Parliamentary Privilege in Canada

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ISBN: 9780773517189 | 0773517189
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Copyright: 11/19/1997

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The body of law entitled "parliamentary privilege" was developed to permit the full unfettered and effective operation of a democratically elected legislative body charged collectively with acting on behalf of and in the interest of the people of Canada. Intended to assist Members of Parliament and interested parties on the subject of parliamentary privilege, Parliamentary Privilege in Canada outlines the rights and immunities of Members of Parliament and of legislative assemblies, including freedom of speech, breaches of privileges and contempts, debates and proceeding in Parliament as evidence in court, privilege of freedom from arrest, and related privileges. This new edition incorporates changes to the law since the publication of the first edition in 1982, especially the impact of the Canadian Bill of Rights and Freedoms on the privileges, immunities, and rights of each House of Parliament. Parliamentary Privilege in Canada is a valuable asset to professors and students interested in parliamentary law, practice, and procedure in Canada.

PREFACE

xxiii

CHAPTER 1 Introduction

(10)

Under the French Regime

(1)

Under the British Regime

(2)

Historical and constitutional basis of parliamentary privilege in Canada

(1)

Principal subject of text -- Privileges of House of Commons

(1)

Position in the provincial legislatures

(1)

Position in the legislatures of the territories

(1)

Freedom of speech in the House of Commons

(1)

Freedom of speech in the legislatures of the provinces

(1)

Privileges and the criminal law

(1)

Publication outside Parliament

(1)

Proceedings in Parliament

(1)

Other privileges

(1)

Householder mailings

(1)

Jurisdiction to adjudicate privilege

(2)

CHAPTER 2 Parliamentary Privilege -- A General View

(14)

General definition

(2)

A practical definition

(1)

Subordinate or ancillary nature

(1)

Rights of Members are subject to procedures of House

(1)

Persons engaged in a proceeding of Parliament are also protected

(1)

Breach of privilege

(1)

Contempt of Parliament

(1)

Corporate privileges and individual privileges

(1)

Origin of privilege

(3)

Origin of U.K. privileges

(1)

Origin in pre-Confederation Canada

(1)

Origin for Parliament of Canada

(1)

Distinction between U.K. and Canadian pre-1867 parliamentary privilege

(1)

Speaker's petition

(2)

In the U.K.

(1)

Original purpose of early privileges

(1)

Present form of petition in U.K.

(1)

In Canada

(1)

Form of petition in Upper and Lower Canada in 1792

(1)

Form of petition in Canada in 1841

(1)

Form of petition in 1867

(1)

Present form of petition in the Canadian House of Commons

(1)

Privileges are independent of petition

(1)

No new privilege may be created by either House

(1)

Commencement of Members' privileges

(1)

When does a person officially become a Member?

(1)

When does a person cease officially to be a Member of the House of Commons?

(3)

CHAPTER 3 Privilege of Freedom of Speech

(38)

In effect in the early legislative assemblies in Canada

(1)

Necessity of freedom of speech

(1)

What freedom of speech means

(1)

Speaking in the House of Commons, Senate, or one of the committees of either House: statements made in debate

(6)

In the U.K.

(1)

Haxey's Case (1396-97)

(1)

Thomas Young's Case (1451-55)

(1)

Strode's Case (1512)

(1)

Dillon v. Balfour

(1)

In Canada

(1)

In the Houses of Parliament

(1)

Roman Corp. v. Hudson's Bay Oil & Gas Co.

(2)

In the provincial legislatures

(2)

Freedom of speech and the criminal law

(3)

In the territorial legislatures

(1)

Protection for persons other than Members

(1)

Exceptions to privilege of freedom of speech

(1)

Committees sitting beyond the precincts

(2)

Committee is an arm of the House

(1)

Quorum constitutes the committee

(1)

Committees cannot function outside Canada

(1)

Position in Britain

(1)

Conclusion

(1)

"Appendix" to Hansard

(1)

Publication of debates

(4)

Right to control the publication of debates

(2)

Parliamentary privilege and legal privilege

(1)

Abingdon Case (1794)

(1)

Creevey Case (1813)

(1)

Wason v. Walter (1868)

(1)

Protection of the common law

(2)

Publication for the use of Members only

(1)

Lake v. King (1667)

(1)

Petitions

(1)

Publication for the information of Members' constituents

(1)

Publication of debates by Broadcasting -- Electronic Hansard

(11)

The position of the Member

(1)

The position of the media

(1)

Full debate receives absolute legal privilege

(1)

Extracts attract qualified legal privilege

(1)

In Britain

(1)

Distinction between Hansard or Debates and Reports, Papers, Votes, or Proceedings

(3)

Common law protects debates -- Statute law protects papers and reports

(1)

Onus of proof

(1)

In Canada

(1)

Common-law protection of media reporting debates

(1)

Statutory defence for media reporting debates

(1)

Media may make fair comment

(2)

Conclusion

(1)

Members should uphold and protect the privilege of freedom of speech

(4)

CHAPTER 4 Publication of Parliamentary Papers

(14)

Early history of printing Parliamentary Papers in U.K.

(1)

The position in the U.K.

(8)

Stockdale v. Hansard

(1)

First legal action in 1836

(1)

Decision in Stockdale v. Hansard resulted in Commons inquiry

(1)

Result of inquiry

(1)

Second legal action

(1)

Judgment of the court respecting publication of proceedings and debates

(1)

U.K. Parliamentary Papers Act, 1840 as a direct consequence of Stockdale v. Hansard

(1)

Section 1 of the Act -- full report has full protection

(1)

Section 2 of the Act -- copy of full report has full protection

(1)

Section 3 of the Act -- extract or abstract of report has qualified protection

(1)

Statutory privilege distinguished from common-law privilege

(1)

Command papers and Act papers

(2)

Conclusion

(1)

The position in Canada

(1)

Parliament of Canada Act, s. 7-9

(1)

No federal statutory protection for broadcasting extracts of parliamentary papers -- there is provincial statutory protection

(1)

Protection provided only where House orders publication

(2)

Journals (formerly "Votes and Proceedings" -- see supra, note 37)

(1)

Reports and papers

(1)

Householder mailings

(3)

CHAPTER 5 Proceedings in Parliament

(30)

Bill of Rights, 1689

(1)

What it constitutes

(2)

Historical interpretation

(1)

Must be necessarily incidental to House or committee proceedings

(1)

The technical parliamentary sense

(1)

As opposed to speeches in House or committees

(1)

Covers voting, moving amendments, asking questions, oral and written, giving notice, presenting a petition

(1)

The view of the courts

(16)

Member must be exercising functions as a Member in House or committee business

(1)

Official capacity is wider than acting in a proceeding in Parliament:

(1)

A.G. Ceylon v. de Livera

(1)

Acts of Members done in official capacity may extend beyond parliamentary work and will receive no protection

(1)

A private act or conversation during a proceeding but unrelated to a proceeding is not a proceeding in Parliament

(1)

Roman Corp v. Hudson's Bay Oil & Gas Co.

(3)

Dowson v. The Queen

(2)

A Member of Parliament has no parliamentary privilege when repeating outside what he said in the House

(1)

Vezina v. Lacroix (1936)

(1)

Stopforth v. Goyer (1978)

(1)

Re Ouellet (1976)

(2)

R. v. Bunting (1885)

(1)

The view of the Houses of Parliament

(1)

The Strauss case

(2)

Some reasonable nexus required between acts or words and the business of Parliament

(1)

Private meetings of Members do not attract parliamentary privilege

(1)

Construing "proceedings in Parliament" not to be restricted to what its meaning may have been in 1689

(1)

Historical review

(1)

Not just any connection with a parliamentary matter

(1)

Persons other than Members: protection during a proceeding in Parliament

100

(1)

Summary and conclusion

101

(6)

CHAPTER 6 Protection Afforded Apart from Parliamentary Privilege

107

(8)

Onus on Member

107

(1)

When assisting constituents in their complaints of public officials

107

(2)

When assisting constituents in interest of ending abuses

109

(1)

Disclosures by informants or constituents to Members

110

(2)

Summary in respect of Members of Parliament

112

(1)

Summary in respect of constituents

112

(3)

CHAPTER 7 Proceedings in Parliament, Freedom of Speech, The Official Secrets Act, The Criminal Law

115

(10)

Official Secrets Act (U.K.)

115

(2)

Official Secrets Act -- Canada

117

(2)

The criminal law

119

(1)

The criminal law and the internal regulations of the Houses of Parliament

120

(1)

Conclusion

121

(4)

CHAPTER 8 The Use of Parliamentary Matters as Evidence in Court

125

(26)

Introduction

125

(1)

Reports, papers, votes or proceedings

125

(1)

Journals of the House

126

(2)

Courts take judicial notice of Journals

128

(1)

Courts also take judicial notice of the existence of any distinct practice and procedure of the House

128

(1)

Journals of the House as evidence

128

(2)

Why Journals entries may be relevant

128

(1)

Common informer actions

129

(1)

Civil or criminal prosecution

129

(1)

Position in the U.K.

130

(1)

Chubb v. Salomons (1851)

130

(1)

Forbes v. Samuel (1913)

130

(1)

Tranton v. Astor (1917)

130

(1)

Journals entries must be certified as true copies of original

131

(1)

Position in Canada

131

(3)

Journals entries may be evidence without further proof of facts stated therein

132

(1)

Summary with respect to the Canadian position of the Journals and proceedings in Parliament as evidence in court

132

(1)

The position in Canada with respect to returns to orders as evidence

133

(1)

Production of papers tabled in the House

134

(1)

Production of Hansard or committee proceedings in court

134

(9)

(a) Debates or Hansard

134

(1)

(b) In aid of interpretation of statutes

135

(3)

138

(1)

(i) Hansard evidence in hearsay evidence

138

(1)

(ii) To prove that a Member sat and voted

139

(1)

(iii) Use in civil litigation

140

(2)

(iv) Use in criminal prosecutions

142

(1)

Overview

143

(2)

Use of parliamentary proceedings as statutory exceptions to the Bill of Rights, 1689

144

(1)

Summary of the position with respect to the use of the Debates and committee evidence in court proceedings

145

(1)

Summary and conclusion

146

(5)

CHAPTER 9 Privilege of Freedom from Arrest and Related Privileges

151

(12)

Freedom from arrest

151

(2)

Originally included Members' chattels and servants, and protected the Member from being impleaded

153

(1)

Members not protected from civil process except civil arrest

153

(2)

Included in Lower and Upper Canada for their Members, 1791

154

(1)

Continued after 1840

154

(1)

Became part of privileges of Members of both Houses in 1867

154

(1)

Duration of the privilege

155

(1)

Commencement -- 40 days before session

155

(1)

Continues for 40 days after end of session

155

(1)

Extent of the privilege of freedom from arrest

155

(2)

Extends only to civil matters

155

(1)

Does not include criminal offences

156

(1)

Does not include quasi-criminal offences

156

(1)

Contempt of court

157

(1)

Member is protected from civil contempt

157

(1)

Member is not protected from criminal contempt

157

(1)

House to be informed

158

(1)

Privilege of not being required to attend as a witness

158

(1)

Privilege of exemption from jury service

159

(1)

Privilege extended to persons not members

160

(1)

Officers of the House of Commons and Senate

160

(1)

Witnesses and others

160

(1)

Summary: Freedom from arrest and related matters

160

(3)

CHAPTER 10 Parliament Hill and the Precincts of the Houses of Parliament

163

(16)

Dictionary definition of "precincts"

163

(1)

What they are

163

(1)

Where they are

163

(1)

Not a sanctuary

164

(1)

Library of Parliament

165

(1)

Contemptuous acts done within precincts on a sitting day treated as if done in the face of the House

166

(1)

Position of U.K. Commons

166

(1)

Canadian position

167

(1)

Service of civil process on a sitting day could amount to contempt

168

(1)

Title to Parliament Hill

168

(1)

Management, care, and control of the Parliament Buildings

169

(1)

Each House administers its own affairs

170

(1)

Traffic control and negligence on the roadway on Parliament Hill

170

(1)

The police and the precincts on the House of Commons

171

(1)

Function of precincts is "sacred"

171

(1)

Police may not come onto precincts uninvited when on official business

172

(1)

Grounds of Parliament Hill are not part of the precincts

173

(2)

Precincts in U.K.

175

(1)

Precincts in New Zealand

175

(1)

Precincts in Australia

176

(1)

Access to the precincts

176

(3)

CHAPTER 11 The Corporate Rights, Privileges, and Powers of the Senate and of the House of Commons

179

(38)

Introduction

179

(1)

Power to discipline

180

(1)

Jurisdiction over its Members is absolute and exclusive

181

(1)

The right to have the attendance and service of Members

181

(1)

The right to control publication of debates and proceedings

182

(1)

The right to regulate internal affairs free from interference

183

(2)

Internal proceedings

185

(2)

House has sole jurisdiction to determine rights exercised within the House or its committees

185

(2)

The right to provide for its proper constitution

187

(3)

The right to determine whether Members of the House of Commons are qualified to sit and vote

187

(3)

The Senate

190

(1)

The right to institute inquiries and to require the attendance of witnesses and the production of documents

190

(1)

The right to administer oaths to witnesses

191

(1)

The right to publish material containing defamatory matter

192

(1)

The penal power: the right to commit for contempt or breach of privilege

193

(17)

Not confined to Members

193

(1)

Not confined to acts on precincts

194

(1)

In the U.K.

195

(2)

In Canada

197

(1)

Nova Scotia House of Assembly, 1758, 1829

198

(1)

Lower Canada Legislature, 1794

199

(1)

Upper Canada Legislature, 1812

199

(1)

Opinion of law officers of the Crown, 1815

199

(1)

McNab v. Bidwell (1830) (Upper Canada)

200

(1)

Re Tracey and Duvernay (1832) (Lower Canada)

200

(1)

Kielley v. Carson (1842) (Nfld.)

201

(1)

Ex parte Lavoie (1855)

202

(1)

1867 to the present

203

(1)

Ex parte Cotte and Duvernay (February 9, 1875)

204

(1)

Ex parte Dansereau (February 17, 1875)

204

(1)

Ex parte Cotte and Duvernay (February 20, 1875)

204

(1)

Landers v. Woodworth (1878)

204

(1)

R. v. Bunting (1885)

205

(1)

Fielding v. Thomas (1896)

205

(1)

Position of the provincial legislative assemblies

206

(1)

Position of the Legislative Assembly of the Northwest Territories and of the Yukon Territory

206

(1)

The need for the penal power

207

(1)

(a) In the U.K.

207

(1)

(b) In Canada

207

(1)

Duration of imprisonment

208

(1)

The warrant to commit

208

(2)

Protection afforded to officers of the House executing orders of House of Commons

210

(1)

Punishment imposed on Members

211

(2)

Commitment and habeas corpus

213

(4)

In the U.K.

213

(1)

In Canada

213

(2)

Suits by or against the House of Commons or Senate

215

(2)

CHAPTER 12 Procedure in the House of Commons Relating to Breaches of Privilege and Contempts

217

(54)

Introduction

217

(1)

U.K. and Canadian practice -- some differences

217

(1)

How precedent is established in Canadian Commons

218

(1)

How to embark on privilege proceedings

219

(1)

Debates on the "question of privilege": the Canadian experience

220

(1)

Prima facie case -- parliamentary sense

221

(1)

Only the House may decide if contempt or breach of privilege has occurred

221

(1)

Privilege arising in committee

221

(1)

Canadian Commons practice more relaxed than in U.K.

222

(1)

Alleged acts must relate to a Member's parliamentary work: words or acts must amount to contempt

222

(1)

Where the answer is contained in rules or practice of House

223

(1)

A point of order is not a matter of privilege

223

(1)

Privilege concerns a Member as Member, not as Minister, Party Leader, Whip or Parliamentary Secretary

224

(1)

Differences between breach of privilege and "contempt"

224

(1)

May's distinction

225

(1)

Halsbury's distinction

225

(1)

Contempt cannot be codified: contempt has no limits

226

(1)

Member gets benefit of doubt

227

(1)

Description of a "question of privilege" raised in the House of Commons

227

(1)

Acts or conduct constituting breach of privilege or contempt

228

(7)

Improper interference with Members' privileges

228

(1)

Improper interference with corporate privileges

229

(1)

Contempt is whatever a House finds as contempt

229

(1)

Assaulting, threatening, challenging, intimidating or molesting Members and officers of the House

230

(3)

Contempt respecting petitions and other documents

233

(1)

Obstructing or interfering with the Member in his parliamentary duties

233

(2)

Test: Obstruction must be connected to parliamentary work (parliamentary proceeding) and be occasioned by improper means

235

(12)

Obstructing or interfering with persons other than Members and officers

236

(1)

Corruption in execution of functions of Members of House of Commons

237

(1)

Misbehaviour before the House or a committee

238

(1)

Disobedience to statute law relating to the Houses of Parliament or to the rules or orders of the House or of a committee

239

(1)

Obstructing, interfering with, or preventing execution of orders of House or committee

240

(1)

Conduct of a Member: raising complaints against Members in the House of Commons

240

(5)

Conclusion

245

(2)

Determination of eligibility to sit and vote

247

(1)

Constructive contempts

247

(12)

Publication of false or perverted reports of Debates

247

(1)

Premature or improper publications or disclosure of the proceedings of the House of Commons or of one of its committees

248

(2)

Reflections on Members and on the House

250

(6)

Criteria to assess

256

(1)

Contempt relating to the precincts of Parliament

256

(1)

Assault on Members

256

(1)

Invasion of privacy

256

(1)

Two competing interests

256

(1)

Administration of justice within the precincts

257

(1)

Police require permission of Speaker

258

(1)

Non-sitting days

259

(1)

Procedure involved in moving a motion based on a question of privilege in the House of Commons

259

(8)

Conditions precedent

259

(2)

The motion

261

(3)

Procedure in the House when the complaint is not founded on written or spoken words

264

(1)

Procedure in the House when the complaint is founded on written or spoken words

264

(2)

Where a Member is the subject of a question of privilege

266

(1)

Precedence

267

(1)

Motion is amendable and takes precedence until disposed of

267

(1)

Procedure in the Privileges Committee

267

(2)

Report to the House from Privileges Committee; its consideration

269

(1)

Called to the Bar of the House

270

(1)

Procedural effect of Speaker not finding a prima facie case

270

(1)

CHAPTER 13 The Courts or the Senate and the House of Commons: Jurisdiction over Parliamentary Privilege

271

(32)

Introduction

271

(1)

Scope of chapter

271

(1)

The position in the U.K.

272

(9)

First privilege claimed was freedom from arrest

274

(1)

Thorpe's Case (1452)

274

(1)

Ferrers' Case (1542)

274

(1)

Suits Against Members

274

(1)

Benyon v. Evelyn (1664)

274

(1)

Suits Against Returning Officers

275

(1)

Barnardiston v. Soame (1674)

275

(1)

Effect of Speaker's Warrants v. Habeas Corpus

276

(1)

Earl of Shaftesbury (1677)

276

(1)

Speaker Acting in Pursuance to an Order of the House

276

(1)

Sir William Williams (1684)

276

(1)

Suits Against Officers of Parliament

276

(1)

Jay v. Topham (1689)

276

(1)

Suits Involving Elections

277

(1)

Ashby v. White (1703)

277

(1)

R. v. Paty (1704)

278

(1)

Review

279

(1)

Further Suit Against Officers of Parliament

280

(1)

Burdett v. Abbot (1811)

280

(1)

Stockdale v. Hansard (1839)

281

(6)

Facts

282

(1)

The decision

283

(2)

Ratio Decidendi

285

(1)

The Present Position in the U.K.

285

(2)

The position in Canada

287

(6)

Re Clark and A.G. Can (1977)

289

(1)

(a) The decision of the court

289

(2)

(b) Debate in House of Commons concerning Re Clark and A.G. Canada (1977)

291

(2)

Internal Proceedings

293

(5)

Who defends the privileges of the House of Commons or Senate before the courts in Canada

298

(1)

From 1867 to the present

298

(1)

The present Canadian position respecting jurisdiction

298

(5)

CHAPTER 14 The Canadian Charter of Rights and Freedoms and Parliamentary Privilege

303

(48)

Introduction

303

(2)

Relevant provisions of the Charter

305

(1)

Parliamentary Privilege

306

(1)

N.B. Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly)

306

(1)

Lower Court decisions

307

(1)

Supreme Court of Canada decision

307

(2)

Analysis of majority judgment

309

(3)

The particular privilege in issue -- the right to exclude strangers

312

(2)

Other named privileges or powers

314

(4)

(a) Freedom of Speech

315

(1)

(b) Control over internal proceedings

316

(1)

Control of Publications of Debates and Proceedings

317

(1)

Relevance of Judicial Deference

318

(23)

1. The courts determine the existence, extent and scope of a parliamentary privilege but have no power to regulate its exercise

322

(6)

2. Is all Constitutional Power Conferred on the Executive and Legislative Branches Subject to and Diminished by the Charter?

328

(1)

3. Definition of "Necessary"

329

(2)

4. In the Event the Charter is Applied

331

(1)

5. Is Section 18 of the Constitution Act, 1867 the Source of Parliamentary Privilege?

332

(1)

6. Freedom of Speech Under the Charter and the Penal Power

333

(1)

7. The Penal Power -- Penal Jurisdiction

334

(7)

Summary and Conclusion

341

(4)

Summing Up

345

(4)

I. Penal Power

345

(2)

II. Judicial Deference

347

(2)

In a Nutshell

349

(2)

APPENDIX

351

(20)

THE BILL OF RIGHTS, 1689

353

(1)

THE PARLIAMENTARY PAPERS ACT, 1840

354

(2)

CONSTITUTION ACT, 1867

356

(4)

CONSTITUTION ACT, 1982

360

(4)

PARLIAMENT OF CANADA ACT

364

(7)

BIBLIOGRAPHY

371

(6)

TABLE OF CASES

377

(12)

INDEX

389

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Parliamentary Privilege in Canada

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