obedience of its orders. Although challenged on occasion, the Assembly
was successful in enforcing its privileges. In
the period prior to responsible government, the Assembly in Upper Canada
guarded its reputation by punishing libels against it in the newspapers and
also fought for the right to initiate money bills, that is, bills for
appropriations and taxation. In general, the Assembly of Upper Canada was satisfied that it
could discharge its functions with the privileges it had.
In the same period, the Assembly of Lower
Canada also asserted both individual and corporate privileges―freedom
from arrest and freedom from the obligation to appear in court with respect to
civil suits brought against Members, and the right of the Assembly to punish
for contempt, no matter the offender. The Assembly was not afraid to put forward its claims of privilege
against the Crown. In 1820, it blocked the conduct of business at the opening
of a new Parliament because of a dispute over the return of election writs and
again in 1835 over comments made by the Governor about the privileges of the
With the Union Act, 1840 which created the Province of Canada out of Upper and Lower Canada, and especially following the achievement of responsible government, issues of
privilege were raised less frequently and were not as serious. This can be
attributed to the fact that responsible government acknowledged the supremacy
of the Assembly. The Assembly no longer felt threatened by outside bodies and
thus was less sensitive to criticism. Members were less likely to be upset when
their rights were unintentionally interfered with, and most infractions of
privilege were committed by inadvertence.
“With respect to individual claims, the Assembly became more careful not to use
privilege to gain rights for its members over and above the rights belonging to
As had been the case in the old colonial
assemblies, the power to commit or imprison for contempt claimed by the
Assembly of the Province of Canada remained an issue. It was held in 1842 that
colonial legislatures had no power to commit for contempt outside the assembly,
and in 1866 it was held that they had no power to commit to prison for contempt
even when committed in the assembly.
The privileges of the British House of
Commons were made applicable to Canada by the Constitution Act, 1867.
The Preamble of that Act, which states that Canada has a “Constitution similar
in Principle to that of the United Kingdom”, entrenched a Westminster-style
parliamentary system, including the historical privileges necessary for such a
system to function. As well, section 18 of the Act granted the Parliament
of Canada the right to define its privileges by statute as long as these
privileges never exceeded those enjoyed by the British House of Commons at the
time of Confederation:
The Privileges, Immunities, and Powers to be
held, enjoyed, and exercised by the Senate and by the House of Commons and by
the Members thereof respectively shall be such as are from Time to Time defined
by Act of the Parliament of Canada, but so that the same shall never exceed
those at the passing of this Act held, enjoyed, and exercised by the Commons
House of Parliament of the United Kingdom of Great Britain and Ireland and by the Members thereof.
Within three weeks of the opening of the
First Session (1867‑68) of the First Parliament (1867‑72), the
Senate and the House passed An Act to define the privileges, immunities and
powers of the Senate and the House of Commons, and to give summary protection
to persons employed in the publication of Parliamentary Papers,
which claimed for the Parliament of Canada the privileges, immunities and
powers of the British House of Commons. This statute also provided that
parliamentary papers were protected by privilege and protected publishers of
the authorized parliamentary papers and records against civil or criminal
In 1868, Parliament adopted legislation
granting the Senate the power to examine witnesses at the Bar on oath and to
allow the select committees on private bills of both Houses to examine
witnesses on oath.
In 1873, the power to examine witnesses on oath was extended to all House and
These two pieces of legislation led to debate in the Senate as to whether they
were contrary to the terms of section 18 of the Constitution Act
because the British Parliament only acquired the right to examine witnesses on
oath in 1871. It is speculated that the 1868 statute was inadvertently granted
Royal Assent; however, in the case of the second bill, when Prime Minister
Sir John A. Macdonald expressed his misgivings, the Oaths Act,
1873 was disallowed by the Crown who reported that the bill was ultra
Subsequently, at the request of the Canadian government, section 18 of the Constitution
Act, 1867 was repealed and replaced with the following:
The privileges, immunities, and powers to be
held, enjoyed, and exercised by the Senate and by the House of Commons, and by
the Members thereof respectively, shall be such as are from time to time
defined by Act of the Parliament of Canada, but so that any Act of the
Parliament of Canada defining such privileges, immunities, and powers shall not
confer any privileges, immunities, or powers exceeding those at the passing of
such Act held, enjoyed, and exercised by the Commons House of Parliament of the
United Kingdom of Great Britain and Ireland, and by the Members thereof.
This amended section provided that the
Canadian Parliament may adopt legislation claiming new privileges as long as
these privileges are also held by the British House of Commons.
In the early years of Confederation, most
of the matters raised in the House with respect to privilege concerned the
right of a Member to a seat in the House;
the interference of officials in elections;
the independence of Parliament;
the abuse of a Member’s position for monetary gain; and reflections or
libels in books and newspapers about the House or its Members. After Parliament
adopted electoral legislation dealing with such matters as dual representation,
controverted elections, and corrupt electoral practices, the number of such
The manner in which questions of privilege
were raised following Confederation was vastly different from today’s
procedure. Dozens of cases between 1867 and 1913 followed the same, simple
course. A Member would rise, explain the matter of privilege and conclude with
a motion calling on the House to take some action—usually that someone be
called to the Bar or that the matter be referred to the Standing Committee on
Privileges and Elections for study and report. At that point, without any intervention
on the part of the Speaker, debate would begin on the motion, amendments might
be moved and, finally, the House would come to a decision on the matter.
The House would then take whatever further action was required by the motion.
Perhaps because of the immediate recognition given to Members rising on
“questions of privilege”, it was also common throughout this time for Members
to take the floor ostensibly to raise such a question, but in fact to make
personal explanations. Members used the claim of a breach of privilege as a
ready means to be recognized by the Speaker and to gain the floor in order to
state a complaint or grievance of whatever kind. Here, too, they met
with little interference from Chair Occupants.
From 1913 to 1958, while the number of
“questions of privilege” blossomed for such purposes as the recognition of
school groups in the gallery, congratulatory messages, complaints, grievances
and a plethora of procedural matters, in addition to the continued “personal
the number of legitimate matters of privilege dealt with by the House declined
dramatically with only three being referred to the Standing Committee on
Privileges and Elections and one to a special committee. Modern practice in
matters of privilege first took root following the publication of the fourth
edition of Beauchesne’s Rules and Forms of the House of Commons of
Canada in 1958 which included a new section, taken from the 14th edition of
May, published in 1946, on the manner of raising questions of privilege.
This description of the British procedure soon became a handy reference seized
upon by successive Speakers, beginning with Speaker Michener, as a way to
curtail spurious interventions by Members on non privilege matters. It
introduced two guiding conditions: whether on the first impression (prima
facie) the matter raised appeared to be a matter of privilege, and whether
the matter was raised as soon as it could have been. Both were to be determined
by the Speaker before a debate could proceed.
Nonetheless, on occasion the House adopted motions on matters of privilege
without a ruling of the Speaker.
The new citation in Beauchesne
enabled successive Speakers to keep a tighter rein on questions of privilege,
even though practice required that the interventions at least be heard, however
briefly, before being ruled on. The prima facie condition was invoked
most often, although a number of other cases were refused because they were not
raised at the proper time.
Several cases arose which permitted the Speaker to find that debate on a matter
of privilege should go forward, with the result that a body of precedents began
to take shape. For example, a 1959 case (known as the Pallett case) led
Speaker Michener to declare that a proposed motion in which the conduct of
a Member was alluded to was not, prima facie, a matter of privilege and
could not be given precedence because the proposed motion was not a specific
complaint against the Member,
a ruling frequently cited in subsequent years.
In 1964, Deputy Speaker Lamoureux ruled that questions of privilege
could not be raised during proceedings on the adjournment motion,
while in 1975 the House adopted a report which recommended that such matters
should not be taken up during Question Period.
Divisions were also judged an inopportune time for raising questions of
privilege on matters not related to the business then before the House.
Finally, a number of Speakers, in deciding that a prima facie case did
not exist, suggested to the Members concerned that the matter might instead be
brought forward through the normal procedure, that is, as a substantive motion
after proper notice.
Since 1958, there have been dozens of prima
facie cases of privilege, the majority of them dealing with allegations of
misconduct by Members. Other matters found to be prima facie include the
inability of Members to access the Parliamentary Precinct and the disclosure of
in camera committee proceedings and draft reports. These cases are
discussed in greater detail later in this chapter. See also Appendix 15, “Prima
Facie Cases of Privilege Since 1958”.
On only three occasions has a committee of
the House been specifically charged with a direct order of reference to examine
the rights, immunities and privileges of the House. The first of these studies
took place in the Thirtieth Parliament (1974‑79) when the Special Committee on Rights and Immunities of Members
was created under the chairmanship of Speaker James Jerome. The Special
Committee presented two reports, one on privilege in the First Session (1974‑76)
and the other on the sub judice (before the court) convention in the
Second Session (1976‑77).
In its report on privilege, the Special Committee stated that the purpose of
privilege was “to allow Members of the House of Commons to carry out their
duties as representatives of the electorate without undue interference”.
Echoing the recommendation of the 1967 British Select Committee on
Parliamentary Privilege, it also found that the term “privilege” was likely to
give rise to misconceptions on the part of the public and so preferred the use
of the term “rights and immunities”. The Committee also stated that a question
of privilege is a serious matter, when validly raised, but was frequently
resorted to when no real question of privilege was actually involved. It
suggested that another mechanism might be devised to enable Members to
challenge reports or to correct statements. The Committee further pointed out
that when matters of privilege are raised, the Member involved cannot devote
full attention to his or her parliamentary duties until the case is disposed
of. Therefore, it was considered desirable that cases of privilege be dealt
with as swiftly as possible. The Committee also reported on the advisability of
arriving at precise definitions for the terms “Parliamentary Precinct”
(particularly taking into account the fact that parliamentary committees
frequently meet outside of Ottawa), and “proceedings in Parliament”. In
addition, it proposed to examine the premature publication of confidential
reports of parliamentary committees and the sub judice convention. In
the First Session, the Special Committee did not pursue these matters further.
In the succeeding session, the Committee focused on the sub judice
The second committee charged with the
examination of the rights, immunities and privileges of the House was the
Standing Committee on Elections, Privileges, Procedure and Private Members’
Business in the Second Session (1989‑91) of the Thirty‑Fourth Parliament (1988‑93).
While the Committee did consider the matter,
no report was presented to the House.
In December 1989, a third committee
was created to review the Parliament of Canada Act regarding the powers,
duties and obligations of Members, and the authority, responsibilities and
jurisdiction of the Board of Internal Economy.
While this Special Committee focused its attention on the provisions of the Act
and, in particular, on those provisions governing the expenditure of public
funds under the authority of the Board of Internal Economy, it also explored
the role and responsibilities of Members of Parliament and the nature of
financial controls and accountability, among other matters. In its Second
Report, the Committee stated that it accepted and endorsed the principle that
Members of the House of Commons were not above the law: “Laws must be applied
equally to all. Members are not entitled to special treatment, but they deserve
assurance that their rights will not be jeopardized or sacrificed. It must be
recognized that Members and their activities will be subject to intense public
The Committee recommended that the House reaffirm a number of principles which
applied to its Members, one of which was “that a Member has the constitutional
rights and immunities applicable to that office and independence in the
performance of the activities and functions of that office free from
interference or intimidation”.
In 2004, the Standing Committee on
Procedure and House Affairs received an order of reference, arising out of a prima
facie question of privilege, to consider the question of the immunity of
Members of the House from being compelled to attend court during, immediately
before and immediately after a session of Parliament. In its Eighth
Report to the House, the Committee recommended that the House of Commons
consider the appointment of a committee to undertake a comprehensive review of
The time is perhaps appropriate for the
Canadian Parliament to undertake a systematic review of its privileges and
those of its members. Not only has such a review not been conducted in many
years, but the introduction of the Canadian Charter of Rights and Freedoms and parliamentary
developments, such as the broadcasting of proceedings, have inexorably affected
the environment within which we operate.
The Thirty-Seventh Parliament (2001‑04)
was dissolved before the Report was adopted. No comprehensive reviews of the
rights and immunities of Members of Parliament have taken place in the House in
This struggle is described in McIlwain, C.H., The High Court of Parliament
and its Supremacy: an Historical Essay on the Boundaries Between Legislation
and Adjudication in England, Hamden, Connecticut: Archon Books, 1962
(reprint of 1910 ed.); and in Wittke, C., “The History of English Parliamentary
Privilege”, The Ohio State University Bulletin, Vol. 26,
No. 2, August 30, 1921.
Vaid, par. 29.3.
The parliamentary privileges of the House of Commons have two distinct sources
in the Constitution Act, 1867 (R.S. 1985, Appendix II,
No. 5). The Preamble states that Canada shall have a constitution similar
in principle to that of the United Kingdom, meaning a Westminster‑style
Parliament with all the necessary privileges that are attached to that system.
In addition, section 18 provides that the House of Commons and the Senate can
legislate privileges so long as these privileges do not exceed those of the
House of Commons in the United Kingdom. This has been done by claiming the
privileges of that House (Parliament of Canada Act, R.S. 1985,
c. P‑1, s. 4). See also Vaid, par. 35. When the newly‑elected
Speaker is presented to the Governor General prior to the Speech from the
Throne, the Speaker claims on behalf of the House “… all their undoubted
rights and privileges, especially that they may have freedom of speech in their
debates, access to Your Excellency’s person at all seasonable times, and that
their proceedings may receive from Your Excellency the most favourable
construction”. See, for example, Debates of the Senate, November 19, 2008,
p. 3. See also Chapter 8, “The Parliamentary Cycle”.
For further information, see Maitland, F.W., The Constitutional History of
England, Cambridge: Cambridge University Press, 1908; and Pollard,
A.F., The Evolution of Parliament, 2nd ed., rev.,
London: Longmans, Green and Co., Ltd., 1926.
It has been argued that Sir Thomas More did not consider his petition a
petition of right, as free speech was not yet a formal privilege. “Parliament
is the king’s court; he may be displeased with what members say, and as
discipline is his to maintain, he may punish the too bold or too rash for their
speeches … More wants liberty of speech, whereas his predecessors wished to
avoid punishment, thereby tacitly renouncing the liberty which More claims”
(Neale, J.E., “The Commons’ Privilege of Free Speech in Parliament”, Historical
Studies of the English Parliament, Vol. 2, 1399‑1603,
Cambridge: Cambridge University Press, 1970, pp. 157‑8).
This ceremony is also part of Canadian practice. See, for example, Debates
of the Senate, November 19, 2008, p. 3.
May, 23rd ed., p. 81.
Davies, G., The Oxford History of England: The Early Stuarts,
1603−1660, Oxford: Clarendon Press, 1938 (reprint of 1937 ed.),
May, 23rd ed., pp. 81‑2.
May, 23rd ed., p. 82.
Maitland, pp. 322‑3; May, 23rd ed., pp. 85‑6.
See also Parliamentary Privileges Act, 1770 (U.K.).
May, 23rd ed., p. 93.
May, 23rd ed., p. 93.
May, 23rd ed., pp. 183‑8.
May, 23rd ed., pp. 184‑7. For the importance of this
case in Canada, see Maingot, 2nd ed., pp. 63‑74.
May, 23rd ed., p. 186.
Hatsell, J., Precedents of Proceedings in the House of Commons, 4 Vols.,
South Hackensack, New Jersey: Rothman Reprints Inc., 1971 (reprint of 4th ed.,
1818); Ferrall, S.A., An Exposition of the Law of Parliament, as it
Relates to the Power and Privileges of the Commons’ House, London: S. Sweet,
1837; and May, T.E., A Treatise Upon the Law, Privileges, Proceedings and
Usage of Parliament, South Hackensack, New Jersey: Rothman Reprints Inc.,
1971 (reprint of 1st ed., 1844), now in its 23rd edition.
May, T.E., A Treatise on the Law, Privileges, Proceedings and Usage of
Parliament, 14th ed., edited by Sir G. Campion, London: Buttersworths
& Co. (Publishers), Ltd., 1946.
This edition concluded that any “act or omission which obstructs or impedes either
House of Parliament in the performance of its functions, or which obstructs or
impedes any member or officer of such House in the discharge of his duty, or
which has a tendency, directly or indirectly, to produce such results may be
treated as a contempt even though there is no precedent of the offence” (May,
14th ed., p. 108).
United Kingdom, House of Commons, Report from the Select Committee on
Parliamentary Privilege, Together with the Proceedings of the Committee,
Minutes of Evidence Taken Before the Select Committee on Parliamentary
Privilege in Session 1966-67, and Appendices, December 1, 1967
(reprinted 1971), pp. xiii‑xiv, par. 38. The Committee
recommended that legislation be introduced to extend and clarify the scope of
privilege. The Committee also proposed a number of significant reforms with
respect to the consideration of privilege complaints and other changes to bring
the House’s formal rules into line with the practice of nearly 200 years. See
the “Summary of Principal Recommendations”, pp. xlix‑li,
May, 23rd ed., p. 93.
United Kingdom, Joint Committee on Parliamentary Privilege, Report, Volume
I—Report and Proceedings of the Committee, www.parliament.uk, March 30, 1999, “Summary of
Recommendations”, pp. 1‑7. In particular, the Joint Committee
proposed that Parliament discard any rights and immunities no longer deemed
necessary for it to carry out its functions. The Committee recommended that
“place out of Parliament” and “proceedings in Parliament” be defined in statute
and that Members of both Houses be included within the scope of forthcoming
legislation on corruption. It called for the codification in statute of
contempt of Parliament, for the abolition of Parliament’s power to imprison for
contempt and for the transfer of Parliament’s penal powers over non Members to
the courts. In addition, the Committee recommended the termination of Members’
exemption from attendance in court as witnesses, the abolition of Members’
freedom from arrest in civil cases, and the replacement of the Parliamentary
Papers Act, 1840 by a modern statute. Finally, it recommended that a
Parliamentary Privileges Act be passed incorporating all the proposed changes
in the law and codifying parliamentary privilege as a whole.
May, 23rd ed., p. 94. In 1987, the Australian Parliament passed
legislation declaring, clarifying and substantially changing its law of
parliamentary privilege. Finding that the courts were severely restricting its
freedom of speech, the Australian Parliament enacted statutory remedies to
protect its proceedings. The Australian Parliamentary Privileges Act, 1987
provides definitions for a number of concepts, including contempt. For further
information, see House of Representatives Practice, 5th ed., edited
by I.C. Harris, Canberra: Department of the House of Representatives, 2005,
pp. 708‑9, and Odgers, J.R., Odgers’ Australian Senate Practice,
12th ed., edited by H. Evans, Canberra: Department of the Senate,
2008, pp. 29‑30, 34‑43.
Maingot, 2nd ed., p. 3. See also p. 198.
Maingot, 2nd ed., p. 3, in particular note 8.
Maingot, 2nd ed., p. 3.
Maingot, 2nd ed., p. 198.
R.S. 1985, Appendix II, No. 3.
O’Brien, G., “Pre-Confederation Parliamentary Procedure: The Evolution of
Legislative Practice in the Lower Houses of Central Canada, 1792‑1866”,
Ph.D. thesis, Carleton University, 1988, p. 109.
O’Brien, p. 110.
O’Brien, p. 111.
O’Brien, pp. 112‑3.
O’Brien, pp. 191‑2.
O’Brien, pp. 195‑6.
R.S. 1985, Appendix II, No. 4.
O’Brien, pp. 303‑4, 377.
O’Brien, p. 379.
Maingot, 2nd ed., p. 3, citing Kielley v. Carson
(1842), 13 E.R. 225 (P.C.) and Doyle v. Falconer (1866), L.R. 1 P.C. 328.
Constitution Act, 1867, R.S. 1985, Appendix II, No.5.
S.C. 1867‑68, c. 23.
Today, these immunities and powers of the House are embodied as sections 4
and 5 of the Parliament of Canada Act, R.S. 1985, c. P‑1.
Sections 4 and 5 read as follows:
Senate and the House of Commons, respectively, and the members thereof hold,
enjoy and exercise
and the like privileges, immunities and powers as, at the time of the passing
of the Constitution Act, 1867, were held, enjoyed and exercised by the Commons
House of Parliament of the United Kingdom and by the members thereof, in so far
as is consistent with that Act; and
privileges, immunities and powers as are defined by Act of the
Parliament of Canada, not exceeding those, at the time of the passing of
the Act, held, enjoyed and exercised by the Commons House of Parliament of the
United Kingdom and by the members thereof.
privileges, immunities and powers held, enjoyed and exercised in accordance
with section 4 are part of the general and public law of Canada and it is
not necessary to plead them but they shall, in all courts in Canada, and by and
before all judges, be taken notice of judicially.
An Act to provide for Oaths to Witnesses being administered in certain cases
for the purposes of either House of Parliament, S.C. 1867‑68,
An Act to provide for the examination of witnesses on Oath by Committees of
the Senate and House of Commons, in certain cases, S.C. 1873,
For further information, see the article by Pelletier, M.R., “Privilege in the
Canadian Parliament”, The Parliamentarian, Vol. LIV, No. 3,
July 1973, pp. 144‑6.
Parliament of Canada Act, 1875, 38‑39 Vict., c. 38 (U.K.) (R.S. 1985, Appendix II, No. 13). The Act also confirmed the Oaths
Act of 1868 and in 1876, Parliament re-enacted the 1873 legislation giving
parliamentary committees the power to examine witnesses under oath (An Act
to provide for the examination of witnesses on oath by Committees of the Senate
and the House of Commons, in certain cases, S.C. 1876, c. 7). In
1894, the Parliamentary Witnesses Oaths Act, 1894 provided for the
examination of witnesses on oath before the Bar of the House as well as before
any committee of the Senate and the House (S.C. 1894, c. 16). See
also Bourinot, J.G., Parliamentary Procedure and Practice in the
Dominion of Canada, South Hackensack, New Jersey: Rothman Reprints Inc.,
1971 (reprint of 1st ed., 1884), pp. 187‑8.
See, for example, Journals, November 21, 1867, p. 30; April 7, 1874, p.
19; March 29, 1892, pp. 172‑3.
See, for example, Journals, March 7, 1873, pp. 6‑9; March 1, 1883, pp. 68‑9.
See, for example, Journals, May 5, 1873, p. 285; April 14, 1877, p. 264. In order to preserve its independence from the executive, Parliament enacted legislation
disqualifying from eligibility to sit in the House any Member who held an
office, commission, or employment in the service of the Government of Canada at
the time of the election. For further information, see Chapter 4, “The House of
Commons and Its Members”.
See, for example, Journals, April 9, 1877, p. 236; March 6, 1911, pp. 224-6.
See, for example, Journals, April 7, 1873, pp. 133-4; April 17, 1873,
pp. 167-72; June 6, 1906, p. 342.
For further information about the evolution of electoral practices in Canada, see Chapter 4, “The House of Commons and Its Members”.
For a good example, see Debates, February 28, 1884, pp. 542‑66.
In two rare cases, the Speaker decided the matters raised were not urgent
enough to be accorded precedence as matters of privilege (Debates,
March 21, 1892, cols. 287‑9; April 6, 1892,
Beauchesne, A., Rules and Forms of the House of Commons of Canada, 3rd ed., Toronto: Canada Law Book Company, Limited, 1943, pp. 82‑3.
See, for example, Debates, May 18, 1883, pp. 1281‑3. For
examples of interventions from the Speaker, see Debates,
February 20, 1877, pp. 122‑3; April 11, 1878,
pp. 1867‑72; April 24, 1883, pp. 785‑6.
See, for example, Debates, June 9, 1936, p. 3528; May 16,
1947, p. 3159; March 7, 1955, p. 1761.
Journals, April 20, 1921, p. 199; May 22, 1924,
p. 299; February 8, 1932, pp. 15‑6 (special committee);
June 30, 1943, pp. 565‑6.
Beauchesne, A., Rules and Forms of the House of Commons of Canada, 4th ed., Toronto: The Carswell Company Limited, 1958, pp. 94‑6; May,
14th ed., pp. 356‑7.
For a list of questions of privilege ruled prima facie by the Speaker
since 1958, see Appendix 15.
See, for example, motion moved by Stanley Knowles (Winnipeg North
Centre): Debates, April 27, 1964, pp. 2582‑3; Journals,
April 28, 1964, p. 251, Debates, pp. 2645‑7; Journals,
June 15, 1964, pp. 425‑6; August 17, 1964,
pp. 623‑4; question raised by Erik Nielsen (Yukon): Journals,
May 14, 1970, p. 803, Debates, pp. 6949‑51; Journals,
June 3, 1970, pp. 917‑8; June 10, 1970, p. 977;
motion moved by Jerry Pringle (Fraser Valley East): Journals,
March 14, 1972, p. 61, Debates, p. 795; Journals,
May 24, 1972, pp. 321‑6; motion moved by Allan J. MacEachen
(President of the Privy Council): Journals, December 22, 1976,
p. 270, Debates, pp. 2241‑2; and motion moved by Lloyd
Axworthy (Minister of Employment and Immigration): Journals,
April 22, 1980, p. 66, Debates, pp. 285‑8; Journals,
July 10, 1980, pp. 347‑8.
See, for example, Debates, May 15, 1964, pp. 3299‑302.
Journals, June 19, 1959, pp. 581‑6.
See, for example, Journals, March 11, 1966, pp. 279‑81;
October 7, 1970, pp. 1423‑4; May 16, 1972,
Debates, April 30, 1964, pp. 2799‑802. See also Debates,
May 17, 1973, p. 3903.
Second Report of the Standing Committee on Procedure and Organization, presented
to the House on March 14, 1975 (Journals, p. 373) and
concurred in on March 24, 1975 (Journals, p. 399).
Debates, April 12, 1962, p. 2909.
See, for example, the ruling of Speaker Lamoureux, Debates,
October 29, 1970, p. 686. By definition, a matter of privilege also
involves a substantive proposal which, because it involves the privileges of the
House or of its Members, is given precedence with the usual notice requirements
being waived (Standing Order 48(1)). For further information, see the section
in this chapter entitled “Procedure for Dealing with Matters of Privilege”.
Journals, July 12, 1976, pp. 1421‑3.
Journals, April 29, 1977, pp. 720‑9.
For further information on the sub judice convention, see
Chapter 13, “Rules of Order and Decorum”.
This order of reference to the Committee arose out of discussions among the
House Leaders following testimony given before the Standing Committee on
Justice and the Solicitor General relating to police investigations of certain
Members (Debates, December 14, 1989, pp. 6939‑40). See
also Standing Committee on Justice and the Solicitor General, Minutes of
Proceedings and Evidence, December 12, 1989, Issue No. 21,
pp. 5‑12, 20‑42.
Standing Committee on Elections, Privileges, Procedure and Private Members’
Business, Minutes of Proceedings and Evidence, January 30, 1990,
Issue No. 20.
Journals, December 14, 1989, p. 1011, Debates,
Second Report of the Special Committee on the Review of the Parliament of
Canada Act, Minutes of Proceedings and Evidence, February 16, 1990, Issue
No. 7, p. 5, presented to the House on February 16, 1990 (Journals,
p. 1233) and concurred in on March 7, 1990 (Journals,
Second Report of the Special Committee on the Review of the Parliament of Canada Act, Minutes of Proceedings and Evidence, February 16, 1990, Issue
No. 7, p. 6.
Second Report of the Special Committee on the Review of the Parliament of Canada Act, Minutes of Proceedings and Evidence, February 16, 1990, Issue
No. 7, p. 7.
Journals, February 6, 2004, p. 25.
Eighth Report of the Standing Committee on Procedure and House Affairs,
presented to the House on March 8, 2004 (Journals,
p. 146), par. 11. See also par. 13.