Parliamentary Privilege in Canada [Second edition] 9780773567139

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Parliamentary Privilege in Canada

Parliamentary Privilege in Canada Second Edition J.P. Joseph Maingot, Q.C.

House of Commons and McGill-Queen's University Press

0 The

House of Commons 1997

ISBN 0-7735-1718-9

Legal deposit third quarter 1997 Bibliotheque nationale du Quebec All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior written permission of the copyright holder. Printed and bound in Canada Canadian Cataloguing in Publication Data Maingot, J.P. Joseph, 1931Parliamentary privilege in Canada 2nd ed. Co-published by: House of Commons. Includes bibliographical references and index. ISBN 0-7735-1718-9 1. Canada. Parliament - Privileges and immunities. I. Canada. Parliament. House of Commons. II. Title. KE4578.M35 1997

342.71'055

C97-900668-6

J.P. Joseph Maingot was Law Clerk and Parliamentary Counsel, House of Commons, 1971-1982.

To The Honourable Gilbert Parent Speaker of the House of Commons and those who have previously held this office

In memory of J. Gordon Dubroy former Clerk Assistant of the House of Commons

TABLE OF CONTENTS

PREFACE CHAPTER 1 Introduction

xxiii 1

Under the French Regime

1

Under the British Regime

1

Historical and constitutional basis of parliamentary privilege in Canada

3

Principal subject of text — Privileges of House of Commons

4

Position in the provincial legislatures

5

Position in the legislatures of the territories Freedom of speech in the House of Commons Freedom of speech in the legislatures of the provinces Privileges and the criminal law Publication outside Parliament

5 6 6

Householder mailings

7 7 8 8 9

Jurisdiction to adjudicate privilege

9

Proceedings in Parliament Other privileges

CHAPTER 2 Parliamentary Privilege A General View General definition A practical definition Subordinate or ancillary nature Rights of Members are subject to procedures of House

11 12 13 13 13

Persons engaged in a proceeding of Parliament are also protected Breach of privilege

14

Contempt of Parliament

14

Corporate privileges and individual privileges

14

15

viii

Parliamentary Privilege in Canada

Origin of privilege Origin of U.K. privileges Origin in pre-Confederation Canada Origin for Parliament of Canada Distinction between U.K. and Canadian pre-1867 parliamentary privilege Speaker's petition In the U.K • Original purpose of early privileges • Present form of petition in U.K In Canada • Form of petition in Upper and Lower Canada in 1792 • Form of petition in Canada in 1841 • Form of petition in 1867 • Present form of petition in the Canadian House of Commons • Privileges are independent of petition No new privilege may be created by either House Commencement of Members' privileges When does a person officially become a Member? When does a person cease officially to be a Member of the House of Commons?

15 16 16 16

CHAFFER 3 Privilege of Freedom of Speech In effect in the early legislative assemblies in Canada Necessity of freedom of speech What freedom of speech means Speaking in the House of Commons, Senate, or one of the committees of either House: statements made in debate In the U.K • Haxey's Case (1396-97) • Thomas Young's Case (1451-55) • Strode's Case (1512) • Dillon v. Balfour

25 25 25 26

17 18 18 18 19 19 19 19 19 20 20 20 21 21 22

27 27 27 28 28 29

Table of Contents

In Canada n In the Houses of Parliament n Roman Corp. v. Hudson's Bay Oil & Gas Co. n In the provincial legislatures Freedom of speech and the criminal law n In the territorial legislatures Protection for persons other than Members Exceptions to privilege of freedom of speech Committees sitting beyond the precincts Committee is an arm of the House Quorum constitutes the committee Committees cannot function outside Canada Position in Britain Conclusion "Appendix" to Hansard Publication of debates Right to control the publication of debates Parliamentary privilege and legal privilege n Abingdon Case (1794) n Creevey Case (1813) n Wason v. Walter (1868) Protection of the common law Publication for the use of Members only n Lake v. King (1667) Petitions Publication for the information of Members' constituents Publication of debates by Broadcasting Electronic Hansard The position of the Member The position of the media n Full debate receives absolute legal privilege n Extracts attract qualified legal privilege In Britain n Distinction between Hansard or Debates and Reports, Papers, Votes, or Proceedings

ix

29 29 29 31 33 36 36 37 37 37 38 38 38 39 39 40 40 42 42 43 43 44 46 46 47 47 48 49 50 50 51 51 52

Parliamentary Privilege in Canada

x

n Common law protects debates — Statute law protects papers and reports n Onus of proof In Canada n Common-law protection of media reporting debates n Statutory defence for media reporting debates n Media may make fair comment Conclusion Members should uphold and protect the privilege of freedom of speech CHAPTER 4 Publication of Parliamentary Papers Early history of printing Parliamentary Papers in U.K. The position in the U.K. n Stockdale v. Hansard n First legal action in 1836 n Decision in Stockdale v. Hansard resulted in Commons inquiry n Result of inquiry n Second legal action n Judgment of the court respecting publication of proceedings and debates n U.K. Parliamentary Papers Act, 1840 as a direct consequence of Stockdale v. Hansard n Section 1 of the Act — full report has full protection n Section 2 of the Act — copy of full report has full protection n Section 3 of the Act — extract or abstract of report has qualified protection n Statutory privilege distinguished from common-law privilege

55 55 55 56 57 57 59 59 63 63 63 63 64 64 64 65 65 66 67 67 67 68

Command papers and Act papers

68

Conclusion

70

The position in Canada n Parliament of Canada Act, s. 7-9 No federal statutory protection for broadcasting extracts of parliamentary papers — there is provincial statutory protection

71 71 71

Table of Contents

Protection provided only where House orders publication n Journals (formerly "Votes and Proceedings"— see supra, note 37)

xi

71 72

Reports and papers

73

Householder mailings

74

CHAPTER 5 Proceedings in Parliament

77

Bill of Rights, 1689

77

What it constitutes

77

Historical interpretation

79

Must be necessarily incidental to House or committee proceedings

80

The technical parliamentary sense

80

As opposed to speeches in House or committees

81

Covers voting, moving amendments, asking questions, oral and written, giving notice, presenting a petition The view of the courts

81 82

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

82

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

82

n A.G. Ceylon v. de Livera

82

Acts of Members done in official capacity may extend beyond parliamentary work and will receive no protection 83 n A private act or conversation during a proceeding but unrelated to a proceeding is not a proceeding in Parliament n Roman Corp v. Hudson's Bay Oil & Gas Co. n Dowson v. The Queen A Member of Parliament has no parliamentary privilege when repeating outside what he said in the House

84 85 88 90

n Vezina v. Lacroix (1936)

91

n Stopforth v. Goyer (1978)

92

n Re Ouellet (1976)

92

n R. v. Bunting (1885)

94

The view of the Houses of Parliament n The Strauss case

94 95

xii

Parliamentary Privilege in Canada

Some reasonable nexus required between acts or words and the business of Parliament Private meetings of Members do not attract parliamentary privilege Construing "proceedings in Parliament" not to be restricted to what its meaning may have been in 1689 Historical review Not just any connection with a parliamentary matter Persons other than Members: protection during a proceeding in Parliament Summary and conclusion CHAPTER 6 Protection Afforded Apart from Parliamentary Privilege Onus on Member When assisting constituents in their complaints of public officials When assisting constituents in interest of ending abuses Disclosures by informants or constituents to Members Summary in respect of Members of Parliament Summary in respect of constituents CHAPTER 7 Proceedings in Parliament, Freedom of Speech, The Official Secrets Act, The Criminal Law Official Secrets Act (U.K.) Official Secrets Act — Canada The criminal law The criminal law and the internal regulations of the Houses of Parliament Conclusion CHAPTER 8 The Use of Parliamentary Matters as Evidence in Court Introduction Reports, papers, votes or proceedings Journals of the House Courts take judicial notice of Journals

97 98 98 98 99 100 101 107 107 107 109 110 112 112

115 115 117 119 120 121 125 125 125 126 128

Table of Contents

Courts also take judicial notice of the existence of any distinct practice and procedure of the House Journals of the House as evidence n Why Journals entries may be relevant n Common informer actions n Civil or criminal prosecution Position in the U.K. n Chubb v. Salomons (1851) n Forbes v. Samuel (1913) n Tranton v. Astor (1917) n Journals entries must be certified as true copies of original Position in Canada n Journals entries may be evidence without further proof of facts stated therein n Summary with respect to the Canadian position of the Journals and proceedings in Parliament as evidence in court n The position in Canada with respect to returns to orders as evidence n Production of papers tabled in the House Production of Hansard or committee proceedings in court (a) Debates or Hansard (b) In aid of interpretation of statutes (c) Other uses in court (i) Hansard evidence is hearsay evidence (ii) To prove that a Member sat and voted (iii) Use in civil litigation (iv) Use in criminal prosecutions Overview n Use of parliamentary proceedings as statutory exceptions to the Bill of Rights, 1689 Summary of the position with respect to the use of the Debates and committee evidence in court proceedings Summary and conclusion CHAPTER 9 Privilege of Freedom from Arrest and Related Privileges Freedom from arrest

xiii

128 128 128 129 129 130 130 130 130 131 131 132 132 133 134 134 134 135 138 138 139 140 142 143 144 145 146 151 151

xiv

Parliamentary Privilege in Canada

Originally included Members' chattels and servants, and protected the Member from being impleaded Members not protected from civil process except civil arrest n Included in Lower and Upper Canada for their Members, 1791 n Continued after 1840 n Became part of privileges of Members of both Houses in 1867

153 153 154 154 154

Duration of the privilege • Commencement — 40 days before session • Continues for 40 days after end of session

155 155 155

Extent of the privilege of freedom from arrest n Extends only to civil matters n Does not include criminal offences n Does not include quasi-criminal offences Contempt of court n Member is protected from civil contempt n Member is not protected from criminal contempt n House to be informed

155 155 156 156 157 157 157 158

Privilege of not being required to attend as a witness Privilege of exemption from jury service

158 159

Privilege extended to persons not members Officers of the House of Commons and Senate Witnesses and others

160

Summary: Freedom from arrest and related matters

160

CHAPTER 10 Parliament Hill and the Precincts of the Houses of Parliament Dictionary definition of "precincts"

160 160

163 163

What they are

163

Where they are Not a sanctuary Library of Parliament

163 164

Contemptuous acts done within precincts on a sitting day treated as if done in the face of the House Position of U.K. Commons

165 166 166

Table of Contents

xv

Canadian position

167

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

168

Title to Parliament Hill

168

Management, care, and control of the Parliament Buildings

169

Each House administers its own affairs

170

Traffic control and negligence on the roadway on Parliament Hill

170

The police and the precincts on the House of Commons

171

Function of precincts is "sacred"

171

Police may not come onto precincts uninvited when on official business

172

Grounds of Parliament Hill are not part of the precincts

173

Precincts in U.K.

175

Precincts in New Zealand

175

Precincts in Australia

176

Access to the precincts

176

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

179

Introduction

179

Power to discipline

180

Jurisdiction over its Members is absolute and exclusive The right to have the attendance and service of Members The right to control publication of debates and proceedings The right to regulate internal affairs free from interference Internal proceedings House has sole jurisdiction to determine rights exercised within the House or its committees The right to provide for its proper constitution The right to determine whether Members of the House of Commons are qualified to sit and vote

181 181 182 183 185 185 187 187

xvi

Parliamentary Privilege in Canada

The Senate The right to institute inquiries and to require the attendance of witnesses and the production of documents The right to administer oaths to witnesses The right to publish material containing defamatory matter The penal power: the right to commit for contempt or breach of privilege Not confined to Members Not confined to acts on precincts In the U.K In Canada n Nova Scotia House of Assembly, 1758, 1829 n Lower Canada Legislature, 1794 n Upper Canada Legislature, 1812 n Opinion of law officers of the Crown, 1815 n McNab v. Bidwell (1830) (Upper Canada) n Re Tracey and Duvernay (1832) (Lower Canada) n Kielley v. Carson (1842) (Nfld.) n Ex parte Lavoie (1855) n 1867 to the present n Ex parte Cotte and Duvernay (February 9, 1875) n Ex parte Dansereau (February 17, 1875) n Ex parte Cotte and Duvernay (February 20, 1875) n Landers v. Woodworth (1878) n R. v. Bunting (1885) n Fielding v. Thomas (1896) n Position of the provincial legislative assemblies n Position of the Legislative Assembly of the Northwest Territories and of the Yukon Territory The need for the penal power (a) in the UK (b) In Canada Duration of imprisonment The warrant to commit Protection afforded to officers of the House executing orders of House of Commons

190 190 191 192 193 193 194 195 197 198 199 199 199 200 200 201 202 203 204 204 204 204 205 205 206 206 207 207 207 208 208 210

Table of Contents

Punishment imposed on Members Commitment and habeas corpus In the U.K In Canada n Suits by or against the House of Commons or Senate CHAPTER 12 Procedure in the House of Commons Relating to Breaches of Privilege and Contempts Introduction U.K. and Canadian practice — some differences How precedent is established in Canadian Commons How to embark on privilege proceedings Debates on the "question of privilege": the Canadian experience Prima facie case — parliamentary sense Only the House may decide if contempt or breach of privilege has occurred Privilege arising in committee Canadian Commons practice more relaxed than in U.K. Alleged acts must relate to a Member's parliamentary work: words or acts must amount to contempt Where the answer is contained in rules or practice of House A point of order is not a matter of privilege Privilege concerns a Member as Member, not as Minister, Party Leader, Whip or Parliamentary Secretary Differences between breach of privilege and "contempt" May's distinction Halsbury's distinction Contempt cannot be codified : contempt has no limits Member gets benefit of doubt Description of a "question of privilege" raised in the House of Commons Acts or conduct constituting breach of privilege or contempt

xvii

211 213 213 213 215

217 217 217 218 219 220 221 221 221 222 222 223 223 224 224 225 225 226 227 227 228

xviii

Parliamentary Privilege in Canada

Improper interference with Members' privileges Improper interference with corporate privileges Contempt is whatever a House fords as contempt Assaulting, threatening, challenging, intimidating or molesting Members and officers of the House Contempt respecting petitions and other documents Obstructing or interfering with the Member in his parliamentary duties Test: Obstruction must be connected to parliamentary work (parliamentary proceeding) and be occasioned by improper means Obstructing or interfering with persons other than Members and officers Corruption in execution of functions of Members of House of Commons Misbehaviour before the House or a committee Disobedience to statute law relating to the Houses of Parliament or to the rules or orders of the House or of a committee Obstructing, interfering with, or preventing execution of orders of House or committee Conduct of a Member: raising complaints against Members in the House of Commons Conclusion Determination of eligibility to sit and vote Constructive contempts Publication of false or perverted reports of Debates Premature or improper publications or disclosure of the proceedings of the House of Commons or of one of its committees Reflections on Members and on the House Criteria to assess Contempt relating to the precincts of Parliament Assault on Members Invasion of privacy Two competing interests Administration of justice within the precincts Police require permission of Speaker

228 229 229 230 233 233 235 236 237 238 239 240 240 245 247 247 247 248 250 256 256 256 256 256 257 258

Table of Contents

Non-sitting days Procedure involved in moving a motion based on a question of privilege in the House of Commons Conditions precedent The motion Procedure in the House when the complaint is not founded on written or spoken words Procedure in the House when the complaint is founded on written or spoken words Where a Member is the subject of a question of Privilege Precedence Motion is amendable and takes precedence until disposed of Procedure in the Privileges Committee Report to the House from Privileges Committee; its consideration Called to the Bar of the House Procedural effect of Speaker not finding a prima facie case CHAPTER 13 The Courts or the Senate and the House of Commons: Jurisdiction over Parliamentary Privilege Introduction Scope of chapter The position in the U.K First privilege claimed was freedom from arrest n Thorpe's Case (1452) n Ferrers' Case (1542) Suits Against Members n Benyon v. Evelyn (1664) Suits Against Returning Officers n Barnardiston v. Soame (1674) Effect of Speaker's Warrants v. Habeas Corpus n Earl of Shaftesbury (1677) Speaker Acting in Pursuance to an Order of the House n Sir William Williams (1684)

xix 259 259 259 261 264 264 266 267 267 267 269 270 270

271 271 271 272 274 274 274 274 274 275 275 276 276 276 276

Parliamentary Privilege in Canada

xx

Suits Against Officers of Parliament • Jay v. Topham (1689)

276 276

Suits Involving Elections • Ashby v. White (1703) • R. v. Paty (1704)

277 277 278

Review Further Suit Against Officers of Parliament • Burdett v. Abbot (1811) Stockdale v. Hansard (1839) Facts The decision • Ratio Decidendi The Present Position in the U.K. The position in Canada • Re Clark and A.G. Can (1977) (a) The decision of the court (b) Debate in House of Commons concerning Re Clark and A.G. Canada (1977) Internal Proceedings Who defends the privileges of the House of Commons or Senate before the courts in Canada • From 1867 to the present The present Canadian position respecting jurisdiction CHAPTER 14 The Canadian Charter of Rights and Freedoms and Parliamentary Privilege Introduction Relevant provisions of the Charter Parliamentary Privilege N.B. Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly) Lower Court decisions Supreme Court of Canada decision Analysis of majority judgment The particular privilege in issue — the right to exclude strangers

279 280 280 281 282 283 285 285 287 289 289 291 293 298 298 298

303 303 305 306 306 307 307 309 312

Table of Contents

Other named privileges or powers (a) Freedom of Speech (b) Control over internal proceedings n Control of Publications of Debates and Proceedings Relevance of Judicial Deference

xxi

314 315 316 317 318

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

322

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

328

3. Definition of "Necessary"

329

4. In the Event the Charter is Applied

331

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

332

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

333

7. The Penal Power — Penal Jurisdiction

334

Summary and Conclusion

341

Summing Up

345

I. Penal Power

345

II.Judicial Deference

347

In a Nutshell APPENDIX

349 351

THE BILL OF RIGHTS, 1689

353

THE PARLIAMENTARY PAPERS ACT, 1840

354

CONSTITUTION ACT, 1867

356

CONSTITUTION ACT, 1982

360 364

PARLIAMENT OF CANADA ACT BIBLIOGRAPHY

371

TABLE OF CASES

377

INDEX

389

PREFACE While it is correct to say that the law of parliamentary privilege has remained relatively static since Confederation, the enactment of the Canadian Charter of Rights and Freedoms (Charter) in 1982 after the first edition went to print, and the recent (1993) decision of the Supreme Court of Canada in New Brunswick Broadcasting Co. and Nova Scotia (Speaker of the House of Assembly) dealing as it does with the application of the Charter to the Nova Scotia House of Assembly and its privileges, served up an appropriate occasion for a second edition. The New Brunswick Broadcasting decision was the first time that the Supreme Court dealt with the issue of parliamentary privilege in nearly 100 years and the very first time that court had before it a question concerning the Charter and parliamentary privilege. In addition, since 1982 there have been Speakers' rulings in the two Houses of Parliament and in many of the provincial assemblies that provided relevant jurisprudence. In New Brunswick Broadcasting, the Supreme Court has now distinguished two types of parliamentary privilege: those that are inherently constitutional and those that are not. The decision has raised a number of questions involving this elusive subject and I have attempted to deal with them in an additional chapter, Chapter 14. I take this opportunity to thank the Honourable Gilbert Parent, Speaker of the House of Commons without whose intervention this second edition could not have been undertaken and completed. He arranged for the House to provide the necessary financial assistance and accommodation to complete the project. I am also thankful for the support provided by Deputy Speaker David Kilgour. Before I undertook the second edition for the House, the law firm of Gowling, Strathy & Henderson kindly provided me with the use of their Library during the time the Supreme Court of Canada Library was under renovation. I had preliminary discussions with a number of interested parliamentary personnel associated with the subject and this was most useful. They include Diane Davidson, General Legal Counsel of the House of Commons; Ms. Sydney H. Fisher, Legal Counsel; Marc Audcent, then Assistant now Law Clerk and Parliamentary Counsel, the Senate; Charles Robert, Committees Branch, the Senate; J. (Jamie) Robertson, Research Branch, Library of Parliament. During the time I was occupied in this work, I received the able collaboration of the Table Research Branch of the House of Commons.

'ads,

Parliamentary Privilege in Canada

Terence Moore of that branch read a first re-draft of Chapters 1 to 13 and made helpful suggestions and corrections. As usual, the Library of Parliament, in particular the La Promenade Building Branch was also very supportive in responding to my considerable requests. As an adjunct professor with the Law Faculty, University of Ottawa over the past number of years, I had occasion to supervise the LLM thesis of Peter Bernhardt, the Contempt Power of the House of Commons completed in 1990 and that of L.M. Munn, Parliamentary Privilege in Canada, completed in 1992. Both Mr. Bernhardt who is a general counsel with the Joint Committee of the Senate and House of Commons on Scrutiny of Regulations, and Mr. Munn were very helpful in discussing aspects of the matter with me and notwithstanding a busy law practice in Vancouver, Mr. Munn graciously read more than one draft of Chapter 14 and made valuable suggestions along the way. New Brunswick Broadcasting v. Nova Scotia compelled a new look at the traditional jurisprudence. In this I had the very able assistance of David Dehler, lawyer, researcher and analyst whose keen mind quickly extrapolated the hoary jurisprudence and enabled us to discuss the traditional views of parliamentary privilege juxtaposed with the Charter and the New Brunswick Broadcasting decision. This permitted me a new vantage point and a new appreciation of this elusive subject. Mt Dehler also assisted in the drafting of some parts of Chapter 14. Until his retirement and untimely death in 1975, J. Gordon Dubroy was for many years a Table Officer of the House of Commons and from 1968, Clerk Assistant of the House of Commons. In my years at the House of Commons, I had the good fortune to collaborate with him. I witnessed the knowledge, expertise and dedication to the House and its procedure for which he was well renowned in Canada as well as in the Commonwealth. This second edition accordingly is dedicated to his memory. I wish to thank Claire Harris for her generosity in contributing so very much to the second edition by entering the full manuscript and the many changes it underwent into the computer. I also want to express my appreciation to the Publications and Index Services of the House of Commons as well as to the Parliamentary Translation and Interpretation Directorate (Public Works and Government Services Canada) for all the work they have done in the fmal stages of production of the edition. J.P. Joseph Maingot June 20, 1997

CHAPTER 1 Introduction

Parliamentary privilege is a branch of the law of Parliament. That is to say, it is part of the general public law of Canada relating to the customs, practices, procedures, privileges, and powers of each House of Parliament and its Members.

Under the French Regime The history of parliamentary institutions in Canada commences after the mid-eighteenth century. While Canada remained a French possession, the inhabitants were never represented in legislative assemblies and never exercised control over their purely local affairs.1

Under the British Regime During the period 1760-63 in what is now Quebec, military councils were established to administer the law; as a rule, however, the people did not resort to such tribunals but rather settled their differences among themselves. The Royal Proclamation of October 1763 heralded a new form of government for what now includes Ontario and Quebec. The letters patent by which the government was constituted granted power to the governor, with the advice and consent of the council, to summon general assemblies to make laws for the peace, welfare, and good government of the colonies. However, persons duly elected to the proposed assemblies were required, before taking their seats, to take oaths of allegiance and supremacy of the monarch, and the declaration of transubstantiation. As the Roman Catholic French population was unwilling to do so, no assembly ever met. Until 1774, the government of all parts of Canada had been created by letters patent or other prerogative instruments. In 1774, the system of government was granted to what is now Ontario and Quebec by an Act of the Parliament of Great Britain, the Quebec Act. In this respect, they occupied a position similar to that of the citizens of metropolitan France, a position very different from that of the English colonists in what is now the USA

2

CHAPTER 1

The constitution contained in the Quebec Act did not provide for an elected assembly2 but rather provided for an appointed council, which, with the consent of the governor, had the power to make ordinances for the Peace, Welfare, and good Government of the province—subject to transmittal within six months to His Majesty3 for approval or disallowance. The test oath was also withdrawn. The Coutume de Paris was to apply to all matters of property and civil rights and the law of England was to apply to criminal matters; both of these were subject to amendment by the governor's council. With regard to the rights, immunities, and powers of Members and of the appointed council, the Members and the council had all the powers that were necessary to perform their legislative function.4 There does not appear to be any recorded instance of any problems arising, presumably because the council met behind closed doors after each Member swore the following oath: I swear to keep close and secret all such matters as shall be treated, debated and resolved in Council, without disclosing or publishing the same or any part thereof.5 The Constitutional Act of 1791 provided for two central provinces of Canada (Lower Canada and Upper Canada) each with its own elected legislative assembly and appointed legislative council. The Maritime Provinces were, unti11867, established and developed by prerogative instruments. Nova Scotia (which until 1784 included New Brunswick) had an elected assembly in 1758. Prince Edward Island followed in 1773, and by 1784 New Brunswick had its own elected assembly. Finally, by Commission under the Great Seal, Newfoundland was given an elected assembly in 1832. In all cases, the elected assembly was in addition to an appointed council. With the establishment of these assemblies and councils, we may begin a study of the law in Canada relating to the privileges, powers, rights, and immunities of the Houses of Parliament and the legislatures, and of their Members. 2 3 4 5

"...And whereas it is at present inexpedient to call an Assembly...." See the Quebec Act, 14 George 3, c. 83, clause XII (U.K.), (reproduced in R.S.C. 1985, appendices). 14 Geo. 3, c. 83 (U.K.). See Kielley v. Carson (1842), 4 Moo. P.C.C. 63,13 E.R. 225 (P.C.); and text at notes 6 to 10. See also Chenard & Co. v. Arrisol, [1949] A.C. 127 (P.C.). Bourinot, Parlianzentazy Procedure and Practice, 1st ed. (Montreal: Dawson Brothers, 1884), p. 12. [In order to avoid swelling the footnotes, once a complete book citation has been given, subsequent references will be to author only; although various editions of some texts exist, edition numbers will be shown only where more than one edition was used by the author. For a full text citation refer to the Bibliography.]

Introduction

3

Historical and constitutional basis of parliamentary privilege in Canada From the time a legislative assembly was first established in Canada, in 1758 in Nova Scotia, the common law accorded to it and to those taking part in its deliberations all the power considered necessary for a legislature and its Members to perform their legislative work. In this way, the Members had freedom of speech in debate and the right of regulating and ordering their own proceedings, and were protected from being arrested in connection with civil cases, because the legislature had first call on their services and attendarice.8 It was said in an early opinion that they had the power to imprison for such acts of contempt in the face of the assembly as produced disturbance and interruption of their proceedings.7 While such custom and practice developed in Upper and Lower Canada and continued in the Province of Canada, it was held in 1842 that colonial legislatures had no power to commit for contempt committed outside the assembly,8 and in 1866 it was held that they had no power to commit for contempt even when committed in the assembly.9 In other words, "protective and self-defensive powers only, and not punitive powers, are necessary.,P 10 The early legislatures had to rely on their inherent power because they were the assemblies of colonies: the legal instrument creating them, a royal proclamation or an Act of the British Parliament, would not normally provide for the same immunity or power as the British House of Commons, because that would not be compatible with their dependent status. It was not until 189611 that the legislatures of the provinces received judicial confirmation of the authority to take on much the same privileges as the Constitution Act, 1867, s. 18 provided for the Canadian House of Commons. That same court (Fielding v. Thomas) pointed out 6

7 8

9 10 11

This opinion has been attributed to Earl Bathurst, December 30, 1815. See Documents of the Canadian Constitution (Toronto: Oxford University Press, 1918), ed. W.P.M. Kennedy, p. 297. See also A. Todd, Practices & Privileges of the Houses of Parliament. (Toronto: Rogers J. Thompson, 1840), p. 15. Ibid. No practice appears to have built up in Newfoundland by the time the first case was heard in 1842, and thus the Privy Council held that the assembly had no power to commit for contempt not committed in the face of the assembly; see Kielley v. Carson, supra, note 4. In 1845 the New Brunswick Court of Appeal held that the House of Assembly did not have the power to arrest and imprison the publisher of a libel concerning a Member of the House touching his conduct and proceedings in the House; see Hill v. Weldon (1845), 5 N.B.R. 1 (CA). Doyle v. Falconer (1866), L.R. 1 P.C. 328 (Dominica). Barton u. Taylor (1866), 11 App. Cas. 197 at 203. Fielding v. Thomas, [18961 AC. 600 (N.S.). In 1876, Nova Scotia and Manitoba each passed an act providing for the same privileges enjoyed by the House of Commons of Canada; see S.N.S. 1876, c. 22; S.M. 1876, c. 12. Similar acts passed in Ontario and in Quebec in 1870 had been disallowed.

4

CHAPTER 1

that from 1865, the early elected legislatures in Canada (such as that of Nova Scotia) had, by virtue of section 5,of the Colonial Laws Validity Act, 1865,12 the authority to legislate their privileges.13 Lord Halsbury said of section 5 "the power seems sufficient for the purpose," i.e. for enabling a colonial legislature to confer on itself the privileges of the British Houses of Parliament. If this was true for Nova Scotia before it became a province of Canada, it was true as well for all the other colonies after 1867—except British Columbia, where only a minority of the council were elected until 1870, and Newfoundland between 1933 and 1949, when there was a "Commission of Government" appointed by the U.K. Fielding v. Thomas added, that by s. 92 of the Constitution Act, 1867 (British North America Act, 1867, as it then was), the provincial legislature may amend its constitution and that parliamentary privileges are part of the constitution. With regard to the Houses of Parliament, however, since neither s. 91 nor any other section of the Constitution Act, 1867 provided for Parliament to amend its constitution, it may have been thought expedient to make express provision for the privileges, immunities, and powers of the Houses of Parliament, which was not necessary in the case of the existing provincial legislatures. The Constitution Act, 186714 provides that Parliament may enact its own privileges, and pursuant thereto the Parliament of Canada Act15 clearly spells out that the privileges of the British House of Commons may apply to each House of the Parliament of Canada.

Principal subject of text — Privileges of House of Commons While consideration is given to the provincial and territorial legislatures and their Members, the principal subject of this text will be privileges, immunities, and powers of the Houses of Parliament and their Members, particularly those of the House of Commons. Whatever immunities are held and enjoyed by the House of Commons and its Members are also held and enjoyed by the Senate and its Members.

13

14 15

28 & 29 Victoria, c. 63 (U.K). "5. Every colonial legislature shall have, and be deemed at all times to have had, full power within its jurisdiction to establish courts of judicature, and to abolish and reconstitute the same, and to alter the constitution thereof, and to make provision for the administration of justice therein; and every representative legislature shall, in respect to the colony under its jurisdiction, have, and be deemed at all times to have had, full power to make laws respecting the constitution, powers, and procedure of such legislature; provided that such laws shall have been passed in such manner and form as may from time to time be required by any Act of Parliament, letters patent, Order in Council, or colonial law for the time being in force in the said colony." 30 & 31 Victoria, c. 3, s.18 (U.K.) (as enacted by the ConstitutionAct, 1982 which came into force April 17, 1982; formerly the British North America Act, 1867). R.S.C. 1985, c. Rl, s. 4

Introduction

5

Position in the provincial legislatures With respect to the provinces, the Constitution Act, 1867 provides16 that the provincial legislatures may exclusively make laws to amend their constitutions (save the Office of the Lieutenant Governor). Matters such as the independence of the assembly from outside interference, its protection, and the protection of its Members from insult while in the discharge of their duties are matters classed as part of the constitution of a province.17 Accordingly, each provincial legislature would have the authority to legislate much the same immunity as the Commons of Canada, and all of the provinces have done so.18 On the other hand, there is some question whether the authority of the Canadian Commons to provide its Members with an immunity from being called as a witness in a criminal proceeding and with the freedom from criminal prosecution for what they say in debate lies with the legislatures as well. At least this was the view of the Court of Appeal of Ontario in 1978 in Reference Re Legislative Privilege (see infra, Chapter 3, Privilege of Freedom of Speech). The reason given was the limits on the constitutional competence of the legislature: only Parliament may legislate in respect of criminal law and procedure. In Fielding v. Thomas, Lord Halsbury pointed out that section 5 of the Colonial Laws Validity Act, 1865 enabled the pre-Confederation legislatures (such as that of Nova Scotia) to confer upon themselves the privileges of the British House of Commons, and by s. 88 of the Constitution Act, 1867 the constitution of the Legislature of the Province of Nova Scotia was (subject to the provisions of that Act) to continue as it existed at the union (1867) until altered by authority of the Act. Therefore, on that authority at least, the legislature of the provinces at the union in 1867 would seem to have the power to legislate the same privileges as those of the House of Commons in Ottawa.

Position in the legislatures of the territories On the other hand, the Legislatures of the Yukon Territory and the Northwest Territories are creatures of federal statute, and that statute does not provide them with many specific immunities and powers, nor 16 17 18

S. 45, 41. Fielding u.Thomas, supra, note 11, at 610. The four Maritime Provinces—Nova Scotia, New Brunswick, Prince Edward Island, and Newfoundland—have legislated the same privileges as those of the Canadian House of Commons. British Columbia has legislated the same privileges as those of the British Commons in 1871. Three other provinces—Ontario, Manitoba, and Saskatchewan—provide saving clauses, i.e. the Acts setting out a list of their privileges are not to be construed to deprive the assembly or Members of any rights or privileges that the assembly might, but for the fact that they have been entitled to, exercise and enjoy. Alberta legislated the same privileges as those of the British Commons. Quebec has spelled out in legislation a list of its privileges and what constitutes a breach (R.S.Q. 1993, 29, c. A-23.1).

6

CHAPTER 1

with the authority for the legislatures to enact privileges and immunities. Since these legislatures cannot amend their own constitution and thus may not have the same competence as the provinces to legislate privileges, in that respect they must rely on the common law. It provides that things that are necessary pass as incident, that is to say, legislatures are given such privileges and immunities as are incidental and necessary to enable them to perform their legislative functions. While this excludes the power to commit for contempt, they nevertheless have many of the privileges of the provincial legislatures, including the power, though limited, to discipline their own Members, i.e. Kielley u. Carson would apply.19 Furthermore, a territorial assembly may expel where jurisdiction as to disqualification of a Member has been made the subject of statutory direction 20 Thus, the privileges and immunities enjoyed by Members of the legislatures of the territories are not the same as those enjoyed by Members of the Houses of Parliament or the provincial houses of assembly.

Freedom of speech in the House of Commons The Members of Parliament enjoy the same freedom of speech enjoyed by the British House of Commons. This freedom is described in Article 9 of the Bill of Rights, 1689:21 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.

This gives an absolute privilege in law: when speaking or engaged in a proceeding in Parliament, a Member of either House of Parliament is immune from civil or criminal prosecution, including prosecution under the Official Secrets Act.

Freedom of speech in the legislatures of the provinces What is not absolutely clear is whether it is constitutionally possible for provinces to apply the full effect of Article 9 of the Bill of Rights, 1689 to their legislatures. If they could, their Members could enjoy the same immunity from both criminal and civil prosecution while speaking or engaged in a proceeding of the legislature as a Member of Parliament enjoys. 19

20 21

Elected members of municipal councils do not enjoy the same freedom of speech as do Members of legislatures; their privilege is qualified; that is to say; they are free to speak during council meetings without fear of civil prosecution only if they speak without malice. See infra, Chapter 4. Chamberlist v. Collins (1962), 34 D.L.R. (2d) 414 (Norris, J.A.). 1 Will. & Mar. (2nd Sess.), c. 2, s. 1 (U.K.) [1689 according to the present calendar].

Introduction

7

While the provincial legislatures may legislate unto themselves and their Members the same privileges as of the Canadian House of Commons and its Members, Fielding v. Thomas said, "they think it is sufficient to say that the legislature could relieve Members of the House from civil liability for acts done and words spoken in the House whether they could or could not do so from liability to a criminal prosecution."22

Privileges and the criminal law The privileges of the federal Members also include the right to ignore a summons to appear as a witness in a criminal proceeding, a matter over which a provincial legislature may not normally legislate. But the history of this freedom from being subpoenaed to attend court proceedings shows that its purpose did not relate to any particular court or tribunal, but was simply to save Members from being prevented from attending the sittings and doing their duty in Parliament. Therefore, while they may not otherwise legislate in respect of criminal law or criminal procedure, the provincial legislatures that have adopted the privileges of the Canadian House of Commons have nevertheless adopted the same comprehensive freedom of speech in debate, that is to say, impunity from being summoned as a witness in a criminal case, immunity from having their proceedings in Parliament questioned in a criminal court, and freedom from criminal prosecution for remarks made in debate. It has been said that "the validity of these Acts is beyond question. "23 Judicial opinion has been divided on this point (see Chapter 4). It should be noted, however, that once a Member attorns to the jurisdiction of the court, civil or criminal, he is like any other witness and is required to answer all questions relating to matters that do not have a nexus with a parliamentary proceeding (see also Chapter 4). Whatever the parliamentary privilege of freedom of speech includes, it is now part of the Constitution (NB. Broadcasting v. Nova Scotia Speaker—see Chapter 14).

Publication outside Parliament A recurring theme in this text will be to submit that while all necessary protection is afforded the Member in his parliamentary work, it is correct in law to say that the Member speaks or otherwise publishes outside the House at his peril. When the Member is occupied in something 22

Supra, note 11, at p. 613. Similar doubts might have been raised as to the federal Parliament's power to affect civil rights when legislating on privilege, but for s. 18 of the Constitution Act, 1867. See Lefroy, Canada's Federal System (Toronto: Carswell, 1913), p. 159. 23 A.B. Keith, Responsible Government in the Dominions, 2nd ed. (Oxford: Clarendon Press, 1928), vol. 1, p. 370.

8

CHAPTER 1

closely and necessarily related to a proceeding in Parliament, however, this activity will be accorded absolute privilege. For example, correspondence with an officer of the House relating to a question to be put on the Order Paper is undoubtedly a "proceeding in Parliament" for purposes of affording it absolute legal privilege, but correspondence that has no connection with a proceeding in Parliament and that is tabled in the House will not by that act alone be afforded parliamentary immunity.

Proceedings in Parliament When is a Member of Parliament or a Member of a legislative assembly taking part in a "proceeding in Parliament" so as to have parliamentary privilege or immunity for what he says or does? In 197324 the Ontario Court ofAppeal said that for Members to issue a press release and send a telegram containing what they had said in Parliament was an extension of a "proceeding in Parliament," and added that such acts "were no more and no less than the legitimate and lawful discharge...of their duties in the course of parliamentary proceedings...." Subsequently, in a case of contempt of court25 arising from statements made by a Member of Parliament outside the House, a Quebec Superior Court disagreed with the decision of that same Ontario Court of Appeal and said that statements outside the House have no parliamentary immunity. The Quebec Court of Appeal upheld this decision. While it seems that a decision of the Supreme Court of Canada will be required to settle these issues, that court appeared to politely disavow the decision of the Ontario Court of Appeal in the Roman case, regarding statements made outside the House, while resolving the case on other grounds (see Chapter 5).

Other privileges The law also provides limited exemptions to Members of Parliament, since the legislative body has first call on them. Members are exempt from jury duty and enjoy an immunity from arrest in civil process and thus are not amenable to civil contempt. But, although they need not otherwise take notice of a subpoena to testify in either a civil or a criminal proceeding, they are like any other litigant if sued for a civil wrong or charged with a criminal offence.

24 25

Roman Corp. u. Hudson's Bay Oil & Gas Co. (1973), 36 D.L.R. (3d) 413, affd 23 D.L.R. (3d) 292, which aff'd 18 D.L.R. (3d) 134 (S.C.C.). Re Ouellet (No. 1) (1976), 67 D.L.R. (3d) 73, aff'd 72 D.L.R. (3d) 95 (Que. CA). In Re Borowski (1971), 19 D.L.R. (3d) 537 (Man. Q.B.), the Minister of Transport of the province of Manitoba was convicted of contempt of court for remarks made in his office in the Legislature Building. The defence of parliamentary privilege was not raised, however.

Introduction

9

Householder mailings When the House orders the publication of any "report, paper, votes and proceedings," that publication has, by statute, absolute legal privilege.26 But when a Member sends out his "householder mailing," while the staff of the House prints it, it is the Member who publishes it to his constituents, rather than the House, because the House does not order its publication. Thus the Member cannot claim parliamentary privilege for its contents.

Jurisdiction to adjudicate privilege A further problem relating to this branch of the law is the question of who has jurisdiction to adjudicate matters of privilege: the courts or the House of Commons (or the Senate or the provincial legislatures, as the case may be). Chapter 13 attempts to deal with this issue. While some Members of the House of Commons feel that the House can still define its privileges,27 it is closer to the mark to say that the House may only determine when its privileges have been breached. It will be seen that parliamentary privilege is part of the general and public law of Canada, and that the courts may judicially take notice of and interpret it as they would any other branch of the law.28 Finally, the advent of the Canadian Charter ofRights and Freedoms (Charter) in 1982 has compelled a new look at the subject and thus Chapter 14 is devoted to examining the effect of the Charter on the privileges, powers, and immunities of our legislative bodies.

26 R.S.C. 1985 c. P-1, s. 7. In 1994 the Standing Orders were changed for "Votes and Proceedings" to read "Journals". 27 See debate in the House of Commons in respect of the decision of Evans C.J.H.C., in Re Clark and A.G. Can. (1977), 81 D.L.R. (3d) 33, in Debates, Nov. 16, 1977 (Chapter 13). 28 Parliament of Canada Act, supra, note 15, s. 4, 5, 6.

CHAPTER 2

Parliamentary Privilege — A General View

Parliamentary privilege is a fundamental right necessary for the exercise of constitutional functions. It applies to anything a Member "may say or do within the scope of his duties in the course of parliamentary business."' In any constitutionally governed country, the privileges, immunities, and powers of its legislature as a body and the rights and immunities of the Members of such bodies are matters of primary importance. It is obvious that no legislative assembly would be able to discharge its duties with efficiency or assure its independence and dignity unless it had adequate powers to protect itself and its Members and officials in the exercise of their functions.2 A privilege in the legal sense is an exemption from some duty, burden, attendance, or liability to which others are subject. To determine what constitutes parliamentary privilege3 in the Senate and House of Commons, we are directed by s. 18 of the Constitution Act, 1867 and s. 4 of the Parliament of Canada Act to the privileges in the British House of Commons in 1867: 18. 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 byAct 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. 4. The Senate and the House of Commons respectively, and the members thereof respectively, hold, enjoy and exercise,

2 3

O'Connor J.A., R. v. Bunting (1885), O.R 524 (CA) at 565. Bourinot, Parliamentary Practice & Procedure, 4th ed., p. 37. The term "parliamentary" privilege is a little misleading in that it is each House and not Parliament in toto that claims the special rights and powers.

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(a) such 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, so far as the same are consistent with and not repugnant to that Act; and (b) such privileges, immunities and powers as are from time to time defined by Act of the Parliament of Canada, not exceeding those at the time of the passing of such Act held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom and by the members thereof respectively. This will be the subject of Chapters 4 to 11; Chapter 12 will examine the actual practice in the House.

General definition Parliamentary privilege, which is an important part of the law and custom of Parliament, is part of the general and public law of Canada.4 Parliamentary privilege is the necessary immunity that the law provides for Members of Parliament, and for Members of the legislatures of each of the ten provinces and two territories, in order for these legislators to do their legislative work. It is also the necessary immunity that the law provides for anyone while taking part in a proceeding in Parliament or in a legislature. In addition, it is the right, power, and authority of each House of Parliament and of each legislative assembly to perform their constitutional functions. Finally, it is the authority and power of each House of Parliament and of each legislative assembly to enforce that immunity and to protect its integrity. The legislative body needs this legal protection or immunity to perform its function and to defend and vindicate its authority and dignity. The Members of the legislative body enjoy these rights and immunities because the legislature cannot act or perform without the unimpeded use of the services of its Members.5 4 5

Parliament of Canada Act, R.S.C. (1985), c. P-1, s. 5. This was the definition used by Winkler J. in Speaker of the Legislative Assembly of Ontario v. Leah Casselman and other persons obstructing access to, or egress from, the Legislative Precinct, Ontario Court of Justice (General Division), March 18,1996, file No. 96 - MU - 1408, Toronto, taken from the 1982 (1st) edition. Definition by Erskine May Erskine May's Treatise on the Law, Privileges, Proceedings and Usage of Parliament sets out at p. 69 of the twenty-first edition: Parliamentary privilege is the sum of the peculiar rights enjoyed by each House collectively as a constituent part of the High Court of Parliament, and by Members of each House individually, without which they could not discharge their

Parliamentary Privilege — A General View

13

A practical definition If someone improperly interferes with the parliamentary work of a Member of Parliament — i.e. any of the Member's activities that have a connection with a proceeding in Parliament—in such a case that is a matter involving parliamentary privilege. An offence against the authority of the House constitutes contempt.

Subordinate or ancillary nature It will be seen that a distinctive mark of a privilege is its ancillary character or subordinate nature: it is a means to accomplish a purpose or fulfil a function. In order to perform its functions as a legislative body, a legislature requires absolutely certain privileges, rights, or immunities; that is to say, it cannot carry on unless it has them.

Rights of Members are subject to procedures of House6 While it will be seen that the Member enjoys all the immunity necessary to perform his parliamentary work, this privilege or right, such as freedom of speech, is nevertheless subject to the practices and

(footnote 5, cont'd) 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. Definition by Redlich The particular privileges of the British House of Commons are defined as: The sum of the fundamental rights of the House and of its individual Members as against the prerogatives of the Crown, the authority of the ordinary courts of law and the special rights of the House of Lords. Redlich, The Procedure ofthe House of Commons, 1908, vol. 1, p. 46. Definition by Hatsell The privileges of Parliament, according to Hatsell, are rights that are "absolutely necesaary for the due execution of its power." Hatsell, Precedents of Proceedings in the House of Commons, 3rd ed. (London: T. Payne, 1976), vol. 1, p. 1. It has been noted that they are also subject to party discipline, even that of the Executive: "I think the present doctrine of parliamentary privilege rests on a set of presumed facts that have not really been true since the reign of William III. It assumes that Parliament and the Executive (Crown) are two opposed and largely separate bodies whereas, of course, the degree of interaction and overlap is really very considerable indeed. I think the paradigm case which would illustrate this—and I stress that I am speaking entirely hypothetically—is a breach of a backbencher's privilege by a Government whip, by means, shall we say, of use of force, blackmail, or anything else that ought not to go on within the precincts. That is just the sort of exercise of executive power that parliamentary privilege was originally meant to protect us against, but, of course, if it is done by a representative of the Parliamentary majority it is extremely hard to use the doctrine of parliamentary privilege as a protection against it." (Earl Russell, as stated before the Committee on Standards in Public Life (Nolan Committee), February 23, 1995, First Report, May 1995, C.M. 2850, vol. II, p. 493, U.K.).

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procedures of the House.7 Thus allegations of breach of privilege by a Member in the House of Commons that amount to complaints about procedures and practices in the House are by their very nature matters of order.8 Because of its nature, a true question of privilege should arise in the House only infrequently. To constitute "privilege" generally there must be some improper obstruction to the Member in performing his parliamentary work in either a direct or constructive way, as opposed to mere expression of public opinion or of criticisms of the activities of the Members (for example, threatening a Member for what he said in debate, contemptuous reflections on Members, allegations of improper conduct during a proceeding in Parliament, or allegations that a chairman was biased).

Persons engaged in a proceeding of Parliament are also protected Finally, while engaged in a proceeding in Parliament, every person is clothed with the same immunity as the Member and receives the same protection of the House.

Breach of privilege When any of these rights or immunities is disregarded or attacked by any individual or authority and raised in the House of Commons, the offence is called a "breach of privilege" and is punishable under the law of Parliament as a contempt of Parliament.

Contempt of Parliament Contempt of Parliament may be more aptly described as an offence against the authority of the House. As in the case of a Superior Court, when by some act or word a person disobeys or is openly disrespectful of the authority of the House of Commons or Senate or of their lawful commands, that person is subject to being held in contempt of the House of Commons or Senate as the case may be; therefore it will be seen that the Senate and House of Commons have the power or right to punish actions that, while not appearing to be breaches of any specific privilege, are offences against their authority or dignity. These may include disobedience to their legitimate commands or libels upon them, their officers, or their Members. Such actions, though often called "breaches of privilege," should more properly be considered "contempts." While it will become evident that one of the corporate privileges of the House is the power to punish for contempt, there is no 7 8

See Debates, June 18, 1981, p. 10738. See Chapter 12.

Parliamentary Privilege — A General View

15

restriction on what may constitute a "contempt of Parliament." It will be seen in Chapter 13, however, that the "breach" in question is brought to the attention of the House by means of a "question of privilege."

Corporate privileges and individual privileges Individual privileges of Members of the Senate and House of Commons are the absolute immunity they require to perform their parliamentary work; corporate privileges are the necessary means for each House to effectively discharge its functions. Thus a breach of any privilege constitutes a contempt of the House rather than of the Member, because the Member would not require the privileges if he or she were not a Member. Nevertheless, such individual privileges as freedom of speech are considered to belong primarily to the Member and only indirectly to the House itself. The individual privileges are freedom of speech,9 freedom from arrest in civil process,19 exemption from jury service,11 and the privilege relating to Members summoned as witnesses.12 While there is the general freedom from being molested while attending to his work in the House, this amounts to a contempt of the House. The corporate or collective privileges13 of the Senate and of the House of Commons are the power to punish for contempt (or its penal jurisdiction); the right to regulate its own constitution; the right to regulate its own internal affairs free from interference, which includes the right to discipline its own Members; the right to institute inquiries and call for witnesses (persons, papers, and records); and the right to settle its own code of procedure. Generally speaking, it will be seen that the powers, rights, immunities, and privileges of both the elected assembly and its Members exist to enable the Members to attend the assembly without disturbance, to enable the assembly to perform its functions, and to guard the functions of Parliament undisturbed.

Origin of privilege Some privileges rest solely upon the law and custom of Parliament, while others have been defined by statute. Otherwise, parliamentary privilege would have to be found in the common law.14

9 11

12 13 14

See Chapter 3. See Chapter 9. Ibid. Ibid. See Chapter 11. See W.P.M. Kennedy, Documents of the Canadian Constitution, and Kielley v. Carson, supra, Chapter 1.

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Origin of U.K. privileges The origin of privilege in England can be traced to Edward the Confessor, and that of its penal jurisdiction to the medieval concept of Parliament as primarily a court of justice, the High Court of Parliament, when the court of last resort consisted of the Crown and the lords temporal. The Crown's entourage enjoyed the protection of the Crown—the King's peace. This protection was claimed by the Commons separately until its assertion became usage and custom and eventually part of the general and public law of the land (see also Chapter 11).

Origin in pre-Confederation Canada In the absence of a specific grant from the U.K. Parliament, the rights, powers, and immunities attached to a colonial legislature and its Members arose from the common law; i.e. they were given the authority and power that are necessarily incidental to a legislature, which excludes, inter alia, the power to punish for contempt.lb It will be seen that the power to punish for contempt arises not from any legal incident of the legislative authority, but in the case of the British House of Commons, by virtue of ancient usage and prescription. Having been part of the former High Court of Parliament and following the separation into two Houses of Parliament, the British House of Commons retained this power by asserting it until it became part of the law of the land, and by virtue of its judicial function, i.e. when it hears matters of contempt, it is the High Court of Parliament. The Canadian Houses of Parliament have the same power by virtue of legislation.16

Origin for Parliament of Canada Therefore, the origin of the rights, immunities, and privileges of the Senate and the House of Commons and of their Members is partly from the common law and partly statutory, from the Constitution Act, 1867, s. 18, as amended in 1875:17 18. 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. 15 18 17

Kielley u. Carson, supra, note 4; U.K petition, May, 21st ed., p. 69-70. S. 18 of the Constitution Act, 1867, and s. 4 of the Parliament of Canada Act; see Appendix. 38 & 39 Victoria, c. 38 (U.K.).

Parliamentary Privilege — A General View.

17

When originally enacted in 1867, s. 18 read as follows: 18. 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. Pursuant to s. 18, s. 4 of the Parliament of Canada Act was enacted: 4. The Senate and the House of Commons respectively and the members thereof respectively, hold, enjoy and exercise, (a) such 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, so far as the same are consistent with and not repugnant to that Act;18 and (b) such privileges, immunities and powers as are from time to time defined by Act ofthe Parliament of Canada, not exceeding, those at the time of the passing of such Act held, enjoyed and exercised by the Commons, House of Parliament of the United Kingdom and by the members thereof respectively.19 Thus, while s. 18 as amended in 187520 provided the Canadian Parliament with authority to define their privileges without recourse to those enjoyed by the U.K. in 1867, the definition that we find in s. 4 of the Parliament of CanadaAct reverts to 1867 because s. 4 was passed in 1868. While authority exists to define by law what these privileges are,21 in order to determine what the powers, rights, immunities, and privileges of the Senate and House of Commons in Canada are, we must determine what the powers, rights, privileges, and immunities of the British House of Commons were in 1867.

Distinction between U.K. and Canadian pre-1867 parliamentary privilege By Section 18 of the Constitution Act, 1867 and section 4 of the Parliament of Canada Act, the Senate and House of Commons may call 18 19

20

As originally enacted in 1868 by 31 & 32 Victoria, c. 23, s. 1 (Cam), The present section 4, including the wording set out in paragraph (b), is set out in a Canadian statute, R.S.C. (1886), c. 2, s. 3. However, no statute can be found that was passed in Canada between 1868 and 1886 enacting what is now contained in paragraph (b). The wording of this paragraph was obviously taken from s. 18 of the Constitution Act, 1867. Supra, note 17.

21 Ibid.

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upon the lex et consuetudo parliamenti for support and authority, which carries with it the penal power of contempt, the keystone of parliamentary privilege. This, it will be seen, is the distinguishing feature of the privileges enjoyed by the Houses of Parliament of Canada and their Members since 1867, as opposed to the parliamentary privileges enjoyed by the Legislature of Nova Scotia in 1758 and by the Legislatures of Upper Canada and of Lower Canada and their Members from 1792, the Legislature of the Province of Canada from 1841, and, for that matter, the privileges enjoyed by all of the provinces prior to joining Confederation.

Speaker's petition In the U.K. A custom dating from the sixteenth century in the U.K. relates to the petition the Speaker makes at the commencement of every Parliament. In his first edition,22 May tells us that the privileges of the British House of Commons stem from a practice that grew up not as a result of being legally incidental thereto but simply as a practice: The Lords have ever enjoyed them (the privileges)...but a practice has obtained with the Commons, that would appear to submit their privileges to the royal favour. At the commencement of every Parliament since the 6th of Henry Eighth, it has been the custom of the Speaker: 'In the name, and on behalf of the Commons, to lay claim by humble petition to their ancient and undoubted rights and privileges; and especially to freedom from arrest and molestation for their persons,23 servants,24 and estates,25 to freedom of speech in debate; and to free access to Her Majesty whenever occasion may require it; and to the most favourable constructions of all their proceedings:26

n Original purpose of early privileges It is evident that the original purpose of such rights or privileges of freedom of speech and freedom from arrest stems from a desire not to incur the royal disfavour. Similarly, it will be seen that freedom of speech was not acquired to ward off libel actions by aggrieved third parties, because the publication of the debates of the House was in itself not permitted.

22 23 24 25 26

1844. Claimed until 1866. Retained until August 5, 1892, although it had been legislated out of existence in the eighteenth century. Omitted since November 5, 1852. Page 44.

Parliamentary Privilege — A General View

19

n Present form of petition in UK. The form of the petition above was changed from time to time in the U.K. until 1892; it now reads as follows: In the name, and on behalf of the Commons, to lay claim by humble petition to their ancient and undoubted rights and privileges; particularly to freedom of speech in debate, freedom from arrest, freedom of access to Her Majesty whenever occasion shall require; and that the most favourable construction should be placed upon all their proceedings.27

In Canada n Form of petition in Upper and Lower Canada in 1792 The form of the petition used in the Assembly of Lower Canada cast a wide net, asking "generally all the like privileges and liberties as are enjoyed by the Commons of Great Britain our Mother Country."28 It will be seen that it had no such powers.29 In Upper Canada, the Speaker of the Assembly correctly petitioned for "freedom of debate, access to the person of His Excellency and be privileged from arrest?"

n Form of petition in Canada in 1841 By the time the Province of Canada was created in 1841, the Speaker omitted the claim for privilege from arrest and"... [laid] claim to all their (Members') rights and privileges particularly...liberty of speech...access to Your Excellency's person on all seasonable occasions, and that all their proceedings may receive from Your Excellency the most favourable interpretation.31

n Form of petition in 1867 Finally, immediately after Confederation, the Speaker used this form: If, in the performance of those duties, I should at any time fall into error, I pray that the fault may be imputed to me, and not to the Commons, whose servant I am, and who through me, the better to enable them to discharge their duty to their Queen and Country, humbly claim all their undoubted rights and privileges, especially, 27 28 29 30 31

May, Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 21st ed., ed. C.J. Boulton (London: Butterworths, 1989), p. 70-1. Lower Canada Journal (1792), p. 16. Chapters 1, 11. Upper Canada. Journals, September 18, 1792, p. 5. Journals of the Legislative Assembly of the Province of Canada, June 15, 1841, p. 3.

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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 interpretation.32

n Present form of petition in the Canadian House of Commons The present form is as follows: If, in the performance of those duties I should at any time fall into error, I pray that the fault may be imputed to me, and not to the Commons, whose servant I am, and who, through me the better to enable them to discharge their duty to their Queen and country, humbly claim 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.33

n Privileges are independent of petition Whatever may have been the origin and cause of this custom, and however great the concession to the Crown may appear, the privilege of the Houses of Parliament of Canada are nevertheless independent of the Crown, and are enjoyed irrespective of the traditional petition. Therefore, the Speaker of the Senate does not prejudice the position of the Senate or its Members by remaining silent while the Speaker of the House asks the Governor General for the privileges of the House.

No new privilege may be created by either House Privileges are beyond the control of either the Crown or any single power other than the Parliament of Canada. Thus, no new privilege may be created by the House of Commons, by the Senate, or by the Crown, because a new "privilege" would be part of the general and public law of Canada, and only Parliament may enact such laws. Similarly, a privilege may not be diminished, prejudicially affected, or repealed save by express statutory enactment to that effect.

32 Journals, November 7, 1867, p. 2-3. 33 Senate Debates, January 18, 1995, p. 3.

Parliamentary Privilege — A General View

21

Commencement of Members' privileges The privileges, rights, and immunities of the Member commence at the moment of the Member's official existence.34

When does a person officially become a Member?35 It is a general principle of British and Canadian parliamentary law that at the moment of the execution of the return of a writ by the

34

Bourinot, 4th ed., p. 42; Hatsell, vol. 1, p. 166. For purposes of the sessional allowance "a person shall be deemed to have become ...a member of the House of Commons on the day last fixed for the election of a member of the House of Commons for the electoral district represented by him" (Parliament of Canada Act, R.S.C. (1981), c. P-1, s. 55(2)). We also find that franking privileges for a person who is a Member of the House of Commons begin "on the day that notice of his election to serve in the House of Commons is given by the Chief Electoral Officer in an issue of the Canada Gazette..." (Canada Post Corporation Act, R.S.C. (1985), c. C-10, p. 35(5)). There is one other reference and this is s. 50 of the Constitution Act, 1867, which provides that "every House of Commons shall continue for five years from the day of the return of the writs for choosing the House (subject to be sooner dissolved by the Governor General), and no longer." For example, in regard to the general federal election of October 25, 1993, the writs bore the date of September 8th, they set forth October 25th as the polling day, and were "to be returnable on the 15th day of November, 1993." The person who on election night has obtained the largest number of votes is not yet a Member of the House of Commons. The returning officer must wait six days after the date of the official addition of the votes before he may send the return of the election writ to the Chief Electoral Officer (Canada Elections Act, R.S.C. (1985), c. E-2, p. 2, s. 189, 73). In the event he receives before that time notice of a recount by ajudge, the returning officer must again await the result of the recount. Furthermore that act also provides that "a premature return shall be deemed not to have reached the Chief Electoral Officer until it should have reached him in due course" (s. 191(2)). There is therefore provision for the return of the writ to be held up until a certain event(s) occurs during which period at least the person who received the largest number of votes is not, in law, a Member of the House of Commons. The practice in the past in Canada, which emanated in the U.K., was that "at the beginning of a parliament the return book, received from the Clerk of the Crown is evidence of the return of a member...". (Bourinot, 4th ed., p. 149; Anson, The Law and Custom of the Constitution, 4th ed. (Oxford: Clarendon Press, 1911, vol. 1, p. 62-63). In this way a person established his right to membership. Once the oath was administered, his title was perfected (Anson, idem). In Canada a person duly returned as a Member may not take his seat until he takes the oath of allegiance (Constitution Act, 1867, s. 128), i.e. the person must be a "Member" before he takes the oath. Custom and convention, however, now provide for a Member-elect to commence receiving the usual requisites as are necessary to allow a Member to perform his functions as soon as the Clerk of the House receives notice of his election from the Chief Electoral Officer. What the Clerk receives is a copy of an ordinary or special issue of the Canada Gazette in which the Chief Electoral Officer is required "to give notice of the name of the candidate so elected in the order in which the return was received by him" (Canada Elections Act, supra, s. 192(1)(b)). Once the Chief Electoral Officer 'gazettes' the name of the candidate elected, that person is a, Member' of the House of Commons, because at that point the provisions of the Canada Elections Act have been fulfilled; that person's election may now only be declared void following a petition to a court of competent jurisdiction under the provisions of the Dominion Controverted Elections Act, R.S.C. (1985), c. C-39; and, thirdly the House is then in a position to exercise one of its corporate privileges to determine his fitness to sit in the chamber for any reason other than one arising out of the conduct of the election. To put it another way, a person is a Member of the House of Commons when he is in a positiion to take the oath of allegiance required by s. 128 of the Constitution Act, 1867.

22

CHAPTER 2

returning officer the official existence of the Member, as such, commences.36 In parliamentary practice, the entry in the special edition of the Canada Gazette by the Chief Electoral Officer of the name of the person set out in the return commences the official existence of the Member.37 At that moment, according to Coke, "every man is obliged at his peril to take notice who are Members of either house returned of record."38 A Member of the House of Commons (and a Member of the Senate) may not take his seat until he takes the oath of allegiance.39

When does a person cease officially to be a Member of the House of Commons? A person ceases to be a Member of the House of Commons: 1.

when that person dies;

2.

when that person resigns in accordance with the provisions of the Parliament of Canada Act," sections 25 and 26;

3.

when the Speaker addresses his warrant to the Chief Electoral Officer for the issue of a writ for the election of a new Member (a) in the case of contested election, by virtue of the provisions of the Dominion Controverted Elections Act41, following the receipt by the Speaker of the report of the trial judges or the Supreme Court of Canada,

36 37

38 39 40 41

(Footnote 35 coned) If one interpreted s. 50 of that Act in the sense that the House of Commons does not exist until the day of the return of the writs for choosing the House, Members of the House of Commons could not exist until that day. This would be in keeping with the convention that once the House is dissolved, there cannot be any Members of the House. But once again, a person who was a Member on the date of dissolution is deemed to be a Member, for purposes of salary, until election day, and his franking privileges continue for ten days after dissolution. However, this point in time to start the official existence of a Member is not as tenable, because a person may not, within that date, be in law in a position to take the oath of allegiance, i.e. a recount could hold up the return of the writ by the returning officer until after the date that it is returnable. Therefore it is more reasonable to fix a time for each successful candidate to become a Member as the time that a person may take the oath under s. 128 of the Constitution Act, 1867. This is evident when one is dealing with the instance of a by-election. Bourinot, 4th ed., p. 42; Hatsell, vol. 1, p. 166. I.e. the Member may start to receive his indemnity, and the Member's franking privileges commence under the Canada Post Corporation Act, RS.C. (1985), c. C-10, s. 35(5). 4th Coke Institute 24 (1644). S. 128, Constitution Act, 1867. R.S.C. (1985), c. P-1. R.S.C. (1985), c. C-39, s. 70-2.

Parliamentary Privilege —A General View

23

(b) in the case of a Member who has been elected and returned to a legislative assembly, by virtue of the provisions of the Parliament of Canada Act,42 or (c) in the case of a Member who has accepted an office43; and 4. when by virtue of its corporate right to provide for its own constitution, which includes the right to determine whether Members are qualified to sit (though not to determine whether they have been properly elected) and the right to expel Members whom it considers unworthy as such,44 the House has by order declared that the seat of a Member is vacant and has ordered the Speaker to address his warrant to the Chief Electoral Officer for the issue of a writ for the election of a new Member.45

42

43 44 45

S. 22, 23, 24 (although the Act does not provide for any formal notice to be given to the Speaker; an exception is made in the case of a Member who accepts an office (s. 28: two Members may give notice). Parliament of Canada Act, supra, note 40, s. 28; Journals (July 2, 1981), p. 2778, and August 29, 1966, p.7856. See Chapter 12. For example, when Fred Rose was expelled in 1947 (see Chapter 11).

-

CHAPTER 3 Privilege of Freedom of Speech In effect in the early legislative assemblies in Canada It required a decision of the Privy Council in 18421 to eventually define the limits of pre-Confederation legislatures in respect of contempt, but there never was any quarrel that the Members of the legislative assemblies in the Maritime Provinces and in Upper and Lower Canada, from their inception, beginning in 1758, had the privilege of freedom of speech in debate. This statement may be made because that was the common law of the U.K.; i.e. freedom of speech is a necessary incident for the Members of a legislative assembly to perform their legislative functions, and that law carried over to British North America. There was no reported instance in Canada of anyone suggesting otherwise until 1917 in respect of remarks made in a proceeding of a provincial legislature (see infra, note 36 ), and not until 19712 in respect of the House of Commons, when there arose a case based in part on remarks made during a proceeding in Parliament. This chapter will deal with "freedom of speech and debate" in Parliament, whereas "proceedings in Parliament" will be covered in Chapter 5.

Necessity of freedom of speech While freedom of speech was probably a freedom of privacy in the beginning and conceived to protect the Members from the King's wrath,3 the view of this privilege, right, or immunity, since it has been permitted on sufferance, to hear and report what was said in Parliament4 is that "freedom of speech is a privilege essential to every free council or legislature."5 No one in the free world will argue to the contrary. 1 2 3 4

5

Kielley v. Carson (1842), 4 Moo. P.C.C. 63, 13 E.R. 225 (PC.). Roman Corp. u. Hudson's Bay Oil & Gas Co. (1971), 23 D.L.R. (3d) 292, aff'd 36 D.L.R. (3d) 413 (S.C.C.). E.g. Strode's case during 4 Henry 8; see infra, text at note 15. Until the nineteenth century in the UK., reporting what was said in Parliament was treated as contempt; until then, Members required this privilege only for the purpose of avoiding prosecution by the King. May, 19th ed., p. 73.

26

CHAPTER 3

What freedom of speech means The privilege of freedom of speech, though of a personal nature, is not so much intended to protect the Members against prosecutions for their own individual advantage, but to support the rights of the people by enabling their representatives to execute the functions of their office without fear of either civil or criminal prosecutions.6 "One of the first and greatest of its privileges is free speech and one of the advantages of legislative bodies is the right of exposing and denouncing abuses by means of free speech."7 The importance of this right is such that a Member of the Senate or the House of Commons may with impunity, and subject only to the rules, customs, and practices of the House of Commons, make statements in Parliament that would elsewhere be an infraction of the Official Secrets Acts While setting out the object of the privilege of freedom of speech, the Court of Appeal of Ontario made an assessment of the protection it afforded the Member: "to protect him from harassment in and out of the House in his legitimate activities in carrying on the business of the House."9 Freedom of speech as set out in Article 9 of the English Bill of Rights, 1689 was to protect the Members from possible deprivation by other branches of government—the Crown or executive—or indeed the courts of law. In 1985 the court in R. v. Murphyl° provided a more restricted view: What is meant by the declaration in Art. 9 is...that no court proceedings...having legal consequences against a Member of Parliament...or a witness before a parliamentary committee...are permitted which...have the effect of preventing (his) exercising of all speech in Parliament (or before a committee) or of punishing him for having done so. In other words, the phrase "impeached or questioned in any court or place out of Parliament" in Article 9 should be interpreted in the sense that the exercise of the freedom of speech given to Members of Parliament (and committee witnesses) may not be challenged by way of court (or similar) process having legal consequences for such persons because they had exercised that freedom. (p. 508).

6 7 8 9

io

See Cushing, p. 243. Bourinot, 4th ed. p. 48, citing Richards C.J. in Landers v. Woodworth (1878), 2 S.C.R. 158 at 197-8. See also Chapter 13. See statement of Attorney General and Minister of Justice, Debates, March 17, 1978, p. 3881-3. (1971), 23 D.L.R (3d) 292 at 299. (1985), 64 A.L.R. 498.

Privilege of Freedom of Speech

27

Hunt J. had earlier admitted evidence given in a parliamentary committee "where the purpose of the question is to invite the tribunal of fact in the curial proceedings to disbelieve the evidence given by such witness in the curial proceedings by reason of inconsistency" (p. 505). However, the effect of this judgment was substantially reversed by the Australian Parliamentary Privileges Act, 1987, which in general restored on a statutory basis the previous understanding of the meaning of Article 9.

Speaking in the House of Commons, Senate, or one of the committees of either House: statements made in debate In the U.K. Sir Thomas More was, in 1523, probably the first Speaker to at least lay claim to freedom of speech for Members of the House of Commons. There are three important mileposts leading to the claim of freedom of speech,11 eventually declared in Article 9 of the Bill of Rights,1689. "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."12

n Haxey's Case (1396-97) While "he would have been a bold King indeed who had attempted to stop discussion in the House of Lords"13 because that House had freedom of speech in debate, the British House of Commons was required to assert it until it became part of the lex parliamenti. Haxey's Case (1396-97) involved someone who had been a King's Clerk since 1382. He displeased the King by offering a bill to Parliament14 for reducing the excessive charge of the Royal Household, and was condemned as a traitor. On the accession of Henry IV, Haxey successfully petitioned the King in Parliament to reverse the judgment condemning him to death as a traitor as being "against the law and custom...in Parliament"; therefore, the highest judicial authority, i.e. the King and the House of Lords, in effect 11 12

13 14

See, however, May, 21st ed., p. 71 fn 2 for a new view of how the privilege arose. 1 Will. & Man (2nd Sess.), c. 2 (U.K.). The U.S. Constitution, Art. 1, s. 6, provides: "For any speech or debate in either House, they shall not be questioned in any other place." In Powell v. McCormack (1969), U.S.S.C. 23 L. Ed. (2d) 491, the U.S. Supreme Court said s.1 "is not confined to words spoken in debate, but also covers committee reports, resolutions, the act of voting, and other things generally done in a sitting". (Kilbourn v. Thompson (1880), 103 U.S. 168). Stubbs, Constitutional History III, cited in May, 19th ed., p. 74. He was not a Member, but it was a practice at the time for outsiders who witnessed parliamentary proceedings, such as Haxey, who was an official of the bench, to present petitions or bills.

28

CHAPTER 3

acknowledged the privilege. The Commons also successfully petitioned the King on behalf of Haxey to reverse the judgment. The whole legislature—Commons, Lords, and the King—agreed that the judgment against Haxey for having presented the bill was in derogation of the privileges of Parliament and was to "...be annulled...and of no force and effect."15

n Thomas Young's Case (1451-55) Thomas Young had, in 1451, proposed in the House of Commons that the Duke of York should be declared heir to the crown, and had been sent to the Tower by Henry VI. In 1.455, he petitioned the Commons to secure compensation for himself in respect of his imprisonment. The King, in reply, ordered the Lords of the Council to provide a remedy. Young's petition, although it invoked "the old liberte and freedom of the Comyns of this lande, had, enjoyed, and prescribed fro the tyme that no minde is...to speke and say in the House of their assemble, as to theym is thought convenient or reasonable without any maner chalenge, charge or punycion," was treated by the Commons as a private petition; and they appear to have made no complaint to the King about the violation of their collective privilege.16

nStrode's Case (1512) In 1512,17 Richard Strode, a Member of the House of Commons, was prosecuted in court for having proposed certain bills to regulate the tinners in Cornwall and was subsequently fined and imprisoned. This prosecution resulted in an Act15 being passed; entitled An Act respecting Richard Strode, it stated that Strode had agreed with others of the House of Commons in putting forth bills "the which here, in the High Court of Parliament, should and ought to be void," and went on to enact that "all suits and other proceedings against Strode and every other Member of the present Parliament or of any Parliament thereafter, for any bill, speaking or declaring of any matter concerning the Parliament to be communed and treated of, be utterly void and of no effect." A reading of the Act shows that it had a general application; but in 162919 the Strode Act was used as a means to obtain a judgment in the King's Bench against Sir John Elliott, Denzil Hollis, and Benjamin Valentine for their conduct (language and acts spoken and done) in 15 16 17 18 19

Chapters in Medieval Administrative History by Tout, vol. IV, p. 18-19, referred to in May, 19th ed., p. 74. Ibid., p. 24. 4 Henry 8. 4 Henry 8, c. 8 (Imp.). 5 Car. 1.

Privilege of Freedom of Speech

29

Parliament, based upon the false assumption that the Act had been a private statute for the relief of Strode and had no general application. Some years later, in 1667, the House of Commons resolved that the Act in question was a general law extending to all Members of both Houses and a "declaratory law of the ancient and necessary rights and privileges of Parliament." The resolution went on to say that the judgment of 1629 in question was illegal and against the privilege of Parliament. The House of Lords reversed the judgment in 1668. The issue was ultimately resolved by the declaration in the Bill of Rights, 1689.20

n Dillon v. Balfour Dillon v. Balfour, an 1887 decision of the Irish Courts,21 appears to be the only decision in the United Kingdom where an action was based entirely on what had been uttered in the House in the course of business. However, once the court was satisfied that the cause of action was based on words spoken in the House, it ordered that the writ and statement of claim be struck down because it disclosed no known cause of action.

In Canada n In the Houses of Parliament In 1858, while dealing with a controverted election matter in Lower Canada, Badgley J. observed that the sitting Member, Bellingham (who had in a written document made charges of personal corruption against the judge) "should have restricted his abuse to the floor of Parliament or of the Committee Room."22

n Roman Corp. v. Hudson's Bay Oil & Gas Co. In Canada, there is no case based entirely on what was said in the House of Commons or in the Senate in the course of business; but in 1971 there arose an action where one of the issues involved statements made in the House of Commons. In Roman Corp. v. Hudson's Bay Oil & Gas Co.,23 Roman Corporation had proposed to sell a substantial share of a uranium mine to a company controlled by non-Canadians, Hudson's Bay Oil and Gas. The Prime Minister, Mr. Trudeau, and the Minister of Energy, Mines, and Resources, Mr. Greene, made announcements in the House of Commons that were repeated in a telegram to Roman Corporation and in a press release, indicating that legislation would be enacted to prevent the control of Canadian uranium passing to non-Canadians. As a result, the 20 21 22 23

See the Appendix. 20 L.R. Ir. 600. In Re Controverted Election for County of Argenteuil-Bellingham v. Abbott (1858), 2 L.C.J. 13 (extra) at 24. (1973), 36 D.L.R. (3d) 413, aff'd 23 D.L.R. (3d) 292, which aff'd 18 D.L.R. (3d) (S.C.C.).

30

CHAPTER 3

transaction with Hudson's Bay Oil & Gas did not proceed. Roman Corporation brought an action in the Ontario courts against, inter alia, Trudeau and Greene for wrongful or attempted procurement of a breach of contract, conspiracy to harm Roman Corporation, intimidation, and unlawful interference with economic interests. In dealing with the statements uttered in the House of Commons, the Ontario Supreme Court applied the Bill of Rights, 1689. On an interlocutory application to strike out the statement of claim as disclosing no reasonable cause of action, Houlden J.24 held that as a result of the British NorthAmerica Act, 1867 (now Constitution Act, 1867), s. 18,25 and the Senate and House of CommonsAct (now Parliament of Canada Act):26 the privileges, immunities and powers of the members of the Canadian House of Commons includes those conferred by the Bill of Rights, 1689. The Bill of Rights, 1689, 1 Wm. & Mar. sess. 2, c. 2, under the heading of "Freedom of Speech" provides in Article 9 as follows: 9. 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. With regard to the statements made in the House of Commons, Houlden J. stated: The court has no power to inquire into what statements were made in Parliament, why they were made, who made them., what was the motive for making them or anything about them....27 Finally, he concluded by saying that: It seems to be well established that no person can have a judgment awarded against him in civil proceedings arising out of a speech made in the House of Commons.... The Court of Appeal of Ontario upheld the decision, and while dealing with statements made in the House, Aylesworth JA, speaking for the court, said this: As to the first category I respectfully agree with the learned trial Judge that the respondents cannot be called upon to plead to or to defend against, in any ordinary Court of law, the allegations concerning statements they made in the House of Commons. For 24 25 26 27 28

18 D.L.R. (3d) 134 at 138 (Ont. H.C.). As amended by 38 & 39 Victoria, c. 38, s. 1 (U.K.), now the Constitution Act, 1867. RS.C. 1952, c. 259, s. 4(a); now R.S.C. (1985), s. 4(a). Now the Parliament of Canada Act. Supra, note 23 at 139. The Speaker of the House of Commons said that the Bill of Rights, 1689 applies to the debates of the House, and Members' speeches or statements cannot be questioned elsewhere (Debates, April 2, 1981, p. 8891-2). Note 23.

Privilege of Freedom of Speech

31

more than one hundred years no such Court has entertained an action based upon such statements, declaring it to be within the absolute privilege of the House itself to deal with them as the House may see fit. I am, of course, at the moment confining my attention to statements made in good faith29 in the House and in the conduct of the business of the House, which is precisely the case as to the two statements immediately under consideration and described as falling within the first category I have outlined.30 On appeal to the Supreme Court of Canada, Martland J., speaking for the court while dismissing the appeal on a broader issue, said in respect of statements made in the House: Without dissenting from the views expressed in the Courts below as to the privilege attached to statements made in Parliament... 31 While dealing with a matter of contempt of court, the Superior Court of Quebec confirmed that whatever is said in debate is protected by parliamentary immunity and cannot be made the subject matter of any proceeding before the courts.32 Whatever freedom of speech applies in either House of Parliament also applies to committees of either House.33 When part of parliamentary business, therefore, whatever is said in the Senate or the House of Commons or in one of the committees is not actionable in the ordinary courts, whether or not it is said in good faith.

n In the provincial legislatures In 1917, Mt Armand Lavergne, a Member of the Quebec Legislative Assembly who was also a Member of the Garrison Club of Quebec, was expelled from that club on account of remarks he made on the floor of the Assembly.34 The National Assembly Act of Quebec provides in section 44 (then s. 133) that: No member of the Legislative Assembly shall be liable to any action, arrest, imprisonment or damages by reason of any matter or thing 29

30 31 32 33 34

This legal privilege of Members in these circumstances is absolute. The learned judge was inadvertently describing the privilege of municipal councillors. Members of municipal councils and bodies such as the Building Committee of the Ottawa Public Library have a qualified privilege when speaking at their meetings: see Ward v. McBride (1911), 24 O.L.R. 555 (C.A.); and Hopewell u. Kennedy (1904), 9 O.L.R. 43 (C.A.). (1971), 23 D.L.R. (3d) 292 at 296. (1973), 36 D.L.R. (3d) 413 at 419 [emphasis added]. Re Ouellet (Ab.1) (1976), 67 D.L.R. (3d) 73 (Que. CA). Bourinot, 4th ed., p. 47. Le Club de la Garnison de Quebec u. Lavergne (1918), 27 R.J.Q. 37, aff'd Lavergne v. Le Club de la Garnison de Quebec (1917), 31 R.J.Q. 349.

32

CHAPTER 3

brought by him by petition, bill, resolution, motion or otherwise, before the House or any of its committees, or by reason of anything said by him before such House. The bringing of such action, the causing or effecting of any such arrest or imprisonment, or the awarding of any damages, shall be deemed to be an infringement of the provisions of this subdivision. The Quebec Court of Appeal was of the view that the privilege of freedom of speech enjoyed by the Members was not limited by that section. As expressed by Chief Justice Sir Horace Archambault at p. 38: Sur le premier point, l'intime cite dans son factum l'article 133 des Statuts refondus qui dit qu'un depute de l'Assemblee legislative ne peut etre poursuivi, ni arrete, ni emprisonne, en raison de paroles par lui prononcees devant la Chambre. Le privilege de la liberte de parole d'un membre du parlement n'est pas limite aux cas mentionnes dans cet article. Il n'etait pas, d'ailleurs, necessaire qu'une loi fat edict& pour l'etablir. Son existence est essentielle a toute legislature independante. Non seulement un membre du parlement ne Nut pas etre poursuivi, ni arrete, ni encore moms emprisonne, mais it ne peut etre inquiete en aucune maniere, par qui que ce soit, en dehors du parlement. Le Parlement seul adroit de censurer l'un de sea membres pour conduite ou paroles derogatoires, ou censurables a quelque titre que ce soit. Le souverain lui-meme ne pourrait intervenir sous pretexte qu'un depute aurait prononce des paroles seditieuses, ou aurait propose une mesure entachee de trahison. It will be evident that the court was prepared to rely on the privileges possessed by the legislature as are reasonably necessary for the proper exercise of its functions and duties, i.e. the common-law principle that what is necessary passes as incident.35 The Chief Justice went on to trace the history of the privilege in Britain from Haxey's Case36 through to the famous Protestation of the Commons in 1621.37 The court referred to and in effect applied Article 9 of the Bill of Rights, 1689 to the proceedings of the Quebec Legislative Assembly. Art. 9: 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. It went on to point out that if a Member could not be brought before the courts for words said in the legislature, a fortiori the Member could not be expelled from a club for the same reasons. In citing Bourinot, the court noted that that author was of the same view: 35 36 37

See Kielley u. Carson, supra, note 1. See supra, text at note 14. Infra, Chapter 5.

Privilege of Freedom of Speech

33

Among the most important privileges of the members of a legislature is the enjoyment of freedom of speech in debate, a privilege long recognized as essential to proper discussion and confirmed as part of the law of the land in Great Britain and all her dependencies. This freedom of speech, of debate and proceeding may not be impeached or questioned in any court or place out of parliament. This freedom of speech was originally intended as a protection against the power of the Crown, but naturally was extended to protect members against all attacks from whatsoever source.38 In expelling the Member, the court held that the Garrison Club of Quebec had violated the parliamentary privilege of freedom of speech. The Court of Appeal concluded that this privilege of a Member of the legislature should not be restrained in any manner: "ce privilege...est une partie essentielle de la constitution qui nous regit."39

Freedom of speech and the criminal law Some seventy years later in Ontario, the Court of Appeal," in a reference concerning questions about a Member of the Legislature's privilege to refuse to divulge the source or content of a communication made to him by an informant, said, "One would not expect to find in the Legislative Assembly Act any statutory protection relieving a Member of the Legislative Assembly from his ordinary testimonial duty when called as a witness in a criminal proceeding because of the limits on the constitutional competence of the Legislature" (p. 534). While the issue before the court concerned communications between the Member and an informant or constituent,41 this suggests that a Member of a provincial assembly has the same duty as does a non-Member to attend as a witness in a criminal proceeding, and while there should answer all questions, whether or not they relate to what occurred in the assembly. The court referred to pertinent provisions of the Act, including s. 37 and s. 52: (37) A member of the Assembly is not liable to any civil action or prosecution, arrest, imprisonment or damages, by reason of any matter or thing brought by him by petition, bill, resolution, motion or otherwise, or said by him before the Assembly or a committee thereof. 38 39 40 41

At p. 40 of the report. At p. 40-1. Reference Re Legislative Privilege (1978), 18 O.R. (2d), 529 (Ont. C.A.). See also Chapter 7 in respect of the communication received from an informant. These are not covered by parliamentary privilege (see Debates, May 19, 1989, p. 1951-3), nor by the common law, Reference Re Legislative Privilege (1978), 180.R. (2d), p. 534 (Ont. C.A.).

34

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(52) Except so far as is provided by section 40, nothing in this Act shall be construed to deprive the Assembly or a committee member thereof of any right, immunity, privilege or power that the Assembly, committee or member might otherwise have been entitled to exercise or enjoy. The court found that the intent of s. 37 was to enact "the common law rule of freedom of speech so as to allow members to express their views in the assembly or a committee thereof without fear of an action for slander or libel,"42 and went on (at the same page) to say that "section 52 makes it clear that the Legislative Assembly Act does not exhaustively declare all the privileges enjoyed by the members." Since s. 52 of the Ontario Act permits reliance on the common law relating to the freedom of speech of a Member of a legislature such as the Legislature of Ontario, arguably the same freedom of speech found in the Bill ofRights, 1689 applies to those provincial legislatures that have not provided that their privileges are the same as those of the House of Commons. The freedom of speech enjoyed by the pre-Confederation legislature of the Province of Canada was the same as that set out in Article 9 of the Bill of Rights, 1689, i.e. it was inherent to the legislature to have full protection for what its Members said in debate, including freedom from criminal (Crown) prosecution, since that was the principal reason for the privilege. Furthermore, while a provincial legislature does have jurisdiction over its constitution, and this includes its privileges, what is also true is that a legislative assembly cannot function without its privileges, the most important of which is freedom of speech in debate. In 1896 the then highest tribunal held43 that the provinces could legislate upon such matters as freedom from interference. It is arguable that this opinion intended to refer to interference with the legislature by the Crown because historically Parliament has always been jealous of its independence from the executive (the Crown), but more importantly this is the very reason freedom of speech was sought in the first place. When freedom of speech in Parliament was declared by the British Commons in 1629 and fmally confirmed in England by statute in 1688, its principal object was not protection from civil action. That was not required, since it was contrary to the rules of the British Commons at that time (and for more than another century) to repeat or publish outside what was said in the House.44 Rather, the principal purpose of this 42 43

Supra, note 40, p. 534. Supra, Fielding v. Thomas. 44 See also infra, Chapter 6. As late as February 26, 1728, the U.K. Commons had resolved that it is "an indignity to and a breach of the privilege of this House for any person to presume to give...any account...of the debate..." and it was not until 1742 that the Journals of the U.K. House were first printed.

Privilege of Freedom of Speech

35

freedom was protection from all actions of the Crown.45 Accordingly, when in 1815 the law officers of the Crown advised that the legislators of Upper Canada had freedom of speech in debate,46 and when in 1758 the Nova Scotia Assembly was established, the freedom of speech in debate conferred by the common law included freedom from prosecution by the Crown. Thus, freedom of speech in pre-Confederation legislatures included freedom from criminal prosecution by virtue of the common law. In the absence of express legislation to the contrary, it prevails in the legislatures today. The Criminal Code lends support to this. Section 307(1) permits the publication of a news report of the proceedings of the Senate and House of Commons and of a legislature that contains defamatory libel (a criminal offence).47 This would seem to support the position that Members of provincial legislatures do have freedom of speech in debate and freedom from criminal prosecution. Otherwise, there would exist the curious situation of permitting the publication of what was said, while there was no privilege to speak it on the same occasion. While the competence to legislate was changed after 1867 and is now set out in the Constitution Act, 1867, a Member of a post-Confederation provincial legislature had, in accordance with s. 129 of the Constitution Act, 1867,48 no less than the privileges associated with freedom of speech in the legislatures existing before 1867. Freedom of speech cannot be a true freedom to a Member if he is not able to speak free of all constraints save those imposed by the legislature itself. It is not a matter of criminal law but rather one of providing the Member with the necessary immunity to perform his parliamentary work. To provide for the protection of the Member of the legislature from the Crown and everyone else while engaged in a proceeding there is surely a matter of such importance for the Member (and thus the electors he represents) that the criminal law dimension or aspect is secondary. It will be apparent that this privilege of freedom of speech as it is enjoyed in the Canadian House of Commons was confirmed for the 45

46 47 48

Cushing, Elements of the Law and Practice of Legislative Assemblies in the United States of America (Boston: Little, Brown & Co., 1856), p. 242. See Le Club de la Garnison de Quebec v. Lavergne, supra, note 24, citing Bourinot, 4th ed., p.47-8; the history of the privilege clearly shows this (see Chapter 3). See also the definition by Redlich under Nature of Privilege, supra, Chapter 2. See further text, supra, at note 38 See Chapter 1. However, the Criminal Code does not provide similar protection for the publication of proceedings of municipal councils or of reports of their meetings. See the Appendix.

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province of Quebec, at least, in 1918 by the Quebec Court of Appeal in Le Club de la Garnison de Quebec v. Lavergne.49 Accordingly, where communication made to the Member and referred to in Reference Re Legislative Privilege (see supra, note 40) had been used in a proceeding of the legislature, the Bill of Rights,1689, would prevent any questioning in court in respect of that proceeding, although any communication outside a parliamentary proceeding is not so privileged. The position of the Quebec Court of Appeal in the Garnison Club decision had been stated over sixty years earlier. While of the view that provincial legislatures could confer upon themselves by statute "any powers and privileges which they may deem to be necessary for the efficient discharge of their constitution functions," Todd went on to state that "such authority could be exercised either by virtue of their inherent power as legislative bodies...or in pursuance of the s. 92 of the British North America Act, 1867...."5° In other words, whatever may have been the thinking of the federal government in 1870, when they disallowed Ontario and Quebec acts which conferred on these legislatures the same privileges as those of the Canadian House of Commons, "the court51 recognizes the possession in provincial legislatures of a wider discretion than had been heretofore approved either by the dominion government or by the Crown officers in England."52

n In the territorial legislatures If the legislatures of the territories have the same status as the pre-Confederation provinces, they have the same freedom of speech as contained in Article 9 of the Bill of Rights, 1689. It is submitted that the legislatures of the territories have such a status at least for purposes of their privileges, i.e. the common law.

Protection for persons other than Members53 The Bill of Rights, 1689 is not restricted to Members; whatever protection is afforded the Member is equally afforded to the non-Member under the same circumstances. Accordingly, witness, petitioner, counsel, 49 50 51 52 53

Supra, note 36. Now the Constitution Act., 1867, A. Todd, Parliamentary Government in the British Colonies, 2nd ed. (London: Longman, Green & Co., 1894), p. 692. Landers v. Woodworth (1878), 2 S.C.R. 158 at 192. Supra, note 50, p. 693. See also Chapter 11.

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and others whose assistance the House considers necessary for conducting its proceedings are protected by "the rule of Parliament being that no evidence given in either House can be used against the witness in any other place without the permission of the House."54

Exceptions to privilege of freedom of speech Permission to use in court evidence given by a Member and others before a committee of the House was granted by the Canadian Commons in 1892 in connection with two criminal prosecutions, of which one was against the Member, and also in connection with a number of civil prosecutions by the Crown.55 Furthermore, the British House of Commons has assisted the civil prosecutions by informers of actions to collect a statutory penalty by allowing evidence of its proceedings to be given in court in these prosecutions.56 An action to collect a statutory penalty is also provided for in the Parliament of Canada Act.57

Committees sitting beyond the precincts58 While the seat of government (by s. 16 of the Constitution Act, 1867) shall be Ottawa, it is not incorrect to say that the Senate and House of Commons are not compelled to sit on Parliament Hill. In fact, the day after the fire of 1916, the Senate and House of Commons sat in the Victoria Memorial Museum, situated one mile south of Parliament Hill, and continued to sit in that locale until they returned to the Hill in the present building in 1920. Of course the museum building, while occupied by the Houses in their corporate capacity, constituted the precincts.59 A committee can be given authority to adjourn from place to place;60 the practice of committees sitting beyond the precincts is a long-standing one in the U.K.61 but of more recent practice in Canada.62

Committee is an arm of the House A committee of either House of Parliament is an arm of the House because it derives its existence and its authority from the House. The 54 Bourinot, 4th ed., p. 74, referring to a resolution of the British Commons of May 26, 1818. 55 See Journals, April 12, 1892, p. 234-5. See also Chapter 9, Conclusion. 56 See Forbes v. Samuel, [1913] 3 KB. 706; and Tranton v. Astor (1917), 33 T.L.R 383. 57 Section 19. 58 See Chapter 11 on Precincts. 5.9 Ibid. so Beauchesne, 4th ed., p. 243. 61 H.C. 308 (1968-69), p. vi, 37 (U.K.) 62 Bourinot, 4th ed., points out that a Senate Committee was authorized to travel in 1887; see p. 467.

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"proceedings" of a committee of either House or of a joint committee that has an order of reference permitting it to adjourn from place to place in Canada, i.e. to sit beyond the committee rooms in Parliament, are "proceedings in Parliament," and accordingly freedom of speech applies to them. Similarly, witnesses called before the committee would also be protected against civil or criminal action—except that where the evidence was under oath, the witness may be charged with perjury.

Quorum constitutes the committee As in the case of a court, it is the committee (judge), or more specifically, a quorum, that constitutes the "proceeding," and the locale, provided that it is within Canada, is of no consequence.63

Committees cannot function outside Canada Outside of Canada, a committee would not be competent to act as a committee because the "writ of Parliament does not occur in foreign countries" s4 Thus, its sittings would not be a "proceeding in Parliament". (Consequently, any order of the House of Commons permitting a committee to travel and sit outside Canada should authorize the members of the committee to travel outside Canada rather than the committee itself.) While obiter, Hugessen A.C.J. did state in the Ouellet matter that the words "proceedings in Parliament" contained in Article 9 of the Bill of Rights, 1689" "clearly...cover proceedings in committees of the House, wherever they may sit,"65 provided, however, that the committee is sitting in Canada.

Position in Britain The position in the U.K. is that the obstruction of a committee while it is sitting beyond the precincts of Westminster constitutes a contempt of Parliament because the privilege (of freedom of speech) as formulated in the Bill of Rights, 1689 is not restricted to words spoken or acts done within the walls of Parliament.66 The immunity attaches to speeches in Parliament, and a meeting of a committee when authorized by the House to sit beyond the precincts is a "proceeding in Parliament" if held in Canada. 63 64

65 66

See H.C. 34 (1966-7), para. 85 (UK.). However, committees may be empowered to hear evidence in the absence of a quorum. H.C. 308 (1968-69), p. 38 (U.K.). Re Ouellet (No. 1) (1976), 67 D.L.R. (3d) 73 at 74; in this instance, the question was how far things said outside the walls of the Chamber itself may be said to be "proceedings in Parliament". See Chapter 6 on Proceedings in Parliament. H.C. 308 (1968-69), p. 36 (U.K).

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Conclusion Provided a committee is authorized to sit outside the precincts, but in Canada, its proceedings are "proceedings in Parliament" and whatever is said during these proceedings is not actionable at law in either civil or criminal proceedings save criminal proceedings for perjury

"Appendix" to Hansard The question of permitting a Member's written speech that was not given in the House to be printed as an appendix to the Debates (Hansard) has arisen, though it has not been resolved by the House because of intervening events.67 The opposition to such a proposition is based on the tradition and practice against permitting a Member to have his written speech printed in Hansard without delivering the speech in the House. There is good reason for such a tradition and practice. Members have freedom of speech only when speaking in the House or in the committee. When speaking outside the House they have no parliamentary privilege. If they publish speeches given in the House, they publish at their peril; that is to say, if the publication contains any defamation, in the absence of a common law defence, they could be successfully sued, and if it contains any criminal libel or seditious remarks, they could be prosecuted. While the House could certainly permit the printing of a Member's written speech that had not been given in the House, the House alone could probably not accord its publication parliamentary privilege. The reason is that parliamentary privilege does not protect the publication of a Member's speech given in the House; rather, the common law protects the publication of what is said in Parliament. Therefore, it is very unlikely that the law of parliamentary privilege in its present state can protect publication of a speech that has not been given in Parliament. As demonstrated later,68 the reason parliamentary privilege does not protect the Member for publishing outside the House what he said in the House is that, while the House actually encourages the publication of its debates, the historical position of the House is that technically it forbids publishing what was said in the House. That is why Members are turned down in the House when they seek to raise a question of privilege that they have been sued for having published (by interview or press release) what they had said in the House. And it is because of that technical control of the publication of the House that the House may find news reports of what was said in the House to be in contempt of Parliament. In other words, the House will not protect what it has historically forbidden to be done. 67 68

See Order Paper, March 23, 1981 (Government Order No. 41), Debates, March 24 and April 8, 1981. See infra, this chapter.

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When Hansard is printed and published, if the speeches contain civil defamation, the common law gives the publication absolute privilege, because it is important to publish what was said on such an occasion. The advantage of publicity to the community at large outweighs any private injury resulting from the publication. Furthermore, if the publication should include speeches that contain criminal defamation, the Criminal Code protects the publisher. When the journalist reports on only part of what was said in Parliament, he is protected by the common law as long as he gives a fair account of what was said in Parliament and without malice. Parliamentary privilege will not protect an appendix, and neither will the common law, because whatever protection the latter gives is given to the publication of what was said in Parliament. Furthermore, the House alone could not, for purposes of the law of parliamentary privilege, deem the written speech to have been given in Parliament, because this would be a change in the law, and only Parliament can change the law. Therefore, in order for the Member's written speech to be protected by parliamentary privilege, one would need to change the present law of parliamentary privilege and the House alone may not do that. The only publications of Parliament that have been given statutory protection are the "reports, papers, votes or proceedings" referred to in sections 7, 8, and 9 of the Parliament of Canada Act, which are tabled in Parliament.69 It has been held by the courts in the U.K that this Act's equivalent in the U.K. (Parliamentary Papers Act, 1840) is not relevant to the question of the publication of Members' speeches."

Publication of debates Right to control the publication of debates Until recently in England, it was technically forbidden to publish what had transpired in the House of Commons. This is because of the recognized claim of Parliament to exclude strangers from its proceedings and to debate behind closed doors.71 Such exclusion last occurred in Canada and in England during World War II. On July 16, 1971, the British House of Commons resolved that the House will no longer take action for publication of its debates or proceedings unless it represents contempt of the House or unless the sitting had been closed to the public. It still remains technically forbidden in Canada to publish the debates. However, the publication of papers other than the debates, such as the infamous 69 70 71

See Chapter 5. Wason v. Walter (1868), L.R. 4 Q.B. 73. Halsbury's Laws of England, 4th ed. (London: Butterworths, 1980), vol. 34, p. 601-2.

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report of the prison inspectors in Stockdale v. Hansard, has been going on in England since the mid-seventeenth century.72 The question of the publication of debates and proceedings in Parliament on the part of persons present at them has always been closely bound up with that of the admission of strangers.73 Since Parliament has the right to exclude strangers, it follows that it has the right to control and to prohibit the publication of its debates or proceedings. This control was effected in England by numerous resolutions providing that such publication was a "high indignity and a notorious breach of privilege."74 While the British House of Commons officially prohibited the publication of its debates, from the beginning of the nineteenth century, reporters were taking notes openly; a regular report of parliamentary debates called Political Register commenced in 1803, and T.C. Hansard, the son of the printer of the House of Commons, Luke Hansard, took this over in 1811. Space in the public gallery was allocated to the press, and by 1835 the temporary Chamber (following the fire) contained a press gallery. Because technically the publication of debates is forbidden, while a Member of the House of Commons or Senate is free to speak as he sees fit during a debate in Parliament subject only to the rules of the House, if he publishes his speech, he does so at his peril. May, in his first edition,75 expressed it this way: taking care not to say anything disrespectful to the House, a Member may state whatever he thinks fit in debate, however offensive it may be to the feelings, or injurious to the character of individuals, and is protected by his privilege from any action for libel; but if he should proceed to publish his speech, his printed statement will be regarded as a separate publication,76 unconnected with any proceeding in Parliament. This construction of the law cannot be complained of by the Houses of Parliament, as, by their rules and orders, the publication of a debate is forbidden; and it is therefore impossible to protect, by privilege, an irregular act, which is itself declared to be a breach of privilege. By the time the first case occurred against a newspaper for having published the debates of Parliament in 1868,77 there was no Hansard or 72 73 74 75 76 77

See Chapter 5. Redlich, The Procedure of the House of Commons (London: Archibald Constable & Co. Ltd., 1903), vol. 2, p. 361. See May, 21st ed., p. 86 for examples; see also Chapter 13. Dated 1844; see p. 81. E.g. householder mailings containing excerpts of speeches; see infra, Publication for the Information of Members' Constituents. Wason v. Walter, supra, note 72.

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official publication of debates, but there had been for some years a full reporting of the debates in the newspapers. As the court in Wason v. Walter noted, "practically speaking, therefore, it is idle to say that the publication of parliamentary proceedings is prohibited by Parliament."78 Here the court said that the publication of news reports of the debates in Parliament is governed by the common law and not the statute law, which confers legal privilege on those who publish reports, papers, votes, or proceedings.

Parliamentary privilege and legal privilege While the Parliaments of both Britain and Canada have continuously treated as contempt (or as a breach of privilege) the reporting of debates or proceedings79 that wilfully misrepresented the debates or proceedings, the law of libel and of criminal libel also had to be reckoned with. Since the seventeenth century, resolutions of the British House of Commons prohibited the publication of the debates. Thus, a Member could not come to. Parliament for protection if he was sued for having published to the world. One could not question what the Member said in the House,80 but publication outside the House was another matter. The protection afforded the Member speaking in the House is, in law, spoken on an occasion of absolute legal privilege, that is to say, spoken with impunity to the outside world, but he publishes outside the House at his peril. Parliament protects him when he speaks in Parliament, but when he speaks outside, or publishes outside what he says inside Parliament, Parliament offers no protection; only the common law does, if it is offered at al1.91

nAbingdon Case (1794) R. v. Abingdon82 involved a speech in the House of Lords in which the Member accused his lawyer of improper professional conduct; he had the speech published in several newspapers at his own expense. In a prosecution for criminal libel, the accused, Lord Abingdon, contended that he had a right to print what he had, by the law of Parliament, a right to say in Parliament. However, in finding the accused guilty, the court said that "a Member of Parliament had certainly a right to publish his speech, but that speech should not be made a vehicle of slander against any individual; if it was, it was libel." 78 79 80 81 82

Ibid., Cockburn C.J., at 95. See Chapter 13. Bill of Rights, 1689. See recently where Speaker ruled that the complaining Member was being sued for what he said outside the House (Debates, July 18, 1988, p. 17672-4). (1794), 1 Esp. 226, 170 E.R. 337; approved of in Re Ouellet (No. 1), (1976) 67 D.L.R. (3d) 73 (Que. C.A.).

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n Creevey Case (1813) In 1813, in R. u. Creevey,83 during the course of a speech in the House, the accused, a Member of the Commons, charged that a certain tax inspector was an informer on his neighbours. There was an incorrect report of that speech in the newspaper and Creevey furnished a correct copy to the editor of one newspaper, requesting that it be published. The court, in finding him guilty of criminal libel, fined him £100 and held that a Member is protected when he speaks in the House but not "when unauthorized by the House, he has chosen to publish an account of that speech in what he was pleased to call a more corrected form."84 Creevey complained to the House of Commons of the court proceedings, but the House refused to admit that there was a breach of privilege.85 As Leblanc J. succinctly put it, "when he published his speech to the world, it then became the subject of common-law jurisdiction."86

n Wason v. Walter (1868) In 1868, there occurred the first instance of an action for libel based on a newspaper report of a debate in the House of Lords. This was Wason v. Walter.87 The issue was whether what was really a faithful report in a public newspaper of a debate in either House of Parliament, containing matter disparaging to the character of an individual, as having been spoken in the course of the debate was actionable at the suit of the party libelled.88 The court, in answering in the negative, said that the principles on which the publication of reports of the proceedings of courts of justice have been held to be privileged apply to the reports of parliamentary proceedings, in that "though the publication of such proceedings may be to the disadvantage of the particular individual concerned, yet it is of vast importance to the public that the proceedings of courts of justice should be universally known. The general advantage to the country in having these proceedings made public more than counterbalances the inconvenience to the private persons whose conduct may be the subject of such proceedings."89 The court pointed out that this immunity (or exception to the law of libel) was based on two grounds: 1. Malice is the basis of an action for libel, i.e. a wrongful intention. However, when it is shown that the published words were uttered during an occasion of absolute legal privilege, the presumption of 83 84

85 86 87 88 89

(1813), 1 M. & S. 273,105 E.R. 102, 14 Rev. Rep. 427; approved of in Re Ouellet (No. 1), supra, note 80. Ibid., at 431, Rev. Rep. U.K. C.J. (1812-13), 604; Debates (1812-13), 26 and 898. Supra, note 85 at 449. Supra, note 72. Ibid., at 82. Ibid., at 88, citing Lord Kenyon in R. v. Wright (1799), 8 Term Rep. 293,101 E.R. 1396.

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malice may be rebutted. In this instance, a complete and fair report is produced in the newspaper and the publication has in view the instruction and advantage of the public and has no particular reference to the party concerned. 2. The other ground is founded on the principle that the advantage to the community from publicity being given to the proceedings of courts of justice is so great that the occasional inconvenience to individuals arising from it must yield to the general good. In Wason v. Walter the court said that the parliamentary privilege conferred by the Parliamentary Papers Act, 1840 on the publication of any "report, paper, votes, or proceedings" authorized by the House did not apply. Nevertheless, the common law applied to grant legal privilege to the publisher, a newspaper.

Protection of the common law As was said, the publication of reports and papers presented to Parliament and published by Parliament was eventually afforded statutory protection in the U.K. in 1840,90 and this was carried over to Canada by s. 18 of the Constitution Act, 1867 taken together with s. 4 of the Parliament of Canada Act. The British Parliament was compelled to legislate protection for these reports and papers because the common law did not give them any protection; neither could it be shown that they were entitled to protection by virtue of the lex et consuetudo parliamenti.91 However, it was ever prohibited to publish the debates of the House, and accordingly Members could not complain in the House if they were convicted of publishing their own speeches made in Parliament that contained libellous materia1.92 Thus, any protection to be afforded to persons publishing the debates (while nevertheless technically forbidden in the eyes of the Commons) had to be found in the common law, because the lex et consuetudo parliamenti could not be relied upon for defence. "But the House could not, with any prospect of success, claim that inherent privileges enabled it to withdraw from the courts of law a suit in respect of publication outside the House of any speech...even though the House had ordered its publication."93 Such a claim was made in Stockdale v. Hansard in regard to reports tabled in the House and was rejected. The Report of the Committee on Defamation, presented to the British Parliament in March 1975 by the Lord High Chancellor and Lord Advocate, sets forth that "no parliamentary privilege attaches to the 90 91 92 93

The Parliamentary Papers Act, 3 & 4 Victoria, c. 9 (UK) Stockdale u. Hansard (1839), 48 Rev. Rep. 326. See supra, R. v. Creevey and R. u. Abingdon. H.C. 146 (1966-67), P. 164-65 (U.K.).

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repetition outside Parliament of statements previously made in the course of Parliament proceedings."94 To put it another way, Abingdon95 and Creevey98 were attempts to use freedom of speech in Parliament to publish a libel outside. The purpose of these publications was not to inform the public of what was taking place in Parliament as a matter of public importance. That is why the courts in those two cases said a Member publishes his speech outside Parliament at his peril when he is publishing a libel; i.e. he cannot use the publication as a vehicle for libel. The Member can use the House of Commons to utter his libel, but if he wants to publish the libel he has to rely on the traditional manner of publication emanating from an important forum, such as Parliament or a court, the purpose of which is to convey information to the public. The Member may, himself, give a full account of what transpired, but not simply give a garbled report or a single speech that has the effect or purpose of injuring an individual. What occurred in Wason v. Walter was a faithful report conveying information to the public of what happened in Parliament. Anson, in his work, The Law and Custom of the Constitution, sums it up this way: We are accustomed, therefore, to be daily informed throughout the parliamentary session of every detail of events in the House of Commons, and so are apt to forget two things. The first is that these reports are made on sufferance, for the House can at any moment exclude strangers and clear the reporters' gallery; and that they are also published on sufferance, for the House might at any time resolve that publication is a breach of privilege and deal with it accordingly. The second is, that though the privileges of the House confer a right to privacy of debate they do not confer a corresponding right to the publication of debate.° One may ask why the courts and Parliament may publish with impunity and not a Member, which seems to follow from Abingdon and Creevey.98 The answer is that Parliament and the courts do not publish with impunity. Parliament99 publishes the whole debate, and not simply one defamatory speech; by publishing in toto, its purpose is to inform the public of what transpires in these important forums and not, as in the Abingdon and Creevey cases, to simply publish a single speech that attacks the conduct or character of an individual. By publishing the whole of what 94

Para. 204, Ctrmd. 5909. 95 1794. 96 1813. 97 Vol. 1, p. 164, as cited by the Prime Minister of Canada: Debates, February 16, 1960, 1101. 98 See supra. 99 Although at present each House of Parliament publishes its own debates, if, as in the past, another agency published these documents, the "copyright" would still belong to each House.

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transpired or a faithful account, the courts and Parliament, or those reporting on what transpired therein, negate the presumption of malice that arises when one publishes what amounts to a libellous reflection on another. A whole debate receives absolute protection and a fair and faithful account is protected by qualified privilege. Anyone who, on behalf of both Houses, prints and publishes the debates of the House of Commons and Senate in toto, is protected by the common law of libel on the analogy of the publication of proceedings of courts of justice.100 The newspaper reporter or the radio or television reporter reporting on what has transpired in either House is also protected by the common law: qualified privilege (legal); that is, provided a fair and faithful account is rendered. This is because what was said in either House of Parliament was said on an occasion of absolute legal privilege and any presumption of malice in reporting libellous comments is rebutted by demonstrating that a faithful account of the debate has been reported, and a full account is of course a faithful account. A single speech, published apart from the rest of the debate, is not protected; neither is a garbled or partial report of a debate. It is to be observed that the analogy between the case of reports of proceedings of courts of justice, and those of proceedings in Parliament being complete, all the limitations placed on the one to prevent injustice to individuals will necessarily attach on the other: a garbled or partial report, or of detached parts of proceedings, published with intent to injure individuals, will equally be disentitled to protection. Our judgment will in no way interfere with the decisions that the publication of a single speech for the purpose or with the effect of injuring an individual will be unlawful, as was held in the cases of Rex v. Lord Abingdon, and Rex v. Creevey.ioi

Publication for the use of Members only nLake v. King (1667) Lake v. King (1667)102 was an action for printing a false and scandalous reflection on the character of the Vicar General of the Bishop of Lincoln, contained in a petition presented to a committee of Parliament established to hear grievances. It was held that no action could lie here because the custom and practice of the time allowed such a petition to be distributed for circulation among the Members of the committee, and the courts were required to take judicial notice. 100

ioi

102

Wason v. Walter, supra, note 72. Wason v. Walter, supra, note 72, at 94-95; see Galley on Libel and Slander, 6th ed. (London: Sweet & Maxwell, 1967), p. 275, where the author cites the relevant authorities. 1 Saund. 120, 85 E.R. 137.

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In R. v. Creevey, Lord Ellenborough agreed with this view,103 and in spite of its antiquity, Halsbury,1°4 Gatley,105 and Erskine May106 submit that Lake v. King is authority for the proposition that statements published for the use of Members only are not actionable. It is submitted that Lake u. King is also the law in Canada, particularly considering that a petition presented to the House thus forms part of the proceedings of the House. Under this, it seems that any documents presented to Members that are relevant to a committee proceeding would also be protected when distributed to Members.

Petitions A petition to Parliament is privileged when presented,107 but the Member is answerable to the House for any improper material it may contain.1° Furthermore, save in the case of private bills, petitions are rarely advanced beyond being presented to the House, and thus never printed by the House itself; if they are advanced and read into the record, any libellous material they contain is thereby protected if published as part of a fair report of the debate.

Publication for the information of Members' constituents The present practice of Members of the House of Commons of Canada is to print, publish, and distribute as householder mailings single speeches of Members inter alia.109 Should any such single speech contain libellous material, it would, on the basis of the Abingdon and Creevey decisions, subject the Member to an action for libel, and the Member would, if the speech was defamatory, be hard-pressed to show he was giving a fair and faithful account of a debate by publishing only one speech out of a debate. One Member of the court,1111 in the 1857 decision of Davison v. Duncan 111 in Britain, was of the view that a Member's single speech is privileged if bona fide published by a Member for the 103 Supra, note 81, 14 Rev. Rep. 427 at 431. 104 4th ed., vol. 34, p. 598. 105 8th ed., para. 424. 106 21st ed., p. 88. 107 The courts support this position. See Rail & Water Terminal ofMontreal Ltd. v. Cie de Gestion de Matane Inc., [1976) C.S. 102 (Que.). 108 See Standing Order 36(3) of the House of Commons of Canada. See also S.O. 36(1), which requires that petitions be certified as to form and content prior to their presentation in the House. These remarks would apply equally to any government response under S.O. 36(8). 109 Canada Post Corportion Act, R.S.C. (1985), c. C-10, s. 35(5). 110 Lord Campbell J. 111 (1857), 7 El. & Bl. 219.

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information of his constituents. Cockburn C.J., in Wason v. Walter, 112 cites this same proposition with approval. It should be noted, however, that this was obiter both in Wason v. Walter and in Davison v. Duncan; the latter involved reporting the proceedings of a public meeting of an improvement commission, which is wide of the question of publishing a speech made in the House of Commons, an occasion of absolute privilege. Another judge of the same court, in Davison v. Duncan,113 submitted that this privilege would arise because the communication was between a Member and his constituents, and not because it was a true report of what took place in Parliament. It is submitted that no such privilege between a Member and his constituents exists in law, i.e. the connection with a proceeding in Parliament is very tenuous. Since Davison v. Duncan is not on point and thus may be questionable authority for the proposition it sets out in obiter, it is not safe for Members to permit libelous material contained in single speeches to be distributed to constituents. The authorities previously cited contra are to be relied upon,114 i.e. Article 9 of the Bill of Rights, 1689 is not a good defence.115 Finally, Evans C.J.H. C. recently held that he "would not be justified in extending the privilege to cover information released to constituents. "116 In other words, the Member would be open to criminal prosecution. Nevertheless, in any civil action for having published extracts of debates as information to his constituents, the Member is entitled to qualified legal privilege of the common law.

Publication of debates by Broadcasting Electronic Hansard Following a study and recommendations of the Committee on Procedure and Organization, the House of Commons of Canada established a special committee to implement the introduction of broadcasting of proceedings in the House of Commons and its committees. The first sitting of the House to be televised occurred October 18, 1977. The persons producing television debates are employees of the House of Commons and they produce an electronic Hansard — i.e. an 112 113 114 115

116

Supra, note 72 at 95. Crampton J. See supra, Creevey and Abingdon, and the U.K. Report of the Committee on Defamation. Quaere: What about a single written question and answer, or a question and answer during a Question Period or during an Adjournment Proceeding; would that constitute the whole debate and thus be subject to qualified privilege? The news reporter who publishes it should have a better chance of convincing ajury that such a report was to convey impartially what transpired in Parliament, as opposed to the Member who asked the question and who later publishes it to his constituents. Re Clark and A.G. Can. (1977), 81 D.L.R. (3d) 33 at 58 (Ont. H.C.).

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audio-visual report of the debate without embellishment or editorial. The sittings of committees of the House are now also broadcast.117 In Britain, the debates of the Houses of Parliament are broadcast by radio and television. With respect to radio broadcasting, the House simply permits the broadcasting authorities to "operate...signal origination equipment for the purpose of recording or broadcasting the proceedings of the House and its committees."118 The staff of the House are not concerned in this operation, and as a result there is no "electronic Hansard" by radio, such as exists in the Canadian House of Commons. With respect to television, the cameras were allowed in on an experimental basis from November, 1989 and officially in 1991. However, Parliament retains the control over the forms of the signals.119

The position of the Member Article 9 of the Bill ofRights, 1689 says that "the freedom of speech and debates of proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament." There is no doubt that the Member, while speaking in debate, is absolutely protected.129 The question arises whether the protection afforded the Member is diminished when the debates are broadcast. As in the case of the printed Hansard, the electronic Hansard now provided in the Canadian House of Commons is a verbatim121 report of what has transpired audibly and, in the case of television, visually. The debates, whether or not broadcast, are nevertheless still part of "debates in Parliament" per Article 9 of the Bill of Rights,1689. The publication of the debates by broadcasting is still a publication of a full report of the debates, and while a defamatory statement may be uttered and thereby affect third parties outside, it nevertheless emanates from within the ambit of the function of the Member during a debate in Parliament, and 117 118 119 120

121

See S.O. 119.1. U.K. Journals, July 26, 1977. The First Report from the Select Committee on Sound Broadcasting, session (1990-91), H.C. 11, para. 140, March 12, 91. Dillon v. Balfour (1887), 20 L.R. Jr. 600; R. v. Creevey (1813), 1 M. & S. 273, 105 E.R. 102; R. v. Lord Abingdon (1794), 1 Esp. 226, 170 E.R. 337; Stockdale v. Hansard, 48 Rev. Rep. 326. What the First Report from the Select Committee on Sound Broadcasting (H.C. 376, 1981-82, 18 May 1982, U.K.) had to say about Hansard or the Official Report, is applicable: 78. The Official Report is "a full Report, which, though not strictly verbatim, is substantially the verbatim report, with repetitions and redundancies omitted, and with obvious mistakes corrected, but which, on the other hand, leaves out nothing that adds to the meaning of the speech or illustrates the argument"—a definition adopted by the Select Committee on Parliamentary Debates, in 1907 (H.C. 239 (1907)), and followed by successive Editors since that time.

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accordingly, as in the case of the printed Hansard, the Member's immunity is not affected. Simply because the spoken words of a Member of Parliament, in respect of which he is absolutely privileged from suit, are broadcast, the privilege is not thereby destroyed. The means of publication being irrelevant, broadcasting those words will fail to affect this privilege.122 In a study of the privileges of Members of Parliament in Britain, the Select Committee of the House of Commons on Broadcasting in 1966 said the Member of Parliament whose speech is broadcast would continue to be protected by absolute privilege in respect of what he said in debate in the House.123 It is submitted that Article 9 of the Bill of Rights, 1689 is adequate protection for the Member of Parliament when he speaks in debate in either House of Parliament or a committee and the speech is broadcast. He is, in law, speaking on an occasion of absolute privilege, and the means of publication is irrelevant.124

The position of the media • Full debate receives absolute legal privilege The question to be resolved here is whether the electronic Hansard now provided in the Canadian House of Commons is to be considered any different from the written Hansard.125 If not, the absolute privilege in respect of reporting the debate in toto would apply,126 thee qualified privilege in respect of a fair and impartial account would also apply,'" and 122 123 124

125 126 127

But see the view expressed in 1947 by AG. Davis, 7 U.T.L.J. 385 in Parliamentary Broadcasting and the Law of Defamation. H.C. 146 (1966-67), para. 8 (U.K.). This was repeated in the First Report from the Select Committee on Sound Broadcasting (1991-92), H.C. 376, para. 73. The Special Committee on Televison and Radio Broadcasting in Canada was similarly advised on December 8, 1977 (Issue No. 3, p. 3A-1). When the matter of the legal position of the Member of Parliament came before the Standing Committee on Procedure and Organization of the House of Commons in Canada in 1969, the author suggested that the House of Commons should be chary of unilaterally embarking on the broadcasting of its proceedings. At that time, considerable reliance was placed on the essence of privilege—necessity—and the question was viewed in the light of this, i.e. necessity is the mother of privilege. The question then asked was whether broadcasting the debates was necessary for the House of Commons to perform its function. It is now felt that Article 9 of the Bill of Rights,1689 is a complete answer to any suggestion that a Member of Parliament may be open to suit for libel for a speech if broadcast, because broadcasting is simply a means of publication and the Member's position in the Chamber is unchanged whether or not one considers the broadcasting necessary for the House to perform its function. The U.K. First Report from the Select Committee on Sound Broadcasting (1990-91), H.C. 11, March 12, 91, para. 140 said no with respect to televising. Wason v. Walter would apply. Ibid.

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the production of a single defamatory speech or of a garbled and partial account of the debate would receive no protection whatsoever. 128

n Extracts attract qualified legal privilege The test in publishing the written Hansard is that the debates in Parliament, like court proceedings, are an occasion of absolute privilege, and by publishing them in toto, an absolute legal privilege applies. By applying the same test here, i.e. the audio-visual reproduction of debates in Parliament being the reproduction of a legal occurrence and an occasion of absolute privilege, its publication in toto would carry absolute privilege.129 Similarly, a fair and impartial account would be clothed with qualified privilege and the plaintiff could only succeed if he proved malice, i.e. the qualified privilege would be lost if the defendant was actuated by some dishonest or improper motive. "For the present purpose, we must treat such publication as in every respect lawful, and hold that, while honestly and faithfully carried on, those who publish them, will be free from legal responsibility, though the character of individuals may incidentally be injuriously affected."139

In Britain By virtue of s. 18 of the Constitution Act, 1867 and s. 4 of the Parliament of Canada Act, the privileges, rights, and immunities of the House of Commons and Senate and their Members are the same as those of the British House of Commons were in 1867. The Parliament of Canada, however, may legislate further privileges provided that any such privileges may not exceed the rights, powers, and immunities of the U.K. at the time of the passing of that Act. Thus, we must ascertain whether the publication of debates is a matter of parliamentary privilege in the Britain; if not, it may well not be a matter of privilege in Canada. The position in the U.K. was put this way by the Select Committee of the House of Commons on Broadcasting: The extent to which the broadcasting organizations would be liable for defamatory statements made in the House and subsequently (or simultaneously) included in broadcasts is a point of some obscurity. The privilege of freedom of speech would continue to protect any member from legal action in respect of what he said in debate in the 128 129

130

Supra, R. v. Creevey and R. v. Abingdon, would apply. The facts in supra, Stockdale v. Hansard, failed this test because the act there was then illegal, i.e. an order of the House of Commons directed a report, forming no part of the proceedings of the House and containing defamatory matter, to be printed and sold. Wason v. Walter; supra, note 72 at 96.

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House. Your Committees were advised however that it is doubtful whether the Parliamentary Papers Act 1840, as amended by the Defamation Act 1952, would afford protection to the broadcasting organizations for broadcasts of proceedings or extracts from proceedings, even if such broadcasts were authorized by the House. On the other hand, it is probable that the broadcasting organizations would be able to rely on the defence of qualified privilege at common law, on the principle of Wason v. Walter,131 in which it was held that a faithful report in a newspaper of a debate in Parliament was privileged on the same principle as an accurate report of proceedings in a court of justice: that is, that the advantage of publicity to the community at large outweighed any private injury resulting from the publication. If this were so, fair and faithful reports would be protected, partial reports, where malice (in legal sense of the word) could be established against a broadcasting organization, would not be protected. It is also possible that difficulties might arise if a defamatory statement were to be broadcast live and a subsequent refutation could not be fitted into the programme schedule.132 Wason u. Walter was confirmed by Lord Denning in Cook v. Alexander133 as representing the law respecting the reporting of parliamentary debates. The Cook case involved both a lengthy report of a parliamentary debate and a "Parliamentary sketch," i.e. a précis containing an impression of the debate as the reporter heard and saw it. The court found both to be protected by qualified privilege.

n Distinction between Hansard or Debates and Reports, Papers, Votes, or Proceedings The Parliamentary Papers Act, 1840134 was enacted to overcome the decision of Stockdale v. Hansard. That case held, inter cilia, that a report containing defamatory matter presented to Parliament was not protected by parliamentary privilege if it was printed and sold to the public, whereas the House of Commons had previously resolved that it was so protected. The Parliamentary Papers Act, 1840 provides an absolute protection for persons who publish "reports, papers, votes, or proceedings" under the authority of either House of Parliament. In effect, the same protection is given to those who publish a copy of, and a qualified privilege to those who publish extracts from or abstracts of, such "report, paper, votes, or proceedings."

131 132 133 134

Supra, note 72. H.C. 146 (1966-67), para. 43 (U.K.). See also First Report from the Select Committee on Sound Broadcasting (1981-82), H.C. 376, para. 76-83, May 18, 1982. 11973) 3 All E.R. 1037 (CA). Supra, note 88, s. 1-3 (s. 7-9 of the Parliament of Canada Act, R.S.C. 1980, c. P-1 (see Appendix)).

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If such legislation was to be construed to protect persons who publish extracts from or abstracts of the debates otherwise known as Hansard and the Official Reports, such an occasion arose in 1868 in the instance of Wason v. Walter. However, Cockburn C.J. clearly and unequivocally put aside any notion that Stockdale v. Hansard applied or that the Parliamentary Papers Act, 1840, passed as a direct consequence, applied. Any opinion expressed on the subject of the report of parliamentary debates was therefore beyond the scope of the inquiry, and must be considered more or less extrajudicia1.135 On the subject of the publication of parliamentary debates he said nothing, nor was he called upon to say anything.136 After which the Act proceeds to provide for the prevention of actions being brought in respect of papers published by order of either House of Parliament. 137 Thus, while the U.K. Committee Reports of 1969,1970, and 1982138 refer to the protection afforded by the common law on the one hand, covered in Wason v. Walter, and the statutory protection afforded by the Parliamentary Papers Act, 1840 on the other, it may be preferable to refer to the common-law protection afforded to the publication of the debates139 by the decision of Wason v. Walter based on the analogy of the reporting of court proceedings, and to the statutory protection afforded to everything else emanating from either House of Parliament by the Parliamentary Papers Act, 1840: the "report, paper, votes, or proceedings." To put it another way, the British Parliament in 1840 was compelled by the decision of Stockdale v. Hansard to make the publication of "report, paper, votes, or proceedings" part of its privileges by Act of Parliament. That Act does not refer to debates; in 1868, Cockburn C.J., in Wason v. Walter, confirmed that it was not necessary "to fix the legality of the publication of parliamentary debates on the sure foundation of statutory enactment"148 and proceeded to establish in law that the protection to those involved in the publication of parliamentary debates arises from an analogy of the protection afforded to those involved in the 135 136 137 138

139 140

Supra, note 72, at 84. Ibid., at 91. Ibid., at 92. First Report of the Joint Committee on the Publication of Proceedings in Parliament, H.C. 48, December 3, 1969, para. 18; Second Report of the Joint Committee on the Publication of Proceedings in Parliament, H.C. 261, May 6, 1970, para. 36. See supra, note 134. Otherwise known as the Official Reports or Hansard. Supra, note 72, at 92.

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publication of court proceedings, and that parliamentary privilege was not involved. As May puts it when referring to the protection of the publisher of the whole debate, "publication...is protected, not specifically by privilege of Parliament, but on the analogy of the publication of proceedings in courts of justice."141 When referring to Members who may complain to the House if sued for outside publication, May (1844) said, "it is impossible to protect, by privilege, an irregular act, which is itself declared to be a breach of privilege. "142 Furthermore, Littledale J. agreed in Stockdale v. Hansard 143 when he said: After all, none of these cases, Rex v. Lord Abingdon, Rex v. Creevey, were publications under the orders of the House, and do not affect the question of privilege, and therefore I only consider them as declaring the opinion of judges on publications to the public at large of what has occurred in Parliament. Cockburn C.J., in Wason v. Walter, was also convinced when he noted: Several cases were cited in the course of argument before us, but they turned for the most part on the question of parliamentary privileges, and therefore appear to us very wide of the present question.144 The 1969 Committee Report145 also states that the same defences at common law under Wason v. Walter provided to the written publisher of parliamentary debates are available to the publisher of those debates by broadcasting.146 This represents a confirmation of the 1966-67 report,147 when in paragraph 43 it included this sentence (the context clearly shows that they were referring to the debates): Your committee was advised, however, that it is doubtful whether the Parliamentary Papers Act 1840, as amended by the Defamation Act 1952,148 would afford protection to the broadcasting organizations for broadcasts of proceedings or extracts from proceedings, even if such broadcasts were authorized by the House. 141 142 143 144 145 146 147 148

May, 1st ed., p. 81. Ibid. Supra, note 122, at 449. Cockburn C.J., supra, note 72, at 84. H.C. 48, December 3, 1969, (U.K.). See supra, note 140. Para. 20. H.C. 146 (U.K.). The Defamation Act, 15 & 16 Geo. 6 & 1 Eliz. 2, c. 66, s. 3 provides that the term "printing" set out in s. 3 of the 1840 Act relating to qualified privilege for extracts and abstracts may be read to include publication by broadcasting.

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• Common law protects debates — Statute law protects papers and reports The 1969 Committee Report149 went on to recommend that sections 1 and 2 of the Parliamentary Papers Act, 1840 be amended to confer absolute protection on the broadcast in the event a House of Commons broadcasting unit was created. Then, when the British Broadcasting Corporation or other networks took extracts of or abstracts from this broadcast, qualified privilege would apply. However, as was seen earlier, 150 the British House did not provide for a radio "electronic Hansard", the radio broadcasting unit was not created, and sections 1 and 2 of the Parliamentary Papers Act, 1840 were not amended. Nevertheless, the common law as expressed in Wason u. Walter151 protects the publication of the debates under the conditions set out therein, and parliamentary privilege as set out in the Parliamentary Papers Act, 1840 protects "reports, papers, votes, or proceedings" in the manner set out in the act. That is to say, Wason v. Walter provides the same protection to broadcasters when using the broadcasted Hansard as is provided to those using the printed Hansard, i.e. qualified privilege, when publishing extracts or abstracts of the radio broadcasts. In the event a live broadcast contains a defamatory speech, a broadcaster would have a good defence by making certain that any subsequent explanation was eventually reported.

• Onus of proof If Wason u. Walter applies, the onus would be upon the plaintiff in any action to prove malice on the part of the publisher; if the Parliamentary Papers Act, 1840 applies, the onus would be upon the publisher to disprove malice.152

In Canada While the privileges, immunities, and powers of the Senate and House of Commons and Members respectively are the same as those held by the House of Commons of the U.K., they are held "so far as the same are consistent with that Act [the Constitution Act, 1867]."153

149

151 152 153

H.C. 48, December 3, 1969, (UK.). This was repeated in H.C. 376, para. 82 (see note 134). See supra, Publication of Debates by Broadcasting—Electronic Hansard. There is statutory protection for newspaper publishers in the U.K.—See Law ofLibel Amendment Act, 1888, 51 & 52 Victoria, c. 64, s. 4. It was recommended in the U.K. that section 3 of the 1840 Act be amended so as to place the burden of proof of malice on the defendant. H.C. 376, para. 74 (see note 134). Parliament of Canada Act, R.S.C. (1985), c. P-1, s. 4.

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Therefore, while the British Parliament may deal both with matters of defamation as part of the civil rights of citizens of the U.K. and with matters of privilege, the Parliament of Canada may not legislate in respect of civil rights save as an aspect of parliamentary privilege in s. 18 of the Constitution Act, 1867. Only the provinces, under s. 92(13), have this power under any other circumstances. This becomes significant when dealing with the protection afforded to the publisher of the broadcast debates. This issue does not arise in the case of the publication of any "report, paper, votes or proceedings" referred to in sections 7, 8, and 9 of the Parliament of Canada Act, because this legislation is properly within the legislative jurisdiction of Parliament by virtue of s. 18 of the Constitution Act, 1867. The U.K. was compelled by legislation to make the publication of these reports, papers, votes, or proceedings a matter of privilege.154 But since the effect of publication of debates on the rights of third parties in the U.K. is not a matter protected by parliamentary privilege, and further, since s. 4 of the Parliament of Canada Act restricts the privilege of the House of Commons to those of the U.K., the Canadian Parliament would have to legislate if it wished to make publication of debates a matter of privilege. However, as mentioned above only the provinces have the competence to so legislate, under s. 92(13) of the Constitution Act, 1867. It will be seen, however, that the common law affords the necessary protection.

nCommon-law protection of media reporting debates In Canada, the common-law protection afforded to publishers and broadcasters of the debates in Parliament is contained in the decision of Wason v. Walter. That is to say, "while honestly and faithfully carried on, those who publish them will be free from legal responsibility, though the character of individuals may incidentally be injuriously affected." 55 As the court said: To us it seems clear that the principles on which the publication of reports of the proceedings of courts of justice have been held to be privileged apply to the reports of parliamentary proceedings. The analogy between the two in every respect156...being complete, all the limitations placed on the case to prevent injustice to individuals will necessarily attach on the other; a garbled or partial report, or of detached parts of proceedings, published with the intent to injure

154 155 156

See Chapter 4 regarding reports, papers, etc. Supra, note 72, at 96; Halsbury, 4th ed., vol. 28, para. 119. Supra, note 72, p. 93.

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individuals, will equally be disentitled to protection157...whatever would deprive a report of the proceedings in a court of justice of immunity will equally apply to a report of proceedings in Parliament.'" One hundred years later, the Court of Appeal in the U.K. confirmed the principle contained in Wason v. Walter. As stated by Lord Denning in Cook v. Alexander: Ever since that case [Wason v. Walter] it has been settled that, in a report of proceedings in Parliament, there is a privilege — qualified privilege — in the reporter. If the report is fair and honest, then he is not liable to an action. It may be that a speaker in the debate got his facts entirely wrong or was actuated by the most express malice; nevertheless, the reporter is entitled to report what he said.159

• Statutory defence for media reporting debates While Wason u. Walter is probably adequate defence for the publication of debates that are broadcast as well as printed, a secondary level of defence arises in the defamation Acts of the provinces that have legislative jurisdiction in matters of civil rights under s. 92(13) of the Constitution Act, 1867. In those Acts, the result of Wason v. Walter160 has passed into such Canadian legislation as s. 3(1) of the Ontario Libel and Slander Act, which gives qualified privilege to a "fair and accurate report in a newspaper or in a broadcast of ..proceedings of any legislative body or any part or committee thereof in the British Commonwealth...."161

• Media may make fair comment Lord Denning adds that "not only is the report of the proceedings privileged, but also the reporter of the newspaper can make fair comments on it. That follows inexorably from the fact that the proceedings are

157 158 159

160 161

Ibid., p. 94. Ibid., p. 95. While extracts from all of the speeches in the debate were printed, the newspaper defendant also safely printed a "parliamentary sketch," i.e. an impression of the debate as the reporter heard and saw it—a selective report of that part of the debate that appeared to the reporter to be of special public interest. Followed in Cook v. Alexander See to the same effect the Alberta Defamation Act, R.S.A. 1980, c. D-6, s. 10(1)(b); the Manitoba Defamation Act, R.S.M. 1970, c. D-20, s. 10(1)(a), (c); the New Brunswick Defamation Act, R.S.N.B. 1973, c. D-5, s. 9(1); the Nova Scotia Defamation Act, R.S.N.S. 1967, c. 72 s. 12(1)(a); the Prince Edward Island Defamation Act, R.S.P.E.I. 1974, c. D-3, s. 9(1); the Quebec Press Act, R.S.Q. 1977, c. P.19, s. 10(a) where "broadcasting" is absent; the Saskatchewan Libel and Slander Act, R.S.S. 1978, c. L-14, s. 10 where "broadcasting" is also absent; and the British Columbia Libel and Slander Act, R.S.B.C. 1979, c. 234, s. 4; while using a broad sweep, "public meeting" does not specifically mention bodies outside British Columbia. It nevertheless also omits "broadcasting."

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presumed conclusively to be of public interest, and accordingly that fair comment can be made on it."162 Cockburn C.J., in Wason v. Walter, similarly remarked 100 years earlier: "the publication of the debate having been justifiable, the jury were properly told the subject was for the reasons we have already adverted to pre-eminently one of public interest, and therefore one on which public comment and observation might properly be made...."163 (It should be noted that this is in the context of a civil action. The House of Commons may set a different standard, and fair comment in a civil action does not necessarily mean that it would not amount to contempt of the House.)

While it will be seen in Chapter 4 that the Parliament of Canada may legislate in respect of any "report, paper, votes, or proceedings" because it was enacted as a matter of parliamentary privilege as the Parliamentary Papers Act, 18401" as a consequence of Stockdale v. Hansard, the same does not apply in respect of the debates of either House of Parliament. As was the case for any "report, paper, votes, or proceedings" before the enactment of the Parliamentary Papers Act, 1840,165 the publication of debates is technically forbidden; it was tolerated during the first part of the nineteenth century, financially assisted during the mid and late nineteenth century, and finally published on the authority of the House of Commons. Because the publication was technically forbidden by the Houses of Parliament and was therefore a breach of the privileges of both Houses, it would not be considered part of the privileges of Parliament to protect persons reporting on the debates, and a Member could not complain about being prosecuted for having published his single defamatory speech.166 Wason v. Walter confirms that the "question of parliamentary privilege...appears to us very wide of the present question,"167 which was "whether a faithful report in a public newspaper of a debate in either House of Parliament, containing matter disparaging to the character of an individual, as having been spoken in the course of a debate, was actionable at the suit of the party whose character has thus been called in question. "168 162

Cook v. Alexander, [1973] 3 All E.R. 1037 at 1041-2. Supra, note 72, at 96; see also Mangena u. Wright, [1909] 2 KB. 958 at 977. 164 3 & 4 Victoria, c. 9 (U.K.). 165 See the Parliament of Canada Act. 166 R. u. Abingdon; R. u. Creevey. 167 Supra, note 72, at 84. 168 Ibid., at 83. 163

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However, it is submitted that the present qualified privilege enjoyed by the media under the common law or the provincial legislation on defamation is ample protection.

Conclusion 1.

The publication of debates and their reporting is not a matter of parliamentary privilege in the U.K. by virtue of Wason v. Walter169 (save where it amounts to contempt of Parliament) and thus is not a matter of parliamentary privilege in Canada because of the limitations contained in s. 18 of the Constitution Act, 1867 and s. 4 of the Parliament of Canada Act.

2.

Since the publication of the debates and their reporting is not a matter of parliamentary privilege, without an amendment to the Constitution, Parliament may not legislate in regard to legal responsibility for reporting the debates, and broadcasters must rely on Wason u. Walter or leave it to the provincial legislatures.

3.

Defamation is a matter within the legislative competence of the provinces by virtue of s. 92(13) of the Constitution Act, 1867, but not all of the provinces have legislated in the area of defamation, and neither do all of the provincial defamation Acts provide for "broadcasts." However, Wason v. Walter would, in the absence of specific provincial legislation, apply to the reporting of debates of either House of Parliament.

Members should uphold and protect the privilege of freedom of speech While by statute law it is imperative that a Member of either House of Parliament must be independent of the Crown and not accept any remuneration for services rendered while a Member save as provided,17° and not be contractually bound to the Crown, the Member should be cautious of any contractual relationship with any other body; the Member has a duty to his constituents and to the country as a whole rather than to any particular section thereof. The U.K adopted a resolution to this effect on July 15, 1947, while adopting the report from the Committee on Privileges171 in regard to the contractual relationship between a Member of the House and a trade union, by which the Member received financial payments. The committee found no breach of privilege, but said such a relationship is one of great difficulty and delicacy in which there is often a danger that the rules of privilege may be infringed. Supra, note 72. E.g. ministers and parliamentary secretaries are excepted. 171 H.C. 118 (1946-7) (U.K.). 169 170

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Recent events involving allegations of Members receiving "cash for questions" in the U.K. Commons have occasioned both a reference to the Committee of Privileges of the House (see U.K. Debates, July 13, 1994, col. 1042) and the setting up the same year by the government of an extra-parliamentary Committee on Standards in Public Life (the Nolan Committee).172 The Speaker of the U.K. Commons took the occasion to remind Members of a paragraph in the first report of the Select Committee on Members' interests of the session 1991-92, which includes the statement that "a financial inducement to take a particular course of action in Parliament may constitute a bribe and thus be an offence against the law of Parliament" (U.K. Debates, July 12, 1994, col. 829). The Canadian House of Commons has never had occasion to deal with a comparable situation. The 1947 resolution of the U.K. House is quite broad and would take in a wide variety of situations where a Member was in the employ of any group or company or section of the community that had more than an interest in common with all electors. It would be a question of fact in each case whether the Member's parliamentary activities were fettered by the association in question. Every Member properly considers himself a "lobbyist" for his constituents whether or not he is: for example, a medical doctor speaking on health matters or otherwise.173 However, the House of Commons of Canada would not look kindly upon a Member of the House whose parliamentary responsibilities and duties were governed principally by the group to which he was contractually tied. In fact Standing Order 23(1) of the House of Commons makes it clear that "The offer of any money or other advantage to any Member of this House, for the promoting of any matter whatsoever depending or to be transacted in Parliament, is a high crime and misdemeanour, and tends to the subversion of the Constitution." 172

173

The Committee of Privileges reported April 3, 1995 (H.C. 351). The Committee found that the conduct of the Members fell short of what the House is entitled to expect and recommended that the House resolve that one of the two Members who accepted money to table questions be suspended for 20 days without salary and the other be suspended for 10 days without q$11nry. The Nolan Committee also reported (C.M. 2850, May 1995) and recommended inter cilia that: (1) Members of Parliament should remain free to have paid employment unrelated to their role as M.Rs, (2) The House should restate the 1947 resolution H.C. 118 (1946-47) prohibiting contractual relationships that restrict their freedom to act and speak as they wish, and (3) There should be a code of conduct for M.P.s. See Debates (1978-79), p. 2812, 2837, 2838.

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While S.O. 23(1) covers only the offer of "bribes" and not their acceptance, bribery is covered by s. 41 of the Parliament of Canada Act, R.S.C. 1985, c. P-1 and calls for disqualification upon conviction of a Member and imprisonment if convicted of accepting. In addition the Criminal Code, R.S.C. 1985, c. C-46, s. 119 provides for the offence of bribery of a Member of Parliament or of the legislative assembly of the province. In any event, since the House has disciplinary powers over Members, and since a court will not inquire into "internal proceedings" of Parliament, the House may set whatever standard it sees fit in respect of the parliamentary conduct expected of Members, to protect their freedom of speech.

CHAPTER 4

Publication of Parliamentary Papers

In the previous chapter we dealt with, among other things, how the publication of parliamentary debates is treated by the courts. While each House has control over its debates and could literally cut off reporting by prohibiting the public from entry to the chamber' or the committee room, Parliament not only tolerates but in fact encourages the reporting of its debates.

Early history of printing Parliamentary Papers in U.K. With regard to matters emanating from Parliament other than the debates of either House or of their committees, history shows that their printing has been going on since the seventeenth century. Littledale J., while referring to the House of Commons in the historic decision of Stockdale v. Hansard, points out that "there is no trace of printing parliamentary papers of any description prior to 1641, when there was a general resolution for printing the votes of the House, and at subsequent times, reports and miscellaneous papers were printed under special resolutions, and measures taken for their distribution through the country, and it appears that these various papers have from time to time been allowed to be sold."2 Again, it will be necessary to examine the position in the U.K. to appreciate what the law of parliamentary privilege is in Canada in respect of parliamentary papers and their publication.

The position in the U.K. n Stockdale v. Hansard While the publication by either House of any "report, paper, votes, or proceedings" is now protected by statute, the common law relating to the 1 2

Or by clearing the galleries—see Standing Order 14. (1839), 48 Rev. Rep. 326 at 442.

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publication of parliamentary reports and papers is contained in the case of Stockdale v. Hansard.3 The decision in this case compelled the enactment of the Parliamentary Papers Act, 1840. This case did not involve the publication of a debate of either House of Parliament. The plaintiff, Stockdale, a publisher, had published in 1827 "a certain physiological and anatomical book written by a learned physician on the generative system, illustrated by anatomical plates."4 The book was found in Newgate Prison library, and the inspectors of prisons, in their report, which was tabled in the House of Commons and ordered to be printed, published, and sold to the public, referred to the book as "of a most disgusting nature; and the plates are indecent and obscene in the extreme."5 The defendant was the publisher of such reports, ordered by the House of Commons to be printed, published, and sold to the public.

n First legal action in 1836 In the first action in 1836, the defendant pleaded the order of the House of Commons to print and publish for sale, but Denman Ch.J. struck that defence down and directed the jury "that the fact of the House of Commons having directed Messrs. Hansard to publish all their parliamentary reports is no justification for them, or for any bookseller who publishes a parliamentary report containing a libel against any man."6 However, the defendant successfully pleaded justification, as the jury considered the description of the work in question to be accurate.

n Decision in Stockdale v. Hansard resulted in Commons inquiry As a result of that decision, the House of Commons, in 1837, appointed a committee to determine what the law and practice of Parliament was in reference to the publication of papers by order of the House.

nResult of inquiry Following that inquiry, the House of Commons resolved that the publication of any parliamentary "report, paper, votes, or proceedings" was an essential incident to the constitutional functions of Parliament; that the House had sole and exclusive jurisdiction to determine upon the existence and extent of its privileges; that to dispute these privileges by legal proceedings was a breach of privilege; and that for any court to 3 4 5 6

Ibid. Ibid., at 326. Ibid. State Tr. (N.S.) 723 et seq.

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presume to decide upon matters of privilege inconsistent with the determination of either House of Parliament was contrary to the law of Parliament.7

n Second legal action Stockdale immediately commenced another action based on another publication, the resolutions notwithstanding. The House of Commons did not act upon the resolutions it had passed (i.e. by holding Stockdale in contempt) but ordered Messrs. Hansard to plead the full resolutions, and the Attorney General to defend them. Only the privileges of Parliament and the resolutions of the House of Commons were relied upon.

n Judgment of the court respecting publication of proceedings and debates While the court went into an exhaustive survey of the history and practice respecting the printing of parliamentary papers and reports and parliamentary privilege, it unanimously rejected the claim of the House of Commons that its privileges, as enunciated in the resolutions, were a good defence to the action. The proof of this privilege to publish with impunity was attempted to be shown to be grounded on three principles: necessity, practice, and universal acquiescence. The court noted that Lake v. King in 16678 did not go beyond laying down the doctrine that printing a petition for distribution to Members is lawful.9 Denman Ch.J. pointed out that when Lord Kenyon in R. v. Wrightl° asserted that no proceedings of either House of Parliament could be a libel,11 he "confounds the nature of the composition with the occasion of publishing it."12 The court noted that the history of the privileges of Parliament in the U.K. at no time suggests that either House claimed a privilege for the publication of libellous material contained in its debates, papers, or reports. On the contrary, there were resolutions of the House of Commons forbidding the publication of papers or debates, and not until 164113 was the first paper printed for distribution. Thus the court in Stockdale v. Hansard was faced with the defences of the privileges contained in the 7

C.J. (1837), 418 (U.K); see Chapter 11. (1667), 1 Saund. 120. 9 Supra, note 2, at 428-9. 10 (1799), 8 Term Rep. 293, 101 E.R. 1396. 11 In referring to a committee report tabled in the House of Commons that had been published. 12 Supra, note 2 at 409. 13 See supra, text at note 2.

8

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resolutions of the House of Commons of 1837, in support of which no practice existed and, consequently, no universal acquiescence. As for the defence of necessity for the House of Commons to publish such a report, the court was of the view that while publication may have occurred in the past, the publication of a defamatory statement affected the rights of third parties exercisable outside the House, and the common law provided that a person had the right to protect his name or reputation by legal action. If this law was to be changed, the House of Commons could not change it, only Parliament.14 True it is the practice of so printing and publishing has proceeded with little interruption until this hour. But the question is not the lawfulness or expediency of printing and publishing in general; it is whether any proof can be found of a practice to authorize the printing and publication of papers injurious to the character of a fellow subject. Such a privilege has never been either actually or virtually claimed by either House of Parliament.15 that:

Some of the significant matters decided by this important case were

1.

the House of Commons would have to prove by historical fact or journal entries a practice of publishing libellous matter with impunity to show that it was part of their privileges;

2.

since it was not part of their privileges, it was not part of the law, or of the lex et consuetudo parliamenti, and thus not part of the general and public law;

3.

the House of Commons alone could not change the law; only Parliament could; therefore if the House of Commons wanted to provide for the protection of its published papers, reports, votes, or proceedings, it could do so only by an Act of Parliament.

n U.K. Parliamentary Papers Act, 1840 as a direct consequence of Stockdale v. Hansard As a direct consequence of the decision of Stockdale v. Hansard, the Parliament of the U.K. in 1840 was compelled16 to enact the Parliamentary Papers Act, 1840, the preamble of which says that: It is essential to the due and effectual exercise and discharge of the functions and duties of Parliament and to the promotion of wise legislation that no obstructions or impediments should exist to the 14

15 16

The House of Commons was but one constituent element of Parliament...but the concurrence of the three legislative estates is neceqqary; the resolution of any one of them cannot alter the law..." (Stockdale u. Hansard, supra, note 2, at 399). 48 Rev. Rep. 326 at 431. Stockdale continued to institute proceedings notwithstanding that he was committed, and thus legislation was the only way to end the litigation.

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publication of such of the reports, papers, votes or proceedings of either House of Parliament as such House of Parliament may deem fit and necessary to be published....17

n Section 1 of the Act — full report has full protection The Act18 then goes on to provide in s. 1 that any person who is a defendant in civil or criminal proceedings on account of the publication of any "report, paper, votes, or proceedings" under the authority of either House of Parliament may produce to the court a certificate under the hand of the Lord Chancellor of the Speaker of the House of Commons, or of certain other named officers, stating that such "report, paper, votes, or proceedings" were published by order or under the authority of the House of Lords or the House of Commons, together with an affidavit certifying such certificate. Thereupon the court is immediately to stay such proceedings and the same are to be taken as "finally put an end to...and superseded by virtue of the Act."

• Section 2 of the Act — copy of full report has full protection Section 2 of the Act provides that a person who is a defendant in a civil or criminal proceeding on account of the publication of any copy of a "report, paper, votes, or proceedings" as are referred to in s. 1 may produce to the court a copy of such "report, paper, votes, or proceedings" together with an affidavit verifying the "report, paper, votes, or proceedings" and the correctness of the copy. The court is thereupon to stay the civil or criminal proceedings, which are then to be taken as "finally put an end to...and superseded by this Act."

n Section 3 of the Act — extract or abstract of report has qualified protection Finally, s. 3 of the Act provides that in any civil or criminal proceeding for "printing" any extract from or abstract of such "report, paper, votes, or proceedings" as are referred to in s. 1, it shall be lawful to give such reports, etc. in evidence and to show that such extract or abstract was "published" bona fide and without malice; and if such shall be the opinion of the jury, "a verdict of not guilty shall be entered for the defendant." Section 3 refers first to "printing" and then to "published" in regard to any extract of or abstract from the "report, paper, votes, or proceedings," about which a court said:

17 18

3 & 4 Victoria, c. 9 (UK.). See the Appendix.

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To my mind it is about as ill drawn a section of an Act of Parliament as I have ever seen, and that is saying a good deal...you cannot proceed against a person for libel unless he not only prints the thing that contains the libel, but publishes it; if he printed it and kept it to himself, no action or prosecution would be possible.19 The court resolved the issue this way: But, I think, especially after the case that has been decided, Plimsoll's case, that it must be taken to mean that where he prints and publishes, if he can prove that he published it bona fide and without malice that he should be entitled to a verdict of not guilty. I think whatever one might have supposed the section to mean, that I am justified in followingPlimsoll's case in saying that that is the meaning of it....20

nStatutory privilege distinguished from common-law privilege Accordingly, in the U.K. an extract of or abstract from the "report, paper, votes, or proceedings" of either House that are published by "order or under the authority of either House" may be published under protection of qualified privilege.21 The difference between this statutory protection and the common-law protection afforded to the publication of debates by Wason v. Walter is where the onus of proof lies in respect of malice. Under the statutory protection, it is the defendant who must prove good faith or the absence of malice generally. If he fails to discharge this onus, he loses his qualified privilege. At common law, the plaintiff must prove malice to succeed.

Command papers and Act papers A distinction is made in the U.K between those documents presented to Parliament by Act of Parliament22 and those documents called command papers, which are presented without statutory requirement by command of Her Majesty. About one-half of the Act papers are published by the House of Commons, whereas all command papers23 are published by the House of Commons. While there is no suggestion that Act papers published other than by the House of Commons receive the protection of the Parliamentary 19 20

21 22 23

Darling J., in Mangena v. Edward Lloyd Ltd. (1908), 98 L.T. 640 at 642 (C.A.). Ibid. Legal privilege, not parliamentary privilege. Called "Act papers." See May, 21st ed., p. 212-13. Ibid., including Blue Book, budget papers.

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Papers Act, 1840, the 1970 Second Report24 suggests there is no reason the qualified privilege these papers would enjoy at common law should not be sufficient. In Stockdale v. Hansard, the only defence raised for a paper containing defamatory matter published by order of the House was the order of the House — there was no suggestion that the common law offered any relief. Furthermore, when Cockburn Ch. J., in Wason v. Walter, pointed out that the issue relating to the publication of the debates was a matter to be resolved by the common law on the analogy to the publication of court proceedings, he said that that had nothing to do with the publication of reports forming no part of the proceedings of Parliament 2s Neither was it suggested in any case dealing with the publication of reports or command papers that the common-law rule applied. However, in respect of papers issued by the government, publication of such matters as command papers (which are, in effect, state papers) no doubt attracts common-law privilege. In Houghton v. Plimsoll,26 a command paper27 was presented to Parliament, distributed to Members, and sent to the parliamentary publisher, Hansard, for sale to the public. The defendant quoted from the report in an article he wrote in a magazine, and the extracts included defamatory matter: the court said the report was a report within the meaning of the Parliamentary Papers Act, 1840 — "it was a report which had been adopted by Parliament and of which distribution of copies had been made." The jury returned a verdict for the defendant. In Mangena v. Edward Lloyd Ltd.,28 defamatory extracts from a command paper29 were contained in a letter published in the defendant newspaper. The then Clerk of the House of Commons, Sir Courtenay Ilbert, gave evidence that an order that such a report30 should "lie upon the Table" was always taken to be authority to print and publish. Darling J. therefore held that s. 3 of the Parliamentary Papers Act, 1840 applied, and in doing so, he purported to follow Houghton and Plimsoll (where, however, there had been an express direction for publication). The court also went on to say that the Act "gives no protection to people who publish what is in a Blue Book by other means than by printing — that is, by reading it out at a meeting, for example." The defamatory heading in the 24 25 26 27 28 29 30

H.C. 261, para. 44 (U.K.). (1868), L.R. 4 Q.B. 73 at 84. The Times, April 2, 1874. Report of a Royal Commission. (1908), 98 L.T. 640 (CA); followed in Mangena v. Wright, [1909] 2 K.B. 958. The Blue Book. The command paper.

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article was, however, not held to be part of the command paper; the plaintiff succeeded on that basis. Since command papers are published by the House of Commons, the Government in the U.K. is now disinclined to rely upon the authority of these judgments; therefore, when a command paper is suspected of containing libellous material, it is made the subject of a "motion for an unopposed Return." Returns in the U.K. House of Commons are virtually automatically ordered to be printed31 and thus receive the protection of the Parliamentary Papers Act, 1840. Since the authorities concerned have ceased to rely upon the judgment in the Mangena case, Returns have assumed a special importance in the matter of privilege. Whenever a Minister feels that a Command Paper which he is thinking of publishing may be libelous, he puts down a motion for an Unopposed Return, and thereby has the paper published with all the protection of the Parliamentary Papers Act.32

Conclusion Any report or paper, whether or not presented or tabled in the House, receives the protection of the Parliamentary Papers Act, 1840 only in the event it is published by or under the authority of the House of Commons. While the common law was no defence in Stockdale v. Hansard, state papers would, by their very nature, attract a measure of protection when published in good faith. With regard to the "report, paper, votes, or proceedings" being broadcast, the Parliamentary Papers Act, 1840, s. 1 and 2, apply to any such "report, paper, votes, or proceedings." On the authority of Wason v. Walter, it is submitted that the provisions of the Parliament/my Papers Act, 1840 do not apply to debate. At the moment, only the full "report, paper, votes, or proceedings" are protected when broadcast, because only s. 3 of that Act was amended by s. 9(1) of the Defamation Act, 1952; that is, there is provision only for qualified privilege where "abstracts" or "extracts" of the broadcasted proceedings are used.33 Sections 1 and 2 would be required to be amended in order to provide absolute privilege for the complete "report, paper, votes, or proceedings" that are broadcast.

31 32 33

Second Report from the Joint Committee on the Publication of Proceedings in Parliament, H.C. 261 (May 6, 1970), para. 55-7 (U.K.). Ibid., para. 57. Defamation Act, 1952 (U.K.): "9.(1) Section three of the Parliamentary, Papers Act, 1840 (which confers protection in respect of proceedings for printing extracts from or abstracts of parliamentary papers) shall have effect as if the reference to printing included a reference to broadcasting by means of wireless telegraphy."

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The position in Canada n Parliament of Canada Act, s. 7-9 The Parliamentary Papers Act, 1840 was brought to Canada in 1868, when the Parliament of Canada first enacted what are now s. 7, 8, and 9 of the Parliament of Canada Act, which correspond exactly with s. 1, 2, and 3 of the Parliamentary Papers Act, 1840.

No federal statutory protection for broadcasting extracts of parliamentary papers — there is provincial statutory protection There is no amendment to s. 9 of the Parliament of Canada Act, corresponding to s. 3 of the English Defamation Act, providing for "printing" and "published" to have effect as if that reference included a reference to broadcasting. Accordingly, there is at present no federal statutory protection for publishing by broadcasting of any extracts from or abstracts of any "report, paper, votes, or proceedings" published by "order or under authority of the House of Commons or Senate." However, since this is an area in which the provinces could also properly legislate under "civil rights,"34 arguably any provincial legislation that protects publication by broadcast would be a good defence in a civil action.

Protection provided only where House orders publication In the Canadian House of Commons36 it is the exception rather than the rule to have papers and reports printed and published by the House. The only exception is emanations from committees. A standing resolution of every committee of the House of Commons is to print36 their proceedings. The authority to print is found in Standing Order 108(1)(a). The report of a committee to the House of Commons is no longer automatically printed in the Journals (formerly "Votes and Proceedings").37 Accordingly, publication of a committee report in the Minutes of Proceedings of the Standing Committee or in the Journals receives the full protection of the Parliament of Canada Act38 because it is published "by order or under the authority of the House of Commons." The reports and returns tabled in Parliament, whether by virtue of the 34

35 36 37

38

Constitution Act, 1867, 30 & 31 Victoria, c. 3, s. 92(16) (UK). See Appendix. And the Senate. In the light of Mangena v. Edward Lloyd Ltd. (supra, note 28), to print may include "publish." But see text at note 47, infra. The printing of the text of reports from committees is to a large extent discontinued. See Debates (December 11, 1981), p. 13973-4 for the beginning of this dismantling. Since late 1994, all references to "Votes and Proceedings" have been changed to read Journals. However, no change to date has been made to s. 7 to 9 of the Parliament of Canada Act. Supra, note 33, s. 7, 8, 9.

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statutory authority or the Standing Orders,39 are never printed or published by the House of Commons and therefore do not receive any protection under s. 7, 8, and 9 of the Parliament of Canada Act.40 The appendices to committee reports are rarely published by order or under the authority of the House of Commons; since these contain submissions from interested parties, any defamatory material they might contain would not receive statutory protection if used in a newspaper or in a broadcast. Similarly, while petitions are protected when tabled in Parliament or when distributed to Members, unless they are published under the authority of the House of Commons, any defamatory matter they contain would not receive statutory protection if used in a newspaper or broadcast report. Petitions may, however, be published with impunity for the use of Members only.41 Papers received or tabled in the House receive a "sessional papers" number for identification, but they are not published by "order or under the authority of the House of Commons." Therefore, if someone obtained a photocopy of any such paper and the paper contained defamatory matter, the publication of this matter by the recipient would not receive any statutory protection. "The intention of the Act of 1840 could never have been that by merely depositing a document in the Office of the Clerk of a House, its printer and publisher should get its protection."42 There are no reported decisions in Canada involving the publication of "reports, papers, votes or proceedings" under s. 7, 8, and 9 of the Parliament of CanadaAct. It is likely that a Canadian court would not followMangena u. Edward Lloyd Ltd.43 and not accord statutory protection to papers unless clearly published by or under authority of the House. Once again, any government reports or returns may attract common-law privilege, e.g., as state papers.

n Journals (formerly "Votes and Proceedings"— see supra, note 37) When used in context of the Parliament of Canada Act, these represent what the House did, and they become the permanent journal of the House. They are printed and published "by order or under the authority of the Senate and House of Commons." A qualified privilege is attached to any extract or abstract; to succeed in any civil action that is 39 40 41 42 43

Standing Order 153 of the House of Commons of Canada provides that a list of reports and returns required to be tabled be made available to Members. The common law, of course, offers protection in appropriate cases: see Chapter 6. Lake v. King (1667), 1 Saund. 120, 85 E.R. 137. See also under "Petitions" in Chapter 3. See Pachauri, The Law of Parliamentary Privileges in the U.K. and in India (Dobbs Ferry: Oceans Publications Inc., 1971), p. 80. Supra, note 28

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commenced as a result of publication of the extract or abstract, the defendant must show that it was published bona fide and without malice. This position received the support of the court in Dingle v. Associated Newspapers."

Reports and papers This does not include all reports of committees for our purposes, because the full text of reports from committees on subject matters are printed very infrequently and published in the Journals and thus are not protected.45 The reports and papers that are tabled, either pursuant to an Act of Parliament or pursuant to the Standing Orders of either House, are never printed and published by the House of Commons. They include, for example, the Blue Book46 and the annual reports of Crown agencies and corporations that are required by statute to be tabled. These are usually not distributed or published until tabled in the House of Commons or the Senate; neither House prints them, although they assist in their distribution, but only within the precincts of Parliament. Since no practice has developed in Canada for the House of Commons to print and publish any of these latter papers and reports (as there seems to have in the U.K., prompting Sir Courtenay Ilbert, the Clerk of the House, to advise the court in the Mangena case that an order to lay upon the table was taken to be authority to publish),47 consequently they would not receive any protection under the Parliament of Canada Act, s. 7, 8, and 9. The same may be said of those papers and reports that are referred to committee for study and report, for while they become part of the "proceedings of Parliament" that nomenclature protects them only while they remain an internal proceeding. If published without the authority of the House, they are subject to the same disposition as that which occurred in Stockdale v. Hansard. Part of the result in the Stockdale case was that while the Bill of Rights, 1689 provided protection for "debate or proceedings in Parliament," there was no authority to publish with impunity defamatory material that by simple tabling had become part of the proceedings. If a report is tabled but not printed and published "by order or under the authority of the House of Commons or Senate," and is then referred to a committee for study, the report is protected while used in that

44

45 46 47

[1960] 2 Q.B. 405, varied [1961] 2 Q.B. 162, variation affd [1964] A.C. 371 (H.L.). An absolute privilege attaches to the publication of the complete text (see the Parliamentary Papers Act, 1840, s. 7, 8), save when broadcast (see supra, at note 37). What is published under Standing Order 108(1)(a) gives committees authority to print and probably to publish with impunity. See note 41, supra. The estimates. Which is now relied upon in the U.K. (see supra).

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"proceeding of Parliament"; of course, if it is referred to in debate, the publication of the debate receives the protection of Wason u. Walter. On the other hand, protection for use in a parliamentary proceeding is a different matter from protection to publish, for one must not confuse "the nature of the composition with the occasion of publishing it."48 Accordingly, the fact that a report may be used or referred to in a "proceeding in Parliament" is of no consequence once it is published, unless it is published under Standing Order 108(1)(a) or otherwise by or under the authority of the House of Commons. The Parliament of Canada Act, s. 7, 8, and 9, does not distinguish what treatment is made of any reports or papers. The sole criterion is that they be printed and published "by order or under the authority of the House of Commons or Senate." Only then will they receive the protection of the Act. Thus, whether or not these reports and papers are referred to committee or otherwise debated in the House of Commons or Senate, unless they are ordered to be printed and published under the authority of the House of Commons or Senate, they will receive no protection under the Parliament of Canada Act, s. 7, 8, and 9. As was noted earlier, the common-law rule set out in Wason u. Walter does not apply to any "report, paper, votes or proceedings."49

Householder mailings "Report, paper, votes or proceedings" do not include householder mailings.69 While these are printed by the House of Commons, householder mailings are published by the Member by mail and thus are not protected by the Parliament of Canada Act, since the House does not order their publication. Section 7 of the Parliament of Canada Act51 provides that any person as a defendant in any civil action for having published any "report, paper...by or under the authority of...the House of Commons" may have the action stayed on the production of a certificate under the hand of the Speaker or Clerk of the House of Commons that the report or paper was published by or under the authority of the House. Members are permitted free householder mailings under the provisions of s. 35(5) of the Canada Post Corporation Act. It is the Member who composes their contents and who authorizes their dissemination or 48 49 50 51

Per Lord Denman Ch.J., in Stockdale v. Hansard (1839), 48 Rev. Rep. 326 at 409, when referring to Lord Kenyon in Rex v. Wright. See supra, note 25 at 84. Canada Post Corporation Act, RS.C. 1985, c. C-10, s. 35(5). R.S.C. 1985, c. P-1.

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"publication" to his constituents through the post office.52 Therefore, although they may be printed by employees of the House of Commons, they are not published by or under the authority of the House of Commons. The second condition precedent for the operation of s. 7 is that it must be a "report," "paper," or "votes or proceedings." Any "report" or "paper" referred to in s. 7 means something related to the proceedings of the House and probably, but not necessarily, tabled in the House, such as a report of a committee or an annual report tabled pursuant to statute or under the Standing Orders. It at least means something of which the House is seized. It also means any "papers" tabled by the government or a petition by a Member. But it is unlikely to include material printed exclusively for a particular Member, most of the contents of which are left to him. Therefore, while it is done at no cost to the Member, householder mailings are not free of the law of defamation, the law of copyright, the criminal law., etc. Therefore, if the law of the U.K. in this matter is also the law of Canada,53 even if the House orders all householder mailings to be printed and published, they are nevertheless subject to the law of copyright, the criminal law, and the law of defamation.

52

53

Their content is left to the Member save that he is prohibited from using these mailings for: outright electioneering, requests for financial contributions; invitations to attend political meetings; and sending material unrelated to House of Commons activities. See Chapter 3, Publication for the use of Members only; and Publication for the information of Members' constituents. See also Mangena v. Edward Lloyd Ltd., supra, note 28.

CHAPTER 5 Proceedings in Parliament

In Chapter 3 we dealt with the privilege of freedom of speech set out in Article 9 of the Bill of Rights, 1689,1 and the protection afforded to those who publish the debates of Parliament. We have also seen in Chapter 4 that any "report, paper, votes or proceedings" that are printed or published by order or under the authority of the House of Commons or Senate pursuant to s. 7, 8, and 9 of the Parliament of Canada Act2 are protected by absolute privilege when printed and published in toto, and by a qualified privilege when printed and published as extracts or abstracts.

Bill of Rights, 1689 We have not examined what constitute "proceedings in Parliament" so as to afford the protection of the Bill of Rights, 1689. Article 9 of that statute declares 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."

What it constitutes Since these "proceedings in Parliament" are expressly made the subject of absolute privilege by the Bill of Rights,1689, it is important for Members of Parliament and the public to have as clear an understanding as possible of what are, and what are not, "proceedings in Parliament." While taking part in such proceedings, officers of Parliament, Members of Parliament, and the public are immune from being called to account in the courts or elsewhere, save the Houses of Parliament, for any act done or words uttered in the course of participating, however false or malicious the act and however malicious the words might be; and any member of the public prejudicially affected is without redress. Yet, the term has never been defined by statute or judicial decision.

2

Will. & Mat, secs. 2, c. 2 (UK). See Appendix.

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When the framers of the Bill of Rights used the expression "proceedings in Parliament" in 1689, and did so in the same context as "debate," it is probable that they had in mind a fairly simple conception of an assembly where debates were followed by resolutions or bills, and the proceedings were not marked by much complexity.3 By the insertion of the term "proceedings" in the Bill of Rights, 1689, Parliament gave statutory authority to what was implied in previous declarations of the privilege of freedom of speech by the Commons, e.g. in the Protestation of 1621, where it is claimed: ...that in the handling and proceeding of those businesses every member of the House of Parliament hath and of right ought to have freedom of speech to propound, treat, reason and bring to conclusion the same...and that every member of the said House hath 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.

This famous Protestation has been cited to suggest that "in its wider sense the expression `proceeding in Parliament' has been used to include matters connected with, or auxiliary to, the formal transaction of business." In 1629, Sir John Eliot and others5 had been convicted for seditious words uttered in Parliament and for assaulting the Speaker. In condemning Eliot and the others, the court of King's Bench ruled against the privilege of Parliament upon the false assumption that the act of 4 Henry 86 had been simply a private statute for the relief of Strode7 and had no general application. In 1667, the House of Commons condemned this construction of what were plain words in the statute by resolving "that the Act of Parliament in 4 Henry 8, commonly instituted 'An Act concerning Richard Strode', is a general law" extending to all Members of both Houses of Parliament; "and is a declaratory law of the ancient and necessary rights and privileges of Parliament," and that the judgment against Eliot and the others was illegal and against the freedom and privilege of Parliament. This was followed in 1688 by the House of Lords as legislature resolving to the same effect, and the House of Lords as a court reversed the earlier decision of the King's Bench on writ of error — 3

Second Report from the Select Committee on the Publication of Proceedings in Parliament, H.C. 261, May 6, 1970, para. 13.

4

Halsbury, 4th ed., vol. 34, p. 598, fn. 6. See Chapter 4. Strode's Act — and otherwise a good defence. See Chapter 3. Who had been tried and imprisoned for proposing bills in Parliament to regulate tinners in Cornwall; see Chapter 3 at note 15.

5 6 7

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even if the assault was proper to be dealt with by the Court of King's Bench, the words spoken in Parliament could not be dealt with out of Parliament.8

Historical interpretation There is also historical evidence that Article 9 of the Bill of Rights, 1689 related to similar events immediately preceding its enactment. The Article was directly related to the assertion in the Declaration of Rights, 1689, that James II had violated the laws by 'prosecutions in the Court of King's Bench, for matters and causes cognisable only in Parliament....' The only recorded instance of such a prosecution in James H's reign was that of Sir William Williams, Speaker of the House of Commons. In 1684, the Attorney General had filed an information against him for criminal libel on the ground that, in the House of Commons and in pursuance of a resolution of the House he had ordered to be printed and published a document defamatory of James, then Duke of York. In James' reign Williams was convicted and fined for the offence [£10,000, then reduced to £8,000]. Dangerfield, the author and publisher of the documents on behalf of the House of Commons was also convicted.'0 According to S.A. De Smith,11 the modern view is that the conviction of Speaker Williams was improper because he was acting in pursuance to an order of the House of Commons, and the resolution was an act done in Parliament and consequently a "proceeding in Parliament." Dangerfield's conviction was proper because his publication of the libel was an act done out of Parliament in pursuance of an order made by the House to do what was unlawful.12 S.A. De Smith also points out that the mention of "proceedings in Parliament" in Article 9 was designed specifically to cover the type of act for which Speaker Williams was prosecuted; this is amply demonstrated by contemporary evidence.13 8

Sir John Eliot's case, 3 State 'tr. 293, 332. Dangerfield's narrative. 10 R. v. Dangerfield (1688), 3 Mod. 68. When the convicted defendant was returning from Tyburn, after having been whipped to there from Newgate, he was murdered by a Mr. Francis, a barrister (by piercing his eye), who was later hanged for the crime. See SA De Smith, Parliamentary Privilege and the Bill of Rights (1958), 21 Mod. L. Rev. 465 at 478. it See SA De Smith's article, supra, note 10. 12 See also Lord Denman C.J. in Stockdale v. Hansard (1839), 48 Rev. Rep. 326 at 410-11 and particularly at 403, where he said, "So if the Speaker, by authority of the House, orders an illegal act, though that authority shall exempt him from question, his order shall no more justify the person who executed it...". 13 Supra, note 11, at 478, fn. 60. 9

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Must be necessarily incidental to House or committee proceedings Since two of Parliament's constituent elements, the House of Commons and the Senate, were established for the enactment of laws, those events necessarily incidental to the enactment oflaws are part of the "proceedings in Parliament." However, Parliament has also always been a forum to receive petitions, and the Crown's satisfying the grievances of Members before granting supply eventually led to straightforward requests for information. Therefore, the events necessarily incidental to petitions, questions, and notices of motions in Parliament in the seventeenth century and today are all events that are part of "proceedings in Parliament." Privilege of Parliament is founded on necessity, and is comprised of those rights that are "absolutely necessary for the due execution of its powers."14 Arguably, necessity should be a basis for any claim that an event was part of a "proceeding in Parliament," i.e. what is claimed to be part of a "proceeding in Parliament" and thus protected should be necessarily incidental to a "proceeding in Parliament." As stated earlier, the term has never been completely spelled out by judicial decision or by statute. Courts in Canada have dealt with the issue,15 but by no means has the expression been exhaustively defined.

The technical parliamentary sense As a technical parliamentary term, "proceedings" are the events and the steps leading up to some formal action, including a decision, taken by the House in its collective capacity. All of these steps and events, the whole process by which the House reaches a decision (the principal part of which is called debate), are "proceedings." May tells us: An individual Member takes part in a proceeding usually by speech, but also by various recognized kinds of formal action, such as voting, giving notice of a motion, etc., or presenting a petition or a report from a Committee, most of such actions being time-saving substitutes for speaking. Officers take part in its proceedings principally by carrying out its orders, general or particular. Strangers also can take part in the proceedings of a House, e.g. by giving evidence before it or before one of its committees, or by securing the presentation of their petitions.16

14

Hatsell, vol. 1, p. 1.

15

Roman Corp. v. Hudson's Bay Oil & Gas Co., infra, note 34. 21st ed., p. 92. See infra, note 84.

16

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As opposed to speeches in House or committees While it is said in Canada that "proceedings in Parliament" do not include speeches in the Chamber or in committee,17 probably because "freedom of speech and debates" are referred to independently in Article 9, the U.K. position is that Article 9 of the Bill of Rights, 1689 is drafted with a compendious catch-all intention; thus, "debates," are regarded as part of "proceedings." What perhaps turns on such a distinction is that speeches repeated outside the House, whether by telegram, press statement, or otherwise, could not therefore be considered an extension of a "proceeding in Parliament," because the speech was not a "proceeding in Parliament" when given outside the House.18 However, Article 9 gives equal protection to "freedom of speech and debates" and to "proceedings in Parliament." Therefore, whatever protection there is in repeating outside the House a speech made inside the House during a debate is no different from the protection there is in repeating outside the House what was said in the House as a formal part of a "proceeding in Parliament."

Covers voting, moving amendments, asking questions, oral and written, giving notice, presenting a petition The Report of the Select Committee on the Official Secrets Act in 1939 concluded: (A proceeding in Parliament) covers both the asking of a question and the giving of written notice of such a question, and includes everything said or done by a member in the exercise of his functions as a member of a committee of either House, as well as everything said or done in either House with the transaction of Parliamentary business.19 Paragraph 4 of the same report stated: Cases may easily be imagined of communications between one member and another or between a member and a minister so closely 17

18

19

Beauchesne is quite clear on this: "It has never been understood in the Canadian House of Commons that the word 'proceedings' covered speeches; it is not applied to arguments but it covers utterances bearing directly on making motions, moving amendments, presenting reports, putting the questions, answering questions placed on the Order Paper, voting, naming a Member, etc.; it is construed as relating to procedure and not to debates", 3rd ed., p. 91. He also observes, "a Member's speech dealing with such matters as explanations, congratulations, condolences, ministerial explanations and the like, which have not been appointed for consideration and do not appear on the Order Paper, cannot be regarded as part of the proceedings of the House", 4th ed., p. 109-10. See, however, Roman Corp. v. Hudson's Bay Oil & Gas Co. This arguably represents only an additional reason in support of the submission that a Member publishes outside the House at his peril speeches he made in the House. H.C. 101 (1938-39), para. 3 (U.K.), referred to in Halsbtuy, 4th ed., vol. 34, para. 1486.

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related to some matter pending in or expected to be brought before the House, that, although they do not take place in the Chamber or a committee room, they form part of the business of the House, as for example, where a member sends to a minister the draft of a question he is thinking of putting down, or shows it to another member with a view of obtaining advice as to the propriety of putting it own, or as to the manner in which it should be framed.20 Paragraph 25 of the report invited the House to agree with these conclusions, and the House did so on November 21,1939.

The view of the courts Member must be exercising functions as a Member in House or committee business It is to be noted that according to the above, the Member must be exercising his functions as a Member in a committee or in the House in the transaction of parliamentary business. Whatever he says or does in those circumstances is said or done during a "proceeding in Parliament"; in other words, while the Member is functioning as a Member, not in the lobby or in his constituency; but while actually participating in parliamentary business and saying or doing something necessarily incidental to parliamentary business. The speaking or doing must be inextricably tied to some parliamentary business in which the Member is taking part while moving a motion, voting, reducing a motion to writing, handing a petition or a motion or a notice to the Clerk, presenting a report from a committee, or simply speaking in the House or committee. way:

O'Connor J.A., in a much-quoted dissenting judgment, put it this I desire it to be understood, however, that I do not hold that a Member of Parliament is not amenable to the ordinary courts for anything he may say or do in Parliament. I merely say he is not so amenable for anything he may say or do within the scope of his duties in the course of parliamentary business, for in such matters he is privileged and protected by the lex et consuetudo parliamenti.21

Official capacity is wider than acting in a proceeding in Parliament: n A.G. Ceylon v. de Livera In A.G. Ceylon v. de Livera22 a Member of the Ceylon (now Sri Lanka) House of Representatives wrote to the Minister of Lands recommending the acquisition of an estate owned by de Livera, which was 20 21

See also Second Report from the Joint Committee on the Publication of Proceedings in Parliament, H.C. 261 (1970), para. 17 (U.K.). R. v. Bunting (1885), 7 O.R. 524 at 563 (CA).

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situated in the Member's electoral district. The minister decided to acquire the estate and gave directions accordingly. The accused then changed his mind about disposing of the land and offered money to the Member if he would write to the minister to have the minister not proceed with the acquisition. The accused, de Livera, was charged under a section that provided that it was an offence for "a person who offers any gratification...to a member of the Senate or the House of Representatives as an inducement or a reward for such...member's doing or forbearing to do any act...in his capacity as such member...." The issue was whether the bribery attempt on the Member was "in his capacity as such member" and it turned on the proper interpretation of those words. In pointing out that the question of what is meant by "in his capacity as such member" is not the same question as what is meant by the expression "proceedings in Parliament," the Judicial Committee said: ...there is no doubt that the proper meaning of the words "proceedings in Parliament" is influenced by the context in which they appear in Article 9 of the Bill of Rights...but the answer given to that somewhat more limited question depends upon a very similar consideration, in what circumstances and in what situations is a member of the House exercising his "real" or "essential" function as a member? For, given the proper anxiety of the House to confine its own or its members' privileges to the minimum infringement of the liberties of others, it is important to see that those privileges do not cover activities that are not squarely within a member's true function.23

The accused was found guilty.

Acts of Members done in official capacity may extend beyond parliamentary work and will receive no protection That the "official capacity" of the Member is a capacity beyond what the Member does or says during the course of a parliamentary proceeding is shown in two Canadian criminal cases. While a Member of the House of Commons in 1956, Bruneau accepted money for assisting a constituent to have the federal government buy property he owned. Bruneau was convicted of corruption while acting in his "official capacity" because the functions of a Member in his "official capacity" include assisting constituents, i.e. his official capacity is much wider than the Member of Parliament's role while he is involved in a parliamentary proceeding.24

22

23 2A

[1963] A.C. 103 (P.C.). Ibid., at 120. R. u. Bruneau, [1964] 1 C.C.C. 97 (Ont. C.A.).

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In R. v. Arseneau25 the court said "[o]n the authority of R. u. Bruneau,...it would appear that the corrupt act of a Member of Parliament does not have to be in connection with his legislative duties...."26 The two cases also confirm R. v. Bunting" in that the legislature's authority over contempt is independent but not exclusive of the general public law.28 Thus, both the legislature (or House of Commons) and the court could proceed on the same facts. A clear distinction should be drawn between those things a Member does in the exercise of his capacity as a Member, only one of which is to take part in a "proceeding in Parliament," and those he does because he is a Member: the latter are much wider and are not necessarily protected. It is important to know whether a matter or circumstance falls within the meaning of the term "proceedings in Parliament," because the courts recognize that any such proceeding may not be questioned in court. They are protected by absolute privilege.29

nA private act or conversation during a proceeding but unrelated to a proceeding is not a proceeding in Parliament It will be seen that not everything done or said in the House or committee is protected by the term "proceeding in Parliament"; the act or word must be done or said in connection with the "proceeding." It has been held that defamatory statements made by one Member to another in the course of private conversation in the House are not protected by the absolute privilege that attaches to proceedings in Parliament.36 In agreeing with the conclusion of the Report from the Select Committee on the Official Secrets Act,31 the U.K. House of Commons agrees with this view when, in paragraph 10, the report concludes, "on the other hand, a casual conversation...would not, in their view, be protected by privilege." 25 26 27 28 29

30 31

(1977), 36 C.C.C. (2d) 65, aff'd [1979] 2 S.C.R. 136. 36 C.C.C. (2d) 65 at 90. (1885), 7 O.R. 524 (CA). I.e. criminal law. See s. 5 of the Parliament of Canada Act, R.S.C. (1985), c. Article 9 of the Bill of Rights, 1689 does not say you are protected if you publish; therefore, although a Member of Parliament may lawfully breach the Official Secrets Act while speaking in the House, the press may not necessarily be protected if they publish what the Member said. See Chapter 9. In that case the absence of the element of secrecy may be the saving feature. Coffin v. Coffin (1808), 4 Mass. 1; applied in Kilbourn v. Thompson (1880), 103 U.S. 168 at 204 (S.C.U.S.), cited in Halsbury, 4th ed., vol. 34, p. 598; Gatley, 8th ed., p. 180. Tabled April 5, 1939.

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On the other hand, the Coffin case has been cited in May32 for the following description as to what constitutes the U.S. constitutional provision of "deliberation, speech and debate." I will not confine it [freedom of speech] to delivering an opinion, uttering a speech or haranguing in debate, but will extend it to giving a vote, to the making of a written report, and to every other act resulting from the nature and in the execution of the office.33 The constitutional provision makes no reference to "proceedings," and yet as May's nineteenth edition points out, the court has no difficulty in extending the privilege to acts as well as words.

nRoman Corp v. Hudson's Bay Oil & Gas Co. The Roman decision of 197134 for the first time in Canada dealt with the term "proceedings in Parliament." Roman Corporation Ltd. proposed to sell a substantial share of a uranium mine to a company controlled by non-Canadian shareholders. Details of the transaction had been discussed and an oral agreement was reached on February 24,1970. Upon hearing of the agreement, the Prime Minister and the Minister of Energy, Mines, and Resources made statements in the House of Commons, and confirmed with Roman Corporation by telegram, advising them of the government's intention to prohibit the sale and to enact the legislation necessary for that purpose. In addition, the Minister of Energy, Mines, and Resources issued a press release confirming this government policy. The telegram and press release generally represented a repetition of what had been said in the House of Commons. As a result of those statements, the transaction was not completed. Roman Corporation brought an action in damages for wrongful procurement or attempted procurement of breach of contract, conspiracy, intimidation, and unlawful interference with their economic interests. The only issue dealt with was whether the claim, based on statements made in the House of Commons35 and statements made outside the House of Commons by way of telegram and press release substantially repeating what had been said in the House of Commons, constituted a reasonable cause of action. In dealing with the statements made outside the House, which were made in a publication outside the House of Commons by the Prime 32 33

34 35

See May, 19th ed., p. 88. Parsons C.J. in Coffin v. Coffin, supra, note 30. Roman Corp. v. Hudson's Bay Oil & Gas Co. (1973), 36 D.L.R. (3d) 413, aff'd 23 D.L.R. (3d) 292, which aff'd 18 D.L.R (3d) 134 (S.C.C.). Dealt with in Chapter 4.

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Minister36 and by the Minister of Energy, Mines, and Resources,37 Houlden J. in the first instance referred to A.G. Ceylon v. de Livera,38 where Viscount Radcliffe, in attempting to construe "in his capacity as such member," said: The most, perhaps, that can be said is that, despite reluctance to treat a member's privilege as going beyond anything that is essential, it is generally recognised that it is impossible to regard his only proper functions as a member as being confined to what he does on the floor of the House itself.39 A Member is doing something inherently connected with a "proceeding in Parliament" when putting down a question on the Order Paper, a notice of motion, a notice of motion for the production of papers, or a report stage amendment; when obtaining assistance to do any of these; or when obtaining assistance to draft a bill. Viscount Radcliffe in the de Livera case, however, quite clearly pointed out that the question of what is a "proceeding in Parliament" "is not the same question as that now before the Board. "40 The accused in the de Livera case was charged with and convicted of attempting to bribe a Member for doing an act in his capacity as "such member." He had offered a sum of money to a Member to have that Member write to a minister of the Crown asking the minister not to expropriate land, which that minister had previously ordered to be done. While falling back on the Protestation of 1621 as a guide in the interpretation of the Bill of Rights, 1689, Houlden J. said that the words "proceedings in Parliament" as used in the Bill of Rights were not limited to matters in Parliament, because the Protestation included "speaking, reasoning or declaring of any matter or matters touching the Parliament or Parliament business." It is submitted, however, that the "speaking, reasoning or declaring" refers to "speaking," etc. in the House because the history of the epoch clearly shows that it was a serious breach of privilege if anyone published what was done or said in Parliament. In 1621, it was ordered that the Journals of the House of Commons "shall be reviewed and recorded on rolls of parchment."41 The first evidence of any publication of parliamentary papers for the use of Members only was in 164142 and it was not until 1742 that the Journals of the House of Commons were first 36 37 38 39 40 41 42

Telegram. Press release. Note 22. Ibid., at 121 Ibid., at 120. May, 1st ed., p. 158. Stockdale v. Hansard (1839), 48 Rev. Rep. 326, at 442 per Littledale J.

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printed. In 1695 the Commons ordered "that no newsletter writer do, in their letters or other papers they disperse, presume to intermeddle with the debates or any other proceedings of this House."43 In 1728 the Commons resolved that it is "an indignity to and a breach of the privilege of this House for any person to presume to give...any account...of the debate.... "44 The court in Roman Corp. v. Hudson's Bay Oil & Gas Co. went on to hold that the telegram and press release "are only extensions of the statements made by [the Prime Minister and Minister of Energy, Mines and Resources] in the House of Commons, and, therefore, come within the privilege...regarding statements made in the House of Commons."45 The Court of Appeal of Ontario dismissed the appeal by holding that the telegram and press release were mere extensions of the statements made in the House and were therefore protected with the same absolute privilege as those made in the House itself. In my view, both of them were respectively discharging those "essential functions" referred to by Viscount Radcliffe, in the dispatch of the telegram and in the press release...."

In fact, the court said that "the sending of the telegram and the issuing of the press release, were no more and no less than the legitimate and lawful discharge by the respondents of their duties in the course of parliamentary proceedings as Ministers of the Crown and Members of the House."47 The court also found it significant that bad faith was not alleged on the part of the defendants when they spoke in the House of Commons when speaking on an occasion of absolute privilege.48 "That is to say, that these actions were, in essence, 'proceedings in Parliament' within the extended meaning of that hallowed phrase as judicially interpreted and applied."49 This poses the question: in what way is the Member carrying on the business of the House (i.e. by participating in debates or proceedings in Parliament) when repeating outside what he said in the House? A minister is carrying on the business of the government by repeating outside the House what he said in the House in respect of government policy. The minister has qualified legal privilege for statements made 43 44 45 46 47 48 49

Orders of the U.K. House of Commons, February 11, 1695. February 26, 1728. (1971), 18 D.L.R. (3d) 134 at 142. (1971), 23 D.L.R. (3d) 292 at 300. Ibid., at 299. However, when speaking on an occasion of absolute privilege, good or bad faith is not relevant; see Gatley, 8th ed., para. 381. Supra, note 46, at 298.

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outside the House respecting the policy of the government whether or not they have been previously uttered in the House.50 The Supreme Court of Canada appeared to politely disavow the views of the lower courts respecting statements made outside the House when it said: Without dissenting from the views expressed in the Courts below as to the privilege attached to statements made in Parliament...51 and went on to dismiss the appeal on a broader issue. In Hutchinson v. Proxmire,52 the U.S. Supreme Court found that Senator Proxmire was not protected by the speech or debate clause when he transmitted, by press releases and newspapers, statements originally made in the Chamber; this transmittal of information to constituents is not part of the legislative function of the legislator. In Acte v. McTeer,53 Chairman Weiler held that to permit a Member of the British Columbia Legislature (who was also a cabinet minister) to be protected for what he said outside the Chamber would be an unwarranted extension of parliamentary privilege, and rejected the Roman decision. (The remarks were made by McTeer during a public address and were not a repetition of what he had said in the legislature.)

n Dowson v. The Queen In a recent decision involving communications between officers of state that are absolutely privileged,54 as a result of questions in the Ontario Legislature the Ontario Attorney General wrote to the Solicitor General of Canada. The Solicitor General of Canada then sent a reply to the Attorney General of Ontario, in which the plaintiff is alleged to have been defamed. The reply was tabled in the Ontario Legislature and it stipulated that as a result of the request from the Ontario Attorney General, a senior RCMP officer met with the acting Assistant Deputy Attorney General of Ontario and then went on to set out a summary of RCMP activity. The plaintiff sued the Crown (federal) in slander, based on the communication between the senior RCMP officer and the acting Assistant Deputy Attorney General of Ontario.55 50

51 52

53 54 55

On the motion in Roman Corp. v. Hudson's Bay Oil & Gas Co., Houlden J. observed, "[t]his application might have been argued on the basis that, in acting as alleged in the statement of claim, the defendants Trudeau and Greene were merely carrying out their duties as Prime Minister of Canada and as a Minister of the Crown"; see supra, note 47, at 137; see also Stopforth v. Goyer, infra, text at note 67. [1973] S.C.R. 820 at 828 [emphasis added]. (1978), 443 US. 111. (1977), C.L.R.B. 447. Galley, 6th ed., para. 381. Dowson v. The Queen (1981), 124 D.L.R. (3d) 260 (Fed. C.A.).

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While finding that the communication between the RCMP officer and the acting Assistant Deputy Attorney General of Ontario (both of whom were acting under instructions from their respective ministers) was a statement made by one officer of state to another in the course of official duty and accorded absolute privilege, the trial judge, in supporting the interpretation of "proceedings in Parliament" contained in Roman Corp. v. Hudson's Bay Oil & Gas Co., went on to say that: this is another instance of the extension of such principle outside the House when the subject of the statement is directly connected with the business of the legislature. Such statements cannot be relied on to support an action for defamation. The court cited Chatterton v. Secretary of State for India in Council56 as authority to connect the statement at issue with the extension of the principle of protecting words said during a "proceeding in Parliament" to words said outside the House. The Chatterton case is authority for the specific proposition that no action will lie against any officer of state for any defamatory statement contained in an official report made by him to the head of his department.57 The court in Chatterton did not suggest that the statement was also privileged on the ground that it was an extension of the "proceedings in Parliament"; accordingly remarks to that effect in the Dowson case are extrajudicial or obiter. These remarks nevertheless suggest that any statement made outside a "proceeding in Parliament" that is used in Parliament during a "proceeding in Parliament" would constitute an extension of a "proceeding in Parliament" and thus be absolutely protected. The same events did not quite occur in the Chatterton and Dowson cases: in both cases statements were made as a result of questions in the legislature and were used in the legislature in reply to the questions. However, in the Chatterton case, it was an employee of the department of the minister who was asked the question and who made the statement, whereas in the Dowson case, the statement in question was made by someone who was not an employee of the same government, let alone an employee of the minister who was asked the question. The Federal Court of Appeal in the Dowson case, in dismissing an appeal, similarly found that the statements there were made on an occasion of absolute privilege between two officers of state. In view of that conclusion it went on to say that it was unnecessary to consider whether the statement was also made on an occasion of absolute privilege arising from its relationship to proceedings in the legislature. 56 [1895] 2 Q.B. 189 (CA). 57

Gatley, 8th ed., p. 414.

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However, with regard to the finding of the trial court that the statement in question was accorded absolute privilege arising from that very relationship, the Federal Court of Appeal found it necessary to add: I may say, however, that this question would appear to raise more difficulty in the light of the existing authorities in view of the fact that the Solicitor General of Canada was not a member of the Ontario Legislature, although he was replying to a request for information by a member of the Legislature to enable him to answer a question in the Legislature. Whether a statement made in such circumstances should enjoy the absolute privilege which attaches to proceedings in the Legislature is in my respectful opinion not at all clear on the authorities.58 Arguably, the information provided by the RCMP for use in the Ontario legislature was not a legitimate part of the proceedings of that legislature as envisaged by the Bill of Rights, 1689. If the courts have accorded any privilege to communications to Members from outside their regular resources, it has been on the basis of the common law rather than parliamentary privilege (see infra, Chapter 7). In the Dowson case, it would be the common law as contained in the Chatterton case.

A Member of Parliament has no parliamentary privilege when repeating outside what he said in the House By equating a repetition or extension outside the House of what was said in the House in determining whether or not it was part of a parliamentary proceeding, the Court of Appeal of Ontario in the Roman decision appears to cast aside decisions made over the last 200 years to the contrary, and in the words of Hugessen A.C.J., we would "reach the curious result that a Member enjoys a qualified privilege for printing or publishing the precise words that he has spoken on the floor of the House,59 but an absolute privilege for any comments he may choose to make to journalists or others outside the House. I cannot believe that this is the law."69 While any work leading up to and necessarily incidental to a proceeding in Parliament is protected, and while preparation for a speech in Parliament is protected, mere remarks made outside and then repeated inside in a speech in the House or a committee do not thereby necessarily clothe the former with parliamentary protection. While the subsequent speech in Parliament may, in the case of a civil matter, mitigate damages because of the dissemination arising from the television broadcasting, it is submitted the only effect that it would have in the case of criminal libel would be in mitigation of sentence. 58 59

60

See supra, note 53, at 273. It would have to meet the requirements of Wason u. Walter (1868), L.R. 4 Q.B. 73: i.e. a fair report of the whole debate, not just the publication of a single speech having the effect of injuring an individual. Re Ouellet (No. 1) (1976), 67 D.L.R. (3d) 73 at 70, aff'd 72 D.L.R. (3d) 95 (Que. CA.).

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In R. v. Abingdon in 1794,61 the court held that while a Member may publish his speech, nevertheless, if it was made a vehicle of slander, its publication was a libel. Lord Ellenborough in R. v. Creevey,62 in dealing with the issue of a Member publishing his defamatory speech outside the House after giving it in the House, said: How can this be considered as a proceeding of the Commons House of Parliament? A Member of that House has spoken what he thought material, and what he was at liberty to speak in his character as a Member of that House. So far he was privileged: but he has not stopped there: but unauthorized by the House, he has chosen to publish an account of that speech in what he has pleased to call a more corrected form; and in that publication has thrown out reflections injurious to the character of an individual.63 The court went on to find Creevey guilty of criminal libel. Abingdon and Creevey are cited with approval in Gatley on Libel and Slander: If...he [the Member] causes his speech to be printed in a newspaper and published to the world, no privilege will attach to such publication, and he will be liable not only to civil, but also to criminal, proceedings." The Report of the Committee on Defamation presented to the U.K. Parliament by the Lord High Chancellor and the Lord Advocate in March 1975, citing as authority the Abingdon and Creevey cases, summed it up as follows: "No parliamentary privilege attaches to the repetition outside Parliament of statements previously made in the course of Parliamentary proceedings."65

nVezina v. Lacroix (1936) In 1936, in the case of Vezina v. Lacroix, a Member of the Canadian House of Commons had written a letter to a federal minister of the Crown regarding the civil servant plaintiff having been actively engaged in politics and causing him to be dismissed. The defendant Member maintained that he was not responsible to a third party for acts done in his official capacity, that he was responsible only to the House, and that the letter that was the basis for the cause of action had subsequently been tabled in the House by another Member of Parliament.66 61 62 63 64 65 66

(1794), 1 Esp. 226, 170 E.R. 337. See also Chapter 4. (1813), 14 Rev. Rep 427. See also Chapter 3. Ibid., at 431. 8th ed., p. 180. Report, Command Paper 5909, p. 52, para. 204. (1936), Que. Practice Reports, p. 1.

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The court put aside the defence of privilege by pointing out "que le depute invoque son privilege, it faut qu'il soit a la Chambre des communes, dans l'exercice de ses fonctions. Il est bien evident qu'un depute est responsable des dommages qu'il cause en dehors de la Chambre des communes."67 The position of the Member of Parliament is not changed by virtue of some other Member having produced and tabled the letter, because the letter was written on his own. "Ce n'est pas sur une enquete de la Chambre des communes qu'il a procede, c'est de lui-meme, proprio motu."68

n Stopforth v. Goyer (1978) In 1978, where a defendant minister of the Crown, in response to questions by reporters outside the House of Commons, allegedly made defamatory allegations against the plaintiff, the Ontario Court of Appeal held that he was protected by the defence of qualified privilege, not because he had just made substantially the same statement in the House of Commons on an occasion of absolute privilege during a proceeding in Parliament, but because he was speaking on an occasion of qualified privilege in that the statement was made in discharge of a public duty69 and to a person with a common interest70 with the minister. In other words, it was not considered to have been uttered during an extension of a "proceeding in Parliament".71

n Re Ouellet (1976) In Re Ouellet,72 the accused, a minister of the Crown, was found guilty of contempt of court. Following the dismissal of charges against several corporations brought by the federal government department of which the accused was the responsible minister, the accused was approached by a reporter in the outer government lobby, where he uttered the words. The court distinguished the Roman decision because while in that decision Trudeau and Greene were repeating outside what was said inside the House, Ouellet had not made any statement in the House, but was replying to questions asked by reporters. Hugessen A.C.J. pointed out inter alia that the Ontario courts in the Roman decision did not mention the cases of Abingdon and Creevey and noted that the Ontario Court of Appeal found it a question of significance whether you are speaking in good faith in the House. 67 68 69 70 71

72

Ibid., p. 3. Ibid. The demotion of a senior civil servant for an alleged dereliction of duty. The public as represented by the press. Stopforth v. Goyer (1979), 8 C.C.L.T. 265, reversing in part 20 O.R. (2d) 262 at 270, where LieffJ. found Roman Corp. v. Hudson's Bay Oil & Gas Co. inapplicable and the privilege in the circumstances of the Roman case far from being settled. (No. 1) (1976), 67 D.L.R. (3d) 73, of 'd 72 D.L.R. (3d) 95 (Que. CA).

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It is significant to note that Aylesworth J.A., in the Ontario Court of Appeal, felt that it was important that the plaintiffs in the Roman case had made no allegation of bad faith or malice against the defendants, Trudeau and Greene. Good or bad -faith, however, can only be relevant where there is a question of qualified privilege. Absolute privilege by comparison, precludes any inquiry whatsoever into the alleged statement and the fact that it was made in bad faith can have no bearing on the question.73

In fmding that the reference74 to the de Livera case75 is misleading, Hugessen A.C.J. went on: ...that decision dealt with a statute which made it an offence to offer a bribe to a member "in his capacity as such member" and the judicial committee expressly recognized that the question of what are "proceedings in Parliament", though clearly related, is a narrower one than that as to the functions or capacities of a Member as such. Indeed it could hardly be otherwise. A Member of Parliament is clearly fulfilling his functions as a Member when he visits with or receives his constituents, opens fund drives, presides at local meetings or carries out any number of other tasks, but to pass from that proposition of the statement that all these activities are proceedings in Parliament is a step that I am not prepared to take. Indeed, it has been held that a provincial Premier who addresses a meeting of party supporters does not even enjoy a qualified privilege....76

Earlier, in dealing with the particular facts of the case, he observed: The purpose of the privilege is to protect freedom of speech and debates in Parliament but not, surely, to allow individual members to say what they will outside the walls of the House, to persons who are not members or even spectators of the proceedings inside. If what goes on in the members' smoking room can be said to be a proceeding in Parliament, then why not every private conversation in the parliamentary restaurant? or in a member's constituency office? Absolute privilege is a drastic denial of the right of every citizen who believes himself wronged to have access to the Courts for redress and should not be lightly or easily extended. It is not the precinct of Parliament that is sacred, but the function and that function has never required that press conferences given by members should be regarded as absolutely protected from legal liability.77

73

74 75 76 77

67 D.L.R. (3d) 73 at 89. Art. 9 of the Bill of Rights, 1689 precludes any questioning of what was said in the House; accordingly, it is irrelevant whether a Member speaks maliciously or not. So long as he speaks in the House or in the committee, only the House can question his remarks. In Roman Corp v. Hudson's Bay Oil & Gas Co. [1963] AC. 103 (PC.). Supra, note 70, at 89, referring to Jones v. Bennett, [1969] S.C.R. 277. Supra, note 70, at 87.

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CHAPTER 5 Hugessen A.C.J. concluded that: The uttering of slanderous words by a Member of Parliament to a journalist, outside the floor of the House of Commons, is not, in my opinion, protected by any absolute privilege.78 This decision was affirmed on appeal (see supra, note 70).

n R. v. Bunting (1885) While the majority decision in R. v. Bunting79 is important in other respects,80 the dissenting decision of O'Connor J.A. has been cited with approval. O'Connor J.A. dissented from a majority decision that held that bribery of a Member may be dealt with by the ordinary courts and the legislature, each from its own aspect. In objecting to the ordinary courts dealing in the matter, O'Connor J.A. said: I desire it to be understood, however, that I do not hold that a Member of Parliament is not amenable to the ordinary courts for anything he may say or do in Parliament. I merely say he is not so amenable for anything he may say or do within the scope of his duties in the course of parliamentary business, for in such matters he is privileged and protected by lex et consuetudo parliamenti; (and for his protection, and the preservation of its own integrity, honour, and efficiency Parliament has reserved to itself the exclusive privilege and authority to investigate and decide all matters that arise concerning either House thereof).81

The view of the Houses of Parliament The view of O'Connor J.A. was referred to with approval in the U.K. in 1939 in the report of the Select Committee on the Official Secrets Act.82 A wide definition of "proceedings in Parliament" contained in the Second Report of the Joint Committee on the Publication of Proceedings in Parliament presented May 6, 197083 and repeated in 1977 in the Third Report from the Committee of Privileges84 was not adopted by the U.K.

78

Ibid., at 90; an appeal to the Court of Appeal of Quebec was dismissed (1977), 72 D.L.R. (3d) 95. 79 (1885), 7 O.R. 524 (CA.). 80 See Chapter 13. 81 Supra, note 77, at 563. 82 Tabled April 5, 1939, U.K. House of Commons and adopted November 21, 1939. 83 H.C. 251 (1970), para. 27. 84 H.C. 417, June 17, 1977. For the most recent review of the matter see Committee of Privileges Report, H.C. 365 (1986-87), para. 60-2.

Proceedings in Parliament

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Parliament.85 Paragraph 7 of the Third Report contains the definition of proceedings in Parliament recommended to be enacted.86

nThe Strauss case It was following an alleged breach of privilege that the U.K. House of Commons dealt with the issue and commenced a series of committee studies in regard to privilege. This was the Strauss case of 1956,87 when the Member for Vauxhall complained in the House that the solicitor for the London Electricity Board threatened to sue him for having written to the minister responsible for the board criticizing certain practices of the Board. In its report on the matter, the Committee of Privileges concluded that the Member's letter to the minister was a "proceedingin Parliament" within the meaning of Article 9 of the Bill of Rights.88 However, after debate, the House of Commons by a narrow majority decided that the letter was not a "proceeding in Parliament" and therefore the threat to suit did not constitute a breach of privilege. Nevertheless, one week after the Commons' decision in the Strauss matter, in dealing with a hypothetical case that he said was not for him to decide, the Speaker made the observation that a Member's letter to a minister that arose from a question in the House was a different matter from that raised in the Strauss case, because the question in the House 85 See Debates of the U.K. House of Commons, February 6, 1978, where the House of Commons concurred in a motion to adopt para. 4, 5, 6, and 9 of the Third Report. See May, 21st ed., p. 93 and reference to Committee of Privileges Report, H.C. 365 (1386-87), para. 60-2. as The proposed definition is as follows: 1. For the purpose of the defence of absolute privilege in an action or prosecution for defamation, the expression "proceedings in Parliament" shall without prejudice to the generality thereof include, (a) all things said, done or written by a Member or by any Officer of either House of Parliament or by any person ordered or authorized to attend before such House, and for the purpose of the business being or about to be transacted, wherever such sitting may be held and whether or not it be held in the presence of strangers to such House; provided that for the purpose aforesaid the expression "House" shall be deemed to include any Committee, SubCommittee or other group or body of Members or Members and Officers of either House of Parliament appointed by or with the authority of such House for the purpose of carrying out any of the functions of or presenting such House; and (b) all things said, done or written between Members or between Members and Officers of either House of Parliament or between Members and Ministers of the Crown for the purpose of enabling any Member or any such Officer to carry out his functions as such provided that publication thereof be no wider than is reasonably necessary for that purpose. 2. In this section "Member" means a Member of either House of Parliament; and, "Officer of either House of Parliament" means any person not being a Member whose duties require him from time to time to participate in proceedings in Parliament as herein defined. 87 H.C. 305 (1956-57), (U.K.). 88 Ibid., para. 20.

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was a proceeding in Parliament.99 The Strauss case concerned a letter from a Member to a minister relating to that minister's ministerial responsibilities. SA. De Smith notes that the same 1957 Committee of Privileges in purporting to adopt and follow the arguments and reasoning of the 1939 Committee [in respect of the Official Secrets Act] leaned even further than O'Connor J.A. [of R. v. Bunting] and Parsons J. [of Coffin v. Coffin] and arrived at the surprising conclusion that a Member who writes a letter to a Minister criticizing the administration of a nationalized industry is engaged in a proceeding in Parliament because "it is a reasonable possibility that he will seek an opportunity to debate the matter in the House" if he is dissatisfied with the answer he receives from the Minister or the appropriate authority.9° The author reminds us that this is not to say that every letter written or passed on by a Member to a Minister in the general course of his parliamentary activities can reasonably be construed as forming part of proceedings of Parliament.91 It was suggested in the Report from the Select Committee on Parliamentary Privilege in 196792 that the House should in such circumstances be more concerned with the question of whether the threat that is claimed to be a contempt of Parliament is an improper obstruction that is likely substantially to interfere with the parliamentary duties of the Member affected, rather than whether what he did was part of a "proceeding in Parliament" and consequently accorded absolute protection. In this way, conflicts with the courts in this area would be avoided. Whether it was a "proceeding in Parliament" may be more appropriate for a court to determine in a defamation action. On the other hand, if the House finds that a Member's letter to a minister is a "proceeding in Parliament" and thus is accorded absolute protection, a lawsuit based on the contents of the letter could constitute a contempt of Parliament. The House of Commons could simply admonish the litigant or take action, but its remedy includes the power to commit the litigant or solicitor,93 hardly a procedure that is in accord with the dignity of a modern Parliament or of a modern judiciary 89 90 91

92 93

H.C. Debates, July 14, 1958 (U.K.). Supra, note 10, at 480. Ibid, at 479. H.C. 34, December 1967, para. 76-83, (U.K.). And even the judge, although the last time that occurred in the U.K. was in Jay u. Topham (1689), 12 State Tr. 821. It occurred in Newfoundland in 1838: see Chapter 13, p. 272. However, see Chapter 14, the Canadian Charter of Rights and Freedoms.

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The same Report of the Select Committee on Parliamentary Privilege in 196794 did not agree with the decision of the House in the 1957 Strauss case.

Some reasonable nexus required between acts or words and the business of Parliament One view is that "the sum total of the various judicial dicta on the subject is that there must be some reasonable nexus between the acts or words and the business of the House so as to make them part of the proceedings of the House, and the place where the words are spoken or acts are done are immaterial."95 [Of the cases in question referred to by the author in support of that view, three deal with communications from a stranger to a Member of Parliament;96 one, ex parte Wason,97 is authority for the proposition that since you cannot question what was said in either House of Parliament, you therefore cannot commit a crime by conspiring to say something in either House; R. v. Bunting98 lays down the rule that while bribing a Member of the legislature is an offence against the legislature, it is also a crime and both the legislature and the courts have jurisdiction within their respective spheres, i.e. the same act in one aspect may be a contempt of the legislature and in another aspect a breach of the criminal law: Coffin v. Coffin99 held that, since the libellous remarks uttered by one Member to another in the Chamber were uttered during a private conversation not connected with the business at the time before the House, the remarks were not part of the proceedings of the House and therefore the court had jurisdiction.] The most recent occasion when the U.K. Parliament dealt with the issue was in 1987 in the U.K., in what was known as the Zircon Film Affair. Upon application by the government, a court granted a prerogative writ (an interim injunction) prohibiting a person from showing a film within the precincts of Westminster, on the grounds of national security only. There was no connection between the showing of the film and a proceeding in Parliament and thus no parliamentary protection was afforded or available as a defence.199 When dealing with a complaint from a Member regarding statements made outside the Chamber, the Speaker recently said: 94 H.C. 34 (UK), para. 80-3. See Pachauri, p. 86. 96 See Dickson v. Earl of Wilton (1859), 1 F & F. 419; R. v. Rule, [1937] 2 K.B. 375; and Rivlin v. Bilainkin, [1953] 1 Q.B. 485. See also Chapter 6. 97 (1869), L.R. 4 Q.B. 573. 98 (1885), 7 O.R. 524 (CA). 99 (1808), 4 Mass. 1. 100 H.C. 365 (U.K.), 1986-87.

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As this legal proceeding appears in no way to be based upon "proceedings in Parliament," but rather upon events which transpired outside of Parliament, the Chair cannot fmd, after long and very careful consideration, that the Hon. Member's privilege has been breached.101

Private meetings of Members do not attract parliamentary privilege In Allighan's case, the U.K. Committee of Privileges in 1946 did not consider meetings of Members of Parliament to discuss parliamentary business as a "proceeding in Parliament" regardless of whether the parliamentary business was expected to be brought before the House or was actually pending in the House.102 While admitting that Members of Parliament attending such meetings did so in their capacity as Members, "it does not of course follow that this conclusion attracts to such meetings all the privileges which are attached to the transactions of Parliament as a whole."103 The Committee also stated that "attendance of Members at a private party meeting held in the precincts...during the parliamentary session to discuss parliamentary matters...is attendance in their capacity of Members of Parliament", so that financial arrangements to induce a Member to disclose information from such a meeting were a breach of privilege. iO4

Construing "proceedings in Parliament" not to be restricted to what its meaning may have been in 1689 In construing what is a "proceeding in Parliament" today, it is not reasonable to be restricted to what a "proceeding in Parliament" was in 1689. We should, however, be ever mindful of the principal reason for this protection that was afforded to the Member. The purpose was for the Member to be able to attend to his representative duties in the business of the House unfettered by concerns of possible reactions by the Crown, and (more recently) by concerns of possible civil liability for things said or done in Parliament. There was never any thought given to assisting the Member outside the House in repeating to the world what he had said inside the Chamber. The only protection the Member received outside the House was in relation to matters assisting him to attend and take part in the "proceeding in Parliament."

Historical review During the days of the High Court Parliament, the concern was to get the Member to Parliament; he had privileged protection from actions 101 102 103 104

Debates, July 18, 1988, p. 17674, (U.K.). H.C. 138 (1946-47), (U.K.). Ibid., para. 17. Ibid., para. 21; H.C. 142 (1946-47); C.J. (1947-48), 22. See also May, 21st ed., p. 93.

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against his person in the beginning. He did not have to worry about what the public would say about his words or his actions in Parliament because the public was not privy to parliamentary proceedings. But the King was. Consequently, the next concern was to be protected from the King for his words and actions in Parliament. When that was ultimately resolved, the Member sought and obtained protection from third-party liability for his words and actions in Parliament. But during all that time, though the Members could publishm for their own use,106 when the Commons began to sit independently of the House of Lords and the Council, the Members were prohibited by the House resolutions107 from repeating outside Parliament what they or others had said or done in Parliament and subsequently prohibited by the courts from repeating in a partial way what was said in Parliament.108 A faithful report in a public newspaper of a debate containing matter disparaging to the character of an individual that had been spoken in the course of debate was quite proper,109 but defamatory matter contained in a report tabled in the House but otherwise forming no part of the proceeding of Parliament that was printed was not protected.110 A report tabled in the House and published by order of the House,111 but otherwise forming no part of the proceedings printed and published on the authority of the House, is now protected under the Parliament of Canada Act, and it is now of no consequence that such a report was not a "proceeding in Parliament" in 1839.112

Not just any connection with a parliamentary matter It would be dangerous to suggest that "any" connection with a matter in Parliament will be considered a "proceeding in Parliament." The repetition outside the House of what was said in Parliament is 105

"Printing" probably meant "publishing" at that time. Lake v. King (1667), 1 Sound. 120, 85 E.R. 137. See text at notes 41 to 44. 108 See the Abingdon and Creevey cases. 109 Dicta in R. v. Wright (1799), 8 Term Rep. 293, 101 E.R. 1396; Wason v. Walter (1868), L.R. 4 Q.B. 73. 110 Stockdale v. Hansard (1839), 9 Ad. & El. 1, 112 E.R. 1112. 111 A reference to the report only would be contained in the Votes & Proceedings or Journals. The only reports that the House of Commons publishes are committee reports, and the printing of the text of reports from committees on subject matters in the Journals is discontinued. See Debates, December 11, 1981, p. 13973. 112 See Stockdale v. Hansard, supra, note 107. Cockburn C.J. confirmed this in Wason u. Walter, supra note 57, when he pointed out that the court in Stockdale v. Hansard found "that the House had not the power to order papers of a libellous character and forming no part of the proceedings of the House to be published"; see supra, note 107, at 91. 106 107

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"connected" or related to what was said in Parliament only because it is a repetition of what was said there. A Member is protected for what he said in the course of House business, but anything outside is subject to the common-law rule in Wason v. Walter, i.e. the onus would be on the Member of Parliament to rebut the presumption of malice, and absolute protection is not afforded. The British Columbia Supreme Court recently held, relying on N.B. Broadcasting, that the Commissioner of Conflict of Interest is protected by parliamentary privilege when carrying out his duties because he is an officer of the legislative assembly.113 It is suggested, however, that the Commissioner's duties in conducting interviews, holding hearings, etc. do not amount to a "parliamentary proceeding" and thus are not so protected.

Persons other than Members: protection during a proceeding in Parliament The Bill of Rights, 1689, Article 9, is also the foundation for complete parliamentary privilege for anyone who takes part in parliamentary proceedings. The Article does not restrict the immunity to Members; accordingly witnesses who appear before committees or the House and counsel who speak on behalf of petitioners in private legislation or on behalf of Members of witnesses are all accorded absolute privilege when taking part in a proceeding in Parliament. The only exception is in the case of perjury or giving contradictory evidence. For purposes of the Criminal Code,114 a judicial proceeding includes a proceeding of a committee of either House of Parliament.115 Thus, a person may be prosecuted for perjury on account of oral or written testimony under oath before a parliamentary committee. This legislation is an express exception to Article 9 of the Bill ofkights, 1689 , which is the only manner in which the lex parliamenti may be abrogated or amended. With that exception, witnesses, petitioners, and others who take part in proceedings of Parliament are protected from molestation, threats, or legal proceedings on account of what they may have said or

113

114 115

Sid Tafler and Monday Publications Ltd. v. E.N. (Ted)Hughes, Q.C. (Commissioner of Conflict of Interest), the Honourable Michael Harcourt, Premier, Attorney General of British Columbia, Attorney General of Canada, Supreme Court of British Columbia. April 4, 1995, Melvin J. (in Chambers), A950 949 (Vancouver Registry), not reported. R.S.C. (1985), c. C-46, s. 131, 136. Ibid., s. 107.

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done in either House or a committee thereof.116 Under these circumstances, witnesses, counsel, and petitioners have much the same privileges as the Member because they are both required to attend. Thus a witness called for a certain day and time before a committee of the House need not be distracted by any legal proceeding save a criminal matter in which he is the accused.

Summary and conclusion 1.

In its narrow sense, the expression "proceeding in Parliament" is used in both Houses to denote the formal transaction of business in the House or in committees. It covers both the asking of a written question and includes everything said or done by a Member in the exercise of his functions as a Member in a committee of either House, as well as everything said or done in either House in the transaction of parliamentary business.117

2.

In its wider sense the expression has been used to include matters connected with, or auxiliary to, the formal transaction of business.118

3.

Article 9 of the Bill of Rights, 1689 specifically protects "freedom of speech and debates, or proceedings in Parliament," but is silent regarding events outside Parliament: mere repetition outside the House of what was said in a speech in the House is unlikely an extension of a "proceeding in Parliament" or of a "debate" in Parliament; otherwise, by analogy anything said in a criminal court by a witness under the protection of the Canada Evidence Act may be repeated with impunity outside the courtroom, which is not the law.

Generally speaking, words spoken or things done by a Member beyond the walls of Parliament will not be protected.119 In any event, the cases of Abingdon and Creeuey are authoritative and are clearly the law of England. Accordingly, it may be said with authority that no parliamentary privilege attaches to the repetition outside Parliament of statements previously made in the course of a parliamentary debate. That is to say, they form no part of "proceedings in Parliament," nor do they form part of "debates" in Parliament. It is 116 117

118 119

May, 19th ed., p. 83. Secrets Act, Halsbury, 4th ed., voL 34, p. 598; Report ofSelect Committee on the Of H.S. 101 (1938-39) para. 3, 4 (U.K), adopted by the House of Commons on November 21, 1939. Halsbury, 4th ed., vol. 34, p. 598; Commons Protestation of 1621. H.C. 101(1938-39), para. 4 (U.K.).

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submitted that these cases and Re Ouellet120 express the law of Canada rather than Roman Corp. v. Hudson's Bay Oil & Gas Co.121 4.

The uttering of slanderous words by a Member of Parliament to a journalist outside the floor of the House is not protected by absolute privilege.122

5.

Questions, notices of motion, and notices of motion for the production of papers, when published in the Notice Paper, become "proceedings in Parliament" notwithstanding that they did not exist in 1689.123 This is because the House also does business by means of questions, notices of motion, and notices of motion for the production of papers, and the Member is thus participating in the business of Parliament. The fact that such matters may not have been the business of Parliament in 1689 is of no consequence. The law is always speaking124 and today the business of Parliament is wider.

6.

Since questions, notices of motion, and notices of motion for the production of papers are now part of the regular business of Parliament along with bills, matters closely connected with such question, etc. (e.g. letters from Members to ministers directly related to the questions, notices of motion, and notices of motion for the production of papers; communication with officers of the House respecting the questions, etc.) may be held to have sufficient nexus with the question, etc., to be considered a proceeding in Parliament where the question, notice of motion for the production of papers, or bill was shortly thereafter placed on the Notice Paper, and the publication is no wider than necessary. It would be a question of law in each instance whether the Member was fulfilling his representative role in transacting parliamentary business.125 The 1938-39 committee (U.K.) dealing with the Official Secrets Act was of this view and the debate in the House of Commons (U.K.) respecting the report of the Strauss matter reiterated the distinction 120 121

122 123 124 125

No. 1 (1976), 67 D.L.R. 73, aff'd 72 D.L.R. (3d) 95 (Que. CA). See also Hutchinson v. Proxmire (1978), 443 U.S. 111. The U.S. Supreme Court found that Senator Proxmire was not protected by the Speech or Debate clause when he transmitted, by press releases and newspapers, statements originally made in the Chamber; this transmittal of information to constituents is not part of the legislative function. InActe v. McTeer (1977), C.L.R.B. 447, Chairman Weiler held that to permit a Member of the British Columbia legislature (who was also a cabinet minister) to be protected for what he said outside the Chamber would be an unwarranted extension of parliamentary privileges, and he rejected the Roman decision. Re Ouellet (No. 1) (1976), 67 D.L.R. (3d) 73 at 90, aff'd 72 D.L.R. (3d) 95 at 100 (Quebec CA); see also Stopforth v. Goyer (1978), 20 O.R. (2d) 262 at 271 (C.A.). H.C. 101 (1938-39) adopted by the House of Commons November 21, 1939; see Bourinot, 4th ed., p. 109-10; and Halsbury, 4th ed., vol. 34, p. 598. Interpretation Act, R.S.C. (19855, c. 1-21, s.10. It will be recalled that the court in R. v. Bruneau and in Re Ouellet (No. 1) directed its attention to this aspect. See infra, para. 11.

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between correspondence concerning a draft question, which is an accepted parliamentary method of partaking in parliamentary proceedings, and a letter to a minister on a matter that may never come up in Parliament and that the Member had no intention of raising in Parliament.126 7.

It has been held in the U.S.A. that a publication to a typist incidental and necessary to the making of documents properly used in judicial proceedings attracts absolute legal privilege.127 It is probably the law of England, and also the law of Canada. By analogy, publication to a typist is necessarily incidental to the preparation of a letter to a minister respecting a question subsequently raised in the House. A fortiori, it would apply to the publication to a typist of the questions, notice of motion, or the draft of speech to be given in the House.

8.

The person drafting parliamentary bills is engaged in work necessarily incidental to a "proceeding in Parliament."128

9.

"Debates" in Parliament receive the same protection as "proceedings in Parliament"; accordingly, any preliminary work necessarily incidental to speaking in Parliament would receive a like protection, e.g. preparation and assembling material for a speech in the House.

10. A document, paper, report, or letter tabled by a minister of the Crown (a private Member may not table) in the House or in the Senate is protected as a proceeding in Parliament while in use in either House, but otherwise it is not protected by parliamentary privilege unless published by the House; a defamatory letter sent by a Member to a minister concerning an employee in the minister's department and subsequently tabled in the House causing the employee to be dismissed was not considered to be privileged in law.128 11. A letter by a Member to a minister concerning a matter that falls within the scope of the Member's parliamentary responsibility and that is also within the scope of the ministerial duty is not necessarily a "proceeding in Parliament." Gatley, referring to the Strauss case, cautions that "it is uncertain whether a letter written by a Member to a Minister, criticizing the conduct of a statutory board, is or is not a proceeding in Parliament."'"

126 127

U.K. Debates, vol. 591, c. 235, 259, 264-65. Gatley, 6th ed., p. 109.

128

N.W.T. Public Service Assn. v. Comnu: of NWT., [1980] 1 W.W.R. 385 (N.W.T.CA),

129

Vezina v. Lacroix (1936), 40 Que. P.R. 1.

130

6th ed., para. 418; 8th ed., para. 422.

overruling (1978), 97 D.L.R. (3d) 202.

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Both the Committee on Privilege in 1967131 and the Joint Committee on Publication of Proceedings in 1970132 accepted the view that the House of Commons in the Strauss case was correct in saying that the letter in question was not a proceeding in Parliament.133 However, as a matter of policy, the Committee felt that the practical effect of the distinction between correspondence to elicit information what the House said is not protected and the penultimate resort to the question to give publicity to its subject matter, which, of course, is protected, is indefensible, and recommended legislation to define "proceedings in Parliament" to include the correspondence, inter alia. 12. Matters arising in the House are not necessarily "proceedings in Parliament." A casual conversation between two Members that takes place during the progress of a debate is not a "proceeding in Parliament.134 Such conversation could, however, be protected by qualified privilege,135 i.e. where it was established that the remarks were said in good faith on a subject of public interest.136 13. An action will not lie for defamatory words contained in a petition printed for the use of Members;137 thus, a petition presented to the Canadian House of Commons is also protected and is a "proceeding in Parliament" whether or not it is acceptable as to form. (Petitions presented to the Canadian House of Commons are never printed per se except when set out in Hansard if taken up by the House.) If the House does not print and publish them, however, there is no parliamentary protection attached to petitions if they are otherwise published. 14. Unless it is done by the House as part of its internal administration, the fact that printed matter is distributed within the precincts is not material nor significant — it must be connected to a "proceeding in Parliament" before parliamentary privilege attaches. Where a litigant who was restrained by interim injunction from repeating certain alleged defamation goes to the precincts of Parliament and there within gives to a messenger of the House of Commons to deliver to named Members of Parliament communications repeating the alleged defamation, the litigant is guilty of contempt of court for breaking the injunction, because the communications within the precincts were in no way connected 131 132 133 134 135 136 137

H.C. 34, para. 84 to 87 (U.K.). H.C. 261, para. 20 to 27 (U.K). H.C. Debates (1957-58), p. 227 (UK). Coffin v. Coffin (1808), 4 Mass. 1; May, 19th ed., p. 89; H.C. 101 (1938-39), para. 10, (U.K.); H.C. 261 (1970), para. 18, 19 (U.K). Gipps v. McElhane (1881), 2 N.S.W. 18 (Aust.). See Chapter 7. Lake v. King (1667), 1 Saund. 120; Halsbury, 4th ed., vol. 34, p. 600.

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with any proceedings in Parliament, and thus not protected by parliamentary privilege.138 The Canadian House of Commons has had little occasion, if any, to deal with the question of "proceedings in Parliament." One must not lose sight of the fact that "proceedings in Parliament" are not the criterion or the only criterion for the House of Commons when determining whether it has jurisdiction in any matter. A contempt of Parliament that the legislature would see fit to pursue139 rarely occurs during a "proceeding in Parliament," but rather it emanates from outside the House, such as an article in a newspaper reflecting on the Speaker,140 or on a particular Member,141 or on Members generally.142 In other words, the House of Commons has jurisdiction in matters other than "proceedings in Parliament" because of its contempt powers. On the other hand, it is necessary for something to be said or done in the transaction of a "proceeding in Parliament" before the Member or other participant has parliamentary immunity. Finally, while many communications may not receive the protection of absolute legal privilege as a "proceeding in Parliament", the common law provides considerable protection for certain communications when well motivated.143 Thus, arguably, the Supreme Court of Canada may well have found that the telegrams and press release in the Roman decision had a qualified legal privilege, as that court noted that they emanated in good faith from the government on a matter of government policy.'"

138 139

140 141 142 143 144

Riulin u. Bilainki, [1953) 1 Q.B. 485. See also H.C. 365 (UK.) 1986-87 (the Zircon Film Affair) supra, at note 98. A legislative assembly or House of Parliament normally does not assert its authority in the case of attention-grabbing incidents in the Chamber. But see 24th Report of the Privilege Committee, March 6, 1991, Journals, p. 2666 (Macaroni Caper). Journals, December 22, 1976, p. 270. Re Gazette and John Reid, M.P., Journals (1974-76), July 25, 1975, p. 743. Case of A Choquette, ibid., p. 1275. See Chapter 6. (1973), 36 D.L.R. (3d) 413; this of course would only apply in the case of a Member who is also a minister of the Crown, as in the case of Stopforth v. Goyer.

CHAPTER 6 Protection Afforded Apart from Parliamentary Privilege

While it is clear that the Member is afforded absolute privilege in law for acts done and words said during a parliamentary proceeding, he speaks outside the House at his peril' without the protection of parliamentary privilege. In these same circumstances, however, he is afforded the protection of the common law like anyone else to the extent that it would apply.

Onus on Member A Member of either House of Parliament is afforded the same protection as a news reporter or anyone else in reporting on the events in Parliament. The qualified privilege of the news reporter is provided as long as he gives a fair and impartial account of what has transpired on the occasion of absolute privilege, but this privilege is lost on proof that the defendant published the report maliciously.2 In this way the repetition outside of remarks made inside the House that were defamatory would imply a malicious intent that a Member would be hard-pressed to rebut. In other words, when a Member publishes outside the House a speech given in the House that ...has thrown out reflections injurious to the character of the individual, the only question is whether the occasion of that publication rebuts the reference of malice arising from the matter of it. Has he a right to reiterate these reflections to the public: and to address them as an oratio ad populum in order to explain his conduct to his constituents? There is no case in practice nor I believe any proposition laid down by the best text writers upon the subject that tends to such a conclusion.3

When assisting constituents in their complaints of public officials On the other hand, it would be part of the Members' parliamentary and representative function to assist constituents in their complaints 1 2 3

R. v. (Lord) Abingdon (1794), 1 Esp. 226, 170 E.R. 337; R. u. Creevey (1813), 14 Rev. Rep. 427. Wesson v. Walter (1868), L.R. 4 Q.B. 73; Gatley, 6th ed., para. 601. Ellenborough Ch. J., in R. v. Creevey, supra, note 1 at 431.

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against public officials. A common-law rule is that a communication made bona fide upon any subject matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contains a criminating matter, which without this privilege would be slanderous and actionable.4 Whether or not the occasion gives that privilege is a question of law for the judge; but whether the party has fairly and properly conducted himself in the exercise of it is a question for the jury.° In R. v. Rule, the court held that a Member to whom a written communication is addressed by one of his constituents, asking for his assistance in bringing to the notice of the appropriate minister a complaint of improper conduct on the part of some public official (a police officer or justice of the peace) acting in the constituency in relation to his office, has sufficient interest in the subject matter of the complaint to render the occasion of such publication a privileged occasion. The court had found that the accused constituent, like every other elector and inhabitant of the locality, had an interest in the conduct of public functionaries.6 In Parlett v. Robinson, a Member of the Canadian House of Commons, who was also the official spokesperson for his party on the Department of the Solicitor General, received a communication from a constituent suggesting impropriety on the part of the plaintiff, who was an official in employ of the Correctional Service of Canada. The British Columbia Court of Appeal held that the Member having failed to persuade the Minister to order a public inquiry, if he had an honest belief that there had been impropriety within the Correctional Service of Canada with regard to taking advantage of the work of inmates, it was then the Member's duty to ventilate his concerns in a way that would persuade the Minister to have an investigation conducted into the matter. The electorate in Canada have an interest in knowing whether the administration of the Correctional Service is being properly conducted by the officials of the Department of the Solicitor General. By calling a press conference, the publication in that manner was not unduly wide and the qualified privilege was thus not lost.?

4 5 6

7

R. v. Rule, [1937] 2 KB. 375 at 379, citing Harrison v. Bush (1856), 5 E. & B. 344 at 348, 119 E.R. 509. Dickson v. Earl of Wilton (1859),1 F. & E 419 at 426. The only other consideration in the Canadian context that the courts may consider significant would be whether it was a matter within the legislative competence of Parliament rather than the provinces. See Beach v. Freeson, [1972] 1 Q.B. 14; the practice of law is a provincial matter. Thomas ArthurAnthony Parlett v. Svend Robinson, unreported, Vancouver, B.C., July 22, 1986, Court of Appeal (Vancouver Registry CA003879).

Protection Afforded Apart from Parliamentary Privilege

109

When assisting constituents in interest of ending abuses In Gipps v. McElhone,8 the court held: Since every member of the public has an interest in putting an end to abuses — in preventing a waste of public money — in opposing the creation of works in an efficient manner — in checking improper expenditure, and may express his opinion on any question affecting the public health or convenience, communication on such subjects, made bona fide, and to a person having power to prevent or remedy the wrong, is privileged; that is, if it is made bona fide, and for the purpose only of guarding against a public injury. The facts were these. A public inquiry was being made touching a certain scheme for supplying the city of Sydney, Australia with water. The plaintiff was the originator or a very warm advocate of this scheme. He said that it was a cheaper and better scheme than a rival one that was proposed. Mr. Withers was an M.P. and an alderman of Sydney, and had, at a public meeting of the citizens, been appointed chairman of a committee formed to advocate the plaintiff's scheme. In a conversation with Mr. Withers about this scheme, the defendant used the words complained of, and at Mr. Withers' request wrote them down in a pocketbook of that gentleman's. The words are as follows: "Gipps' Water Supply, Head of Turon to Wallaby Rocks Hydraulic, scheme utter failure, owing to taking pipes over mountains higher than source of supply." The imputation was the plaintiff was so inefficient as an engineer that he could not take proper levels, and that in constructing a conduit he had tried to make water run uphill. It tended to show that his opinion on water schemes was not valuable. The court held that this communication was privileged. In this instance, the fact that the defendant Member had subsequently placed a question on the Notice Paper in respect of the matter was irrelevant to the finding of the court (see Chapter 5). Letters from the commanding officer of a regiment to his immediate superior, containing charges against the colonel in command, and a conversation with a Member of Parliament as to a question to be put in the House of Commons relative to the dismissal of the colonel on those charges, are communications made on a privileged occasion. If it has been abused, the privilege is gone, but if the communications were made bona fide, and in the discharge of duty merely and not motivated by spite or "malice", they are privileged. It lies on the party who would deprive the other party of his privilege to show what the law calls "malice" (i.e. improper motive), because until the contrary is shown, statements made on an occasion of privilege are presumed to have been in good faith. The jury found that the defendant in all the circumstances was actuated by 8

(1881), 2 N.S.W. 18 at 22 (Aust.).

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malice and was not acting in good faith and therefore found for the plaintiff.9 A Member of the U.K. House of Commons who receives a letter from a constituent complaining about the plaintiff solicitors and who sends it on to the Lord Chancellor and the Law Society has an interest in receiving complaints from constituents about the constituency and has a consequential duty or interest in passing the complaint on to the proper authorities. A solicitor is on the same footing as professional men at the service of the public. Therefore, the M.P. is protected by (qualified) privilege in publishing the letter by sending it on to the proper authority. 1°

Disclosures by informants or constituents to Members In the U.K., where a Member of Parliament receives information in confidence that he uses in his inquiries, the court in a civil action will not compel him to disclose the name of his informant.11 The special position of a person providing information to a Member for the exercise of his parliamentary duties has been regarded by the courts as enjoying qualified privilege in law.12 In Canada, a Member of the Legislative Assembly of Ontario was not compelled by a provincial (criminal) court judge to disclose the name of his informant or whether he had received any documents in respect of disclosures he made in the legislature. However, on an application to the High Court of Ontario, Steele J. said the provincial court judge had no discretion and thus the Member was required to answer questions concerning the name of his informant. "An informant to a Member of the Legislature is not in the same position as an informant to the police. His purpose is to obtain public action by assisting in the legislative process or to obtain sufficient publicity to compel some public action rather than the direct enforcement of the law."13 In a reference to the Court of Appeal by the Lieutenant-Governor in Council under the Constitutional Questions Act concerning legislative privilege," the Court of Appeal said that the intent of s. 37 of the Legislative Assembly Act was to enact the common-law rule of freedom of speech so as to allow Members to express 9

10

11

12 13 14

If the defendant could have proved the truth of the statements, i.e. justification, to the satisfaction of the jury, the jury would have found for the defendant; see Dickson v. Earl of Wilton, supra, note 5. Beach v. Freeson, supra, note 6. Per Lord Denning M.R. in D. v. National Society for the Prevention of Cruelty to Children, [1976] 3 W.L.R. 124 at 133, in a dissenting judgment,which was upheld on appeal to the House of Lords, [1977] 2 W.L.R. 201. May, 21st ed., p. 133 and cases cited. See also Chapter 5. Re Abko Medical Laboratories Ltd. and The Queen (1977), 77 D.L.R. (3d) 295 at 303. Reference Re Legislative Privilege (1978), 18 O.R. (2d) 529 (CA).

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their views in the Assembly or a committee thereof without fear of an action for libel; so "the fact that a Member discusses an issue in the Assembly may not prevent a criminal court from compelling a Member to disclose the source or content of a communication made to him by an informant."15 Section 37 is not as widely drafted as Article 9 of the Bill of Rights, 1689 because it does not expressly forbid the questioning elsewhere of what was said and done in the legislature. Nevertheless s. 52 of the Legislative Assembly Act provides that the Act does not exhaust the Members' privileges and Article 9 of the Bill of Rights, 1689 applies to its proceedings.16 Arguably the law of the U.K. would apply in the case of Canadian Members of Parliament and also in the case of Members of the legislatures, because of the application of Article 9 of the Bill of Rights,. 1689 which clearly states that "debates...ought not to be impeached or questioned in any Court or place out of Parliament." Article 9 of the 1689 Act was not an enactment of the common-law rule, but rather an enactment of the lex et consuetude parliamenti, which had as its purpose a defence to actions (for example, treason) at the suit of the Crown generally: civil actions probably could not arise then (1689), because it was contrary to and in fact a contempt of the House to publish what was said in the House.17 Moreover, the common-law rule of freedom of speech in the legislature referred to by the Court of Appeal18 includes freedom from criminal prosecution.19 However, like any other citizen, a Member of either House of Parliament or of a legislature of a province who attorns to the jurisdiction of the court may be asked the source of the information received in a personal or official capacity. Yet anything the Member says in the House may not be questioned thereon, because that would be calling into question and impeaching (prejudicially affecting) what he said in the House. Alternatively, a Member is not a compellable witness in a criminal or civil trial 20

15 16 17 18 19 20

Ibid., at 534. See Chapter 1 and Chapter 3 in respect of privileges of Members of provincial legislatures. See Chapter 5, Proceedings in Parliament text at notes 41-44. Supra, note 13. Supra, Chapter 1. A Member of Parliament need not respond to a summons to attend as a witness in a criminal or civil matter while Parliament is in session and for 40 days before or after. See Chapter 9.

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Summary in respect of Members of Parliament 1.

Where he receives information in his capacity and function of Member of Parliament in regard to which he would have, as M.P., a common interest, he may pass that on to the proper authority, whether or not he uses the information in a proceeding or debate of Parliament, provided he does so in good faith.21 But no qualified privilege exists where a Member of Parliament speaks out as he sees fit to the public generally, i.e. where the defamation was not substantially a fair account of what was said during a proceeding in Parliament.22

2.

Where he used the information in a proceeding in Parliament (upon the application of the Bill ofRights, 1689 or the common law) or in a legislative assembly, a court may find the Member is not compelled to reveal his source to any court if it involves questioning what was said in a proceeding in Parliament. The special position of a person providing information to a Member for the exercise of his parliamentary duties has been regarded by the courts as enjoying qualified privilege in law.24 Otherwise communications between Members and constituents are not protected by parliamentary privilege.25

3.

Publication by a Member of the House of Commons by calling a press conference to persuade a minister to establish an inquiry to investigate an alleged impropriety by a public servant (the minister had refused a request for same) is not unduly wide so as to lose the qualified privilege.26

Summary in respect of constituents 1.

A constituent may in good faith communicate to a Member of the House of Commons in his representative capacity upon any subject matter in which the constituent has an interest or in reference to which he has a duty.27

2.

"The interest may be in respect of very varied and different matters; indeed, the only limitation appears to be that it should be something legitimate and proper, something which the courts will take

21

Qualified legal privilege. Whitaker and C.U.PW. v. Huntington (1980), 15 C.C.L.T. 19 (B.C.S.C.). 23 Bill of Rights,1689, Art. 9 in respect of both civil and criminal matters; D. v. National Society for the Prevention of Cruelty to Children, [1976) 3 W.L.R. 124; Adams v. Fisher (1914), 110 L.T. 537 in respect of civil matters. 24 May, 21st ed., p. 133 and cases cited. See also Chapter 5. 25 Debates, May 19, 1989, p. 1953; supra, note 15. 26 Parlett v. Robinson, supra, note 7. 27 R. v. Rule, supra, note 5. 22

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cognizance of, and not merely an interest which is due to idle curiosity or a desire for gossip.”28 3. While constituents who provide information voluntarily to Members in their personal capacity are not protected by parliamentary privilege, whether or not such information is subsequently used in proceedings in Parliament, should they provide information that is used by the Member in his parliamentary duties, they have been protected by the common law.29

28 29

R. v. Rule, (1937] 2 KB. 375 at 380-1. May, 21st ed., p. 133 and cases cited. See also Chapter 5. H.C. Paper (1954-55), No. 112 U.K., cited in Halsbury, 4th ed., vol. 34, p. 598.

n..

CHAPTER 7

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

Official Secrets Act (U.K.) The question of a Member's immunity from prosecution in its contemporary forms first arose in 1938 in the U.K. as a result of a letter written by Duncan Sandys, M.P., to the Secretary of State for War, in which he sent a draft question setting out secret information and advised that if he did not get a satisfactory reply he would put the question on the Order Paper. The subject of the question was the unsatisfactory state of air defences, and the Attorney General wrote to Sandys to ask him the source of his secret information, referring to the Official Secrets Act with a hint that he was liable to be questioned by the police. The matter was not raised as a question of privilege but rather as a question for the guidance of the Chair2 and on the advice of the Speaker the matter was referred to a Select Committee.3 In its full report, the committee gave its views on what constitutes and what does not constitute a "proceeding of Parliament"4 but also made it clear that Article 9 of the Bill of Rights, 1689 is a full defence to the Official Secrets Act when the Member speaks in the House: "Your Committee are of the opinion that disclosures by members in the course of debate or proceedings in Parliament cannot be made the subject of proceedings under the Official Secrets Act. "5 Erskine May suggests that "The language of Article 9 of the Bill of Rights is designed to make this clear. Except by some forced construction words spoken in debate cannot be taken out of the category of proceedings 1 2 3 4

It probably arose first in the case of Sir John Eliot in 1629; see below. U.K. Debates, vol. 337, p. 1534-6. Ibid.; c.c. 2155-2237. See Chapter 5. H.C. 101 (1938-39), para. 10 (UK), adopted by the House of Commons November 21, 1939.

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in Parliament"6; he finds support for this in the decision of the House of Lords when it reversed upon writ of error7 the decision in 1629 of the King's Bench when Sir Eliot, Denzil Hollis, and others were convicted for seditious words spoken in debate and for assaulting the Speaker during debate (they had held the Speaker in the chair by force to prevent his adjourning the House at the King's bidding before a motion had been made). The committee in 19398 correctly pointed out that it is a question of jurisdiction and that this is recognized by the courts in Stockdale v. Hansard: "For any speeches made in Parliament by a Member... hazardous to the public peace, that Member enjoys complete immunity,"9 i.e. whatever is said in debate is to be questioned in Parliament and nowhere else. Ex parte Wason also supports this.10 The U.K. Committee in 1939 went on to "think that a disclosure made by a Member to a minister or by one Member to another directly relating to some act to be done or some proceeding in the House, even though it did not take place in the House, might be held to form part of the business of the House and consequently to be similarly protected."11 With respect to acts within the Chamber, Stephen J., in Bradlaugh v. Gossett, pointed out that while the case of Sir John Eliot and others may be a leading authority for "the proposition that nothing said in Parliament by a Member as such, can be treated as an offence by the ordinary courts," it is noteworthy that "the House of Lords carefully avoided deciding the question whether the Court of King's Bench could try a Member for an assault on the Speaker in the House."12 The same court had this to say, however: "I know of no authority for the proposition that an ordinary crime committed in the House of Commons would be withdrawn from the ordinary courts of criminal justice. "13 6

7 8

9 10 11

12 13

May, 19th ed., p. 90. No conflict arises with Beauchesne, because Art. 9 says "and debates...in Parliament"; accordingly words spoken in debate in Parliament cannot be taken out of the category of debates (or proceedings) in Parliament (see supra, Chapter 5, note 17). April 15, 1668. The complete history of this case is given in 3 Howell's State Tr. 294-336. H.C. 101 (1938-39), para. 9 (U.K) (1839), 48 Rev. Rep. 326 at 403. (1869), L.R. 4 Q.B. 573. H.C. 101 (1938-39), para. 10 (U.K.). (1884), 12 Q.B.D. 271 at 284. Ibid. at 283. In fact there is no history of the House of Commons claiming such jurisdiction nor any ancient custom or practice. Accordingly no privilege to do so exists (Stockdale u. Hansard). See also infra, the Criminal Law and the Internal Regulations of the House of Commons.

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More recently in the U.K., on April 20, 1978, following upon the revelation in the House of Commons of the identity of a "Colonel B" who had given evidence anonymously as a witness in a prosecution under the Official Secrets Act, the Director of Public Prosecutions issued the following statement: The legality of revealing the identity of Colonel B, a witness in the prosecution of Aubrey, Berry, and Campbell, is the subject matter of pending proceedings for contempt of court before the Divisional Court of the High Court of Justice. It is not accepted, despite the naming of the Colonel on the floor of the House of Commons, that the publication of his name would not be a contempt of court, even if it was part of a report of proceedings in the House.

Official Secrets Act — Canada's The Attorney General of Canada also supported the U.K. Committee of 1939 when in 1978 he said in the House of Commons that the statements of a Member in the House of Commons that were allegedly contrary to the national interest "cannot constitute the foundation for a prosecution under the Official Secrets Act since it is well established that no charge in a court can be based on any statement made by an Honourable Member in this House."15 In 1977 in Canada, it was revealed that the government had, by SOR/76-644 under theAtomic Energy Control Act, prohibited information gained by persons in the employ of companies engaged in a government-arranged cartel being given out. Five Members of the House of Commons took issue with these statutory orders and regulations and brought a notice of motion in the Supreme Court of Ontario to determine, inter alia, whether SOR/76-644 overrides or abridges existing parliamentary privileges.16 In his judgment, Evans C.J.H.C. noted that the U.K. House of Commons agreed with the conclusions of the 1939 report" and stated that the "Report of the committee and the ruling of the House of Commons [had] obvious implications for the present case. The Official Secrets Act can be compared to SOR/76-644 in that both require strict confidentiality of specific information."18 14

15 16 17 18

R.S.C. (1985) c. 0-1. The Act has been described by the MacKenzie Royal Commission on Security (P.C. 1966-2148), para. 204, as "an unwieldy Statute couched in very broad and ambiguous language." Hon. S.R. Basford PC., Debates, March 17, 1978, p. 3882. Re Clark and AG. Can. (1977), 81 D.L.R. (3d) 33 (H.C.). H.C. 101 (1938-39) (U.K.). Supra, note 16 at 56.

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After finding that "the Members of Parliament would be free to use the information in Parliament,"19 the court went on to hold that a Member does not have the right to release the same information to constituents. In this respect the court does not follow the dictum in Davison v. Duncan,2° but, it is submitted, correctly follows R. v. Abingdon and R. v. Creevey.21 The court also shares the views of the U.K. Committee Report in paragraph 4, when it states "words spoken or things done by a Member beyond the walls of Parliament will generally not be protected," and, particularly, paragraph 15 of the report, which states that a Member who discloses information of the kind in question in a speech in his constituency or anywhere beyond the walls of Parliament would clearly not be protected by parliamentary privilege from proceedings under the Acts.22 Evans C.J.H.C. added that the Member "may release that information to the media," and went on, "However, the privilege of the Members cannot be extended to protect the media if they choose to release the information to the public." In one sense, i.e. in the case of the Member committing a crime of sedition or criminal libel in debate, the learned judge was merely expressing the law as it has been since Abingdon in 1794.23 After all, Abingdon was convicted in criminal court for publishing a criminal libel that had been uttered within the protection of the Chamber. In other words, the publication outside is a matter for the ordinary courts. The Attorney General of Canada told the House of Commons that the Member for Leeds would not be prosecuted under the Official Secrets Act for repeating outside the House what he said in the House because "there is some doubt as to the extent to which a court would view these statements as being protected by any parliamentary privilege or immunity "24 While the Member's absolute privilege may "not be confined to acts done within the four walls of the House," and while the Member is "privileged and protected by let et consuetudo parliamenti in respect of anything he may say or do within the scope of his duties in the course of 19 20

21 22 23 24

Ibid. (1857), 7 EL & BL 219, 119 E.R. 1233, where the court in an extrajudicial remark suggested that a Member has the right to release information to his constituents. The case involved the proceeding of an Improvement Commission rather than of the House. "Has he a right...to address them as an oratio ad populum in order to explain his conduct to his constituents?" See R. v. Creevey (1813), 14 Rev. Rep. 427 at 431-432. Stockdale v. Hansard and Wason v. Walter apply. Rev. Rep. 733. Debates, March 17, 1978, p. 3882.

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parliamentary business,"25 a Member of Parliament is otherwise amenable to the law. Accordingly, if a Member is not prosecuted under the Official Secrets Act for repeating outside what he said inside the House, arguably it is not because he is protected by parliamentary privilege. Rather, once the "official secret" is discussed or raised in the House, the Crown could not, in any subsequent prosecution if repeated outside, establish that it was a "secret" when repeated outside the House.26

The criminal law The dictum of O'Connor J.A. in R. v. Bunting applies also in respect of criminal statements made during a proceeding in Parliament. Similarly, on the authority ofR. v. Abingdon and R. v. Creevey, publication outside a legislative body by a Member will not be protected. However, repeating outside the House is a far cry from putting a contemplated Order Paper question before a minister. One can see a nexus with a proceeding in Parliament (i.e. the subsequent question on the Notice Paper and then on the Order Paper in that instance) but publishing by releasing information to the press after revealing it in the House is, it is submitted, a publication unconnected with the proceeding in Parliament in which the Member had participated. Otherwise, any repetition outside the House, be it unfair or partial, would be considered part of the proceeding. But Abingdon and Creevey were convicted in criminal court for doing that very thing. The press have qualified privilege in reporting what was said on a privileged occasion in the House but this privilege set out in Wason v. Walter" is a defence to a civil action and does not authorize any blasphemous or seditious matter in a newspaper or in a broadcast, and neither does the provincial statutory protection.28 There is an exception, however, in the case of defamatory libel (a criminal offence) contained in a parliamentary debate29 or in a petition.39 A Member is not otherwise protected by parliamentary privilege from criminal prosecution for publication outside the House. Otherwise, this would fly in the face of the original reason for protecting the Member — so that the Crown would not charge him with treason for 25 26 27 28 29 30

Dictum of O'Connor JA., R. v. Bunting (1885), 7 O.R 524 at 563 (CA). R. v. Toronto Sun Publishing Ltd. (1979), 98 D.L.R. (3d) 524 (Ont. Prov. Ct.). (1868), L.R. 4 Q.B. 73. Ontario Libel and Slander Act, R.S.O. (1980), c. 237, s. 3(5); most provinces have comparable provisions. Criminal Code, R.S.C. (1985), c. C-46, a. 307(1). Ibid., s. 306.

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words said in the House. The cases of Abingdon and Creevey, which have been cited with approval in Stockdale v. Hansard and Wason v. Walter, clearly point out that the Member repeats at his peril outside the House what he says inside the House, and is answerable to civil or criminal prosecution. On the other hand, a report tabled in the House and printed and published on the authority of the House containing otherwise restricted matter could be quoted with impunity, by virtue of the Parliament of Canada Act,31 from both civil and criminal liability.

The criminal law and the internal regulations of the Houses of Parliament The courts have recently ruled that if Parliament wishes to remove the jurisdiction of the courts over matters of criminal law and its application to the internal regulation of the Houses of Parliament, and particularly the use or misuse of the Members' budgets, it must do so unequivocally. In 1991 Parliament amended the Parliament of Canada Act32 with respect to the Board of Internal Economy (Board) and provided in new s. 52.6 that: 1.

The Board has the exclusive authority to determine whether any previous, current or proposed use by a Member of the House of Commons of any funds, goods, services or premises made available to that Member for the carrying out of parliamentary functions is or was proper, given the discharge of the parliamentary functions of Members of the House of Commons, including whether any such use is or was proper having regard to the intent and purpose of the by-laws made under subsection 52.5(1).

2.

Any Member of the House of Commons may apply to the Board for an opinion with respect to any use by that Member of funds, goods, services or premises referred to in subsection (1).

In 1994 the Court of Appeal of Ontario33 held that the amendment did not change the law and that this is confirmed when read with s. 52.7 and 52.9.34

31 32 33

R.S.C. (1985), c. P-1, s. 7-9. Statutes of Canada (1991), c. 20. R. v. Bernier, Court of Appeal, Ontario, not reported, March 29, 1994. (File C16623). 34 See Appendix. The original Bill (C-79, 34th Parliament (2nd Session)) would have required the prior approval of the Board of Internal Economy of the House of Commons for the execution of search warrants. (See Bernhardt, at p. 198.)

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The Member of Parliament was charged with fraud in 1990, and a few days before the date fixed for the preliminary inquiry he asked the Board for an opinion pursuant to s. 52.6(2). He then brought a motion before the judge hearing the preliminary inquiry asking him to suspend the proceedings while awaiting the opinion of the Board. The judge refused the request and the accused then brought a motion for a prerogative writ of prohibition to suspend the preliminary inquiry until the Board rendered an opinion. Both the judge hearing the preliminary inquiry and the judge hearing the motion for a writ of prohibition rejected the position of the accused that the Board had the exclusive jurisdiction concerning the proper use of moneys involved in the fraud charges. They held that the jurisdiction of the courts in criminal matters was not ousted by the amending Act. The Court of Appeal agreed with this position and Arbour J.A. for the court held that Parliament had not in any way manifest an intention to set aside the jurisdiction of the courts presently authorized to apply the Criminal Code. While the Board may exclusively give opinions on the proper use of Members' budgetary funds, this did not have the effect of supplanting the Criminal Code nor the jurisdiction of the courts to apply the Code while leaving the function of the Board to decide on the proper use of these funds. The Court of Appeal of the Province of Quebec was of the same view in R. v. Fontaine.35

Conclusion 1.

The Member may with impunity by words spoken in a debate in Parliament otherwise breach the Official Secrets Act, or any Act requiring strict confidentiality, and the Criminal Code; a repetition outside by the Member or a report or the speech in the news may not be considered a breach of the Official Secrets Act since the element of "secrecy" would then be absent, the information having been made public when revealed in the House.36

2.

The Member is not protected by parliamentary privilege against criminal prosecution if he repeats outside the House remarks he made inside the Chamber in debate, whether he gives it at large or to a constituent.

3.

While the press have statutory protection against criminal prosecution when publishing extracts of "reports, papers, votes or proceedings" under the Parliament of Canada Act and against criminal prosecution when publishing defamatory libel contained in

35 Quebec

Court of Appeal, March 24, 1995, not reported (No. 200-10-000049-929; 200-36-000008-920). 36 See supra, note 26.

122

4. 5.

6.

7.

37

38

40 41 42

43

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a legislative publication or in a petition,37 they enjoy no such protection when reporting seditious statements should they ever be made in debate,38 but they enjoy qualified privilege in reporting defamatory libel contained in a legislative debate.39 The journalist's or Member's qualified privilege in respect of civil proceedings has no relevance to criminal prosecutions, except in the case of defamatory libel.° Soliciting or persuading a person to give information is not a "proceeding in Parliament" and thus a Member would not be afforded any parliamentary protection for soliciting, etc., information that he had reasonable grounds to believe was in contravention of the Official Secrets Act,41 even if it was intended for and used in Parliament. Members of Parliament are amenable to the criminal law except in respect of words spoken or acts done in the transaction of parliamentary business. While a Member of either House may participate in debate with irrelevant remarks and defamatory libel, it is difficult to envisage a criminal act that would fit into or be part of a parliamentary proceeding.42 Thus, there is "no authority for the proposition that an ordinary crime committed in the House of Commons would be withdrawn from the ordinary course of criminal justice."43 Such act in question would, while not part of a "proceeding in Parliament," have an aspect of contempt of Parliament that would be dealt with by the House, and the criminal aspect would be dealt with by the courts." It is correct in law to say that any words spoken in Parliament or acts done that form part of a "proceeding in Parliament" could not be dealt with by the criminal courts, at least not without the authority Criminal Code, R.S.C. (1985), c. C-46, s. 306. A legislative or parliamentary committee is a court for some purposes of the criminal law. In 1962 a private detective was convicted of having committed perjury before a Senate committee and sentenced to five years' imprisonment; see R. v. Charron, unreported judgment, May 2, 1962, (Ottawa G.S.P.). There is no statutory protection for their publication. See Criminal Code, s. 59, 61. See the Criminal Code, supra, note 35, s. 307(1). When Parliament was hearing divorce petitions it was an offence to report the evidence taken (s. 307(2)). See also R. v. Rule, (1937) 2 K.B. 375. Supra, note 26. H.C. 101 (1938-39) para. 16 (U.K.); Attorney General of Canada, Debates, March 17, 1978, p. 3882. The one "criminal act" would be the assault occasioned on a Member when removed by the Sergeant-at-Arms pursuant to order of the House, which is a good defence in law and thus not a "criminal" act. Bradlaugh v. Gossett, supra, note 13. R. v. Bunting, supra, note 24 at 536, cited with approval in Royal Commission v. Boulanger (1962), B.R. 251 at 261-264 (Que. CA).

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of an act of Parliament or the permission of the House.46 While there has been no case of a Member having allegedly committed a criminal act in Parliament since Eliot's case in 1629,46 incidents have occurred in the Canadian House of Commons that, while not forming part of the "proceedings in Parliament," occurred during a sitting of that House.47 In most cases, the House could have held the person in question in contempt of Parliament contemporaneously with criminal proceedings. The defence of double jeopardy would probably not prevail in the court proceedings, although it would no doubt be considered in mitigation of sentence. 8. The Criminal Code applies to the internal regulation of the Houses of Parliament, including the alleged criminal misuse of Members' budgets (R. v. Bernier, supra, note 33 and R. v. Fontaine, supra, note 35).

45

See Canadian cases ofMcGreevyM.P and of Connolly, where the House permitted the use of parliamentary proceedings in the criminal prosecution. (Journals, April 12, 1892, p. 234-35, and R. u. Connolly (1891), 22 O.R. 220 at 228 (CA). as Charles I; this judgment was subsequently repudiated by the House of Commons, July 8,1641. See also resolution of the House of Commons, November 12 and 13, 1667; the House of Lords similarly condemned the judgment on April 15, 1668. 47 Such as a spectator hurling a container of animal blood from the gallery onto the floor of the chamber, August 24,1964; or a group of persons chaining themselves to a seat in the gallery May 11, 1970, compelling the Speaker to suspend the sitting. The person who hurled the container pleaded guilty in provincial criminal court the next day to the charge of wilfully causing damage under the provisions of what is now s. 388 of the Criminal Code: R. tr. Cowlishaw, unreported judgment (Ont. Mag. Ct.). In another case, a woman chained herself to a gallery seat and threw leaflets on the floor of the Chamber, March 4, 1971; she was charged with causing a disturbance under s. 171 of the Criminal Code but was acquitted because the court said there was some doubt on the evidence that she attempted to disrupt the House: R. u. Culhane, unreported judgment, April 19, 1971 (Ont. Prov. Ct.). Of the twenty-three (23) cases between 1982 and 1995, of persons removed for inappropriate activity on the precincts of the House of Commons, only one person, who had entered the Chamber and placed his hands on the mace as he addressed the Speaker, was charged by the Ottawa Police for trespassing and causing a disturbance. The charges were later withdrawn by the Crown.

CHAPTER 8

The Use of Parliamentary Matters as Evidence in Court

Introduction One of the privileges of a legislative body is to control the publication of its debates and proceedings by prohibiting their publication. While at first blush it seems incongruous to deal with debates or proceedings as evidence in court after attempting to show that they may not be impeached or questioned in any place out of Parliament, it will be seen, it is hoped, that there is no inconsistency in this and that the principle is not diminished or compromised in the practice.

Reports, papers, votes or proceedings To bring into question parliamentary events could constitute a contempt of Parliament, because it represents a breach of that privilege of the House that gives it the sole jurisdiction over its own proceedings, as set out in Article 9 of the Bill of Rights,1689. In respect of the "report, paper, votes or proceedings," while the U.K. House of Commons committed counsel for commencing an action against the publisher of the House of Commons for alleged defamation contained in a report tabled in the House of Commons and published in 1837, Stockdale's case compelled the House of Commons to legislate in respect of reports tabled in the House that were published. The court in Stockdale v. Hansard was not in fact "questioning" the resolution of the House that said that the House could with impunity print and publish a report that was tabled in the House but otherwise formed no part of the proceedings of Parliament and that contained defamatory matter. The resolution of the House of Commons had the intended effect of changing the general and public law because it changed the rights of third parties exercisable outside the House. Therefore, rather than questioning the proceedings in Parliament that resulted in the resolution in question, the court was examining the legal effect that such a resolution could have on the rights of a person exercisable outside the House: i.e. the court will look into the validity of the power or privilege claimed in litigation between parties where the defendant legislative body asserts the privilege as a defence and it becomes therefore necessary to determine its legality to do justice between the parties in the action.

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The court said only Parliament could do what the House alone had done by resolution. This resulted in the Parliamentary Papers Act, 1840, which contained in substance the resolution that the court had said had no effect; in Canada in 1869 there was enacted the same legislation in what are now s. 7, 8, and 9 of the Parliament of Canada Act. Section 7 permits the introduction in court as evidence in a civil or criminal proceeding for or on account of, or in respect of the publication of any "report, paper, votes or proceedings" by or under the authority of the Senate or House of Commons, a certificate of the Clerk or Speaker stating that the "report, paper, votes or proceedings" were published by the authority of the House together with an affidavit verifying such certificate. The court or judge must then put an end to the proceedings. Where the action is on account of or in respect of the publication of a copy of the "report, paper, votes or proceedings," s. 8 permits the defendant to file the copy of the "report, paper, votes or proceedings" together with an affidavit verifying the report, etc., and the correctness of the copy. Once again, the court or judge must then put an end to the proceedings. Finally, s. 9 of the Act provides that where the action is for printing any abstract from or extract of any such "report, paper, votes or proceedings," the report, etc., may be given in evidence, and if the defendant shows he published it bona fide without malice, he will have a successful defence. Thus, while the courts may not question the "proceedings in Parliament," they are permitted and are required to examine the full "report, paper, votes or proceedings" to determine whether the alleged abstract from or extract of the report, etc., reflects the good faith of the defendant. In respect of s. 9 of the Parliament of Canada Act, the court must examine the "report, paper, votes or proceedings" to determine whether the statutory defence of qualified privilege is applicable in the particular circumstances of the case.

Journals of the House The Journals of the House (until 1994 from day to day called Votes and Proceedings) record what was done in the House. The Journals, in the form of written scrolls, are maintained by the Clerk of the House and the Clerk's assistants while at the table in the Chamber. They keep track of the various events of a procedural nature that take place and of the various proceedings that the House touches upon. Thus, this would cover the questions on the Order Paper that were answered; the various notices of motion for the production of papers that were disposed of; the disposition of any government or private Member's motions or bills, and the disposition of any amendments thereto; reports from committees and

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the disposition of any motion respecting the report; tabling of any reports, returns, correspondence, etc., by a minister of the Crown or by a parliamentary secretary; whether the House had gone into a Committee of the Whole House, the report from that committee, and in the event the House had gone into a Committee of the Whole House because a bill had been referred to such a committee, whether only progress was being reported, or the bill was being reported with or without amendment; the disposition of any other motions; divisions; and how Members voted. The Journals do not record what was said, save in recording what Member moved a particular motion, etc. Decisions of the Speaker, however, have been only arbitrarily put in the Journals.1 Because on the one hand the House could prohibit publication of its proceedings, and on the other the court imposes limitations on what it will receive in evidence, the production of the "proceedings in Parliament" will depend both on the House from which it emanates and on the court in which it is tendered in evidence. The Journals record the proceedings that take place in the Chamber and in the committee when those proceedings are reported. As mentioned earlier2 there are other "proceedings" that are not recorded, yet are nevertheless proceedings for purposes of being afforded protection under the Bill of Rights, 16893 — for instance, correspondence and discussions with the office of the legislative counsel respecting a proposed bill; correspondence or discussions with a minister respecting a matter before the House, particularly when followed by some action in the House by the Member by way of a question; or by introducing a bil1,4 a notice of motion, or a motion to produce documents, and the consequential protection afforded because these are printed and published by the House. On the other hand, the contents of matters contained in returns to orders, petitions, and reports tabled by government departments are rarely 1

2 3 4

It must be remembered that a regular Hansard in Canada did not start until the 1870s and therefore the Journals recorded rather fully. As a result, until recently many Speaker's rulings are found in the Journals notwithstanding that these rulings are not orders of the House and do not reflect what the House has done — the traditional purpose of the Journals. The present pnictice is to restrict rulings to the Debates unless it constitutes an order to do something as a consequence, such as to reprint a bill (see Journals, January 19, 1981, p. 1161) or relating to the report stage of a bill. See Chapters 3 and 5. 1 Will. & Mar., seas. 2, c. 2 (U.K). SeeN. W.T. Public Service Assn. a. Commr. of ALW.T., [1980] 1 W.W.R. 385 at 414, where in a decision of the Court of Appeal it was held that "[i]t would...be remarkable for a court to grant an injunction or to accept an undertaking, the effect of which is that while the territorial council could enact a bill, any of its civil servants who performed their duties by recommending it or preparing it for enactment would be guilty of contempt of court. To construe an injunction or an undertaking as having that effect would, in my view, be a last resort of construction."

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printed and published in the Journals or otherwise printed and published by the House; consequently, while they may be mentioned by title in the daily Journals, if they are not published by the House or Senate but are nevertheless quoted therefrom, they do not receive the protection of sections 7, 8 and 9 of the Parliament of Canada Act.

Courts take judicial notice of Journals The courts in England take judicial notice of the "order and course of proceedings in Parliament,"5 and have done so since the late seventeenth century.6 Accordingly, this was part of the law of Parliament referred to in s. 18 of the Constitution Act, 1867, and was enacted along with all the other rights and immunities by s. 4 and 5 of the Parliament ofCanada Act.

Courts also take judicial notice of the existence of any distinct practice and procedure of the House The courts also take judicial notice of the existence of a distinct practice and procedure of the House of Commons in interpreting those statutes when their provisions are related to proceedings in the House. Thus, in A.G. v. Bradlaugh,7 where the issue was whether Bradlaugh had fulfilled the requirements of the Parliamentary Oaths Act, 1866, the court heard evidence from the Clerk of the House of Commons, Sir T. Erskine May, about the actual practice of how Members take and subscribe the oath on taking their seats, which differed from what Bradlaugh said he had done in the House to fulfill the conditions of the Act. This dovetails with the court in Bradlaugh v. Gossett,8 where it is said the House of Commons does its own interpretation of statutes affecting its procedure— "I think that the House of Commons is not subject to the control of Her Majesty's Courts in its administration of that part of the statute-law which has relation to its own internal proceedings...."9

Journals of the House as evidence • Why Journals entries may be relevant While it normally takes an Act of the Parliament of Canada to become part of the general and public law of Canada, where a resolution of 5 6 7 8

Halsbury, 4th ed., vol. 17, p. 76. "And of the order of proceedings in Parliament and their Committees the court will take judicial notice." Lake v. King (1667), 1 Saund. 120, 85 E.R. 137. (1885), 14 Q.B.D. 667. The Member Bradlaugh was convicted of taking the oath of a Member while he was incapable of doing so owing to his want of religious belief. (1884), 12 Q.B.D. 271 — the same Bradlaugh who in 1884 sought a declaration restraining the Sergeant-at-Arms for carrying out a resolution of the House of Commons ordering him to exclude Bradlaugh from the House until he "shall engage not further to disturb the peace." Ibid., at 278.

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either House of Parliament relates to its internal proceedingg, or where it is pursuant to an Act, the resolution is then part of the general and public law of Canada.10 This is one reason why the Journals of the House would be required to be cited in court.

• Common informer actions Two cases show the same reason for wishing to introduce Journals extracts into evidence in court to determine whether a Member voted: Tranton u. Astor in 191711 and Forbes v. Samuel in 1913,12 and thus whether the Member thereupon became liable to penalties to a common informer.13 Another case was also to find out whether a Member voted without having taken the prescribed oath14 and also subject to pay penalties to a common informer.

n Civil or criminal prosecution In the instance of a court determining whether a publisher has a good defence under s. 7, 8, or 9 of the Parliament of Canada Act, where a defendant is required to prove the lack of malice when printing, i.e. publishing, an extract from or abstract of the Journals ("report, paper, votes or proceedings"), Parliament has already provided a means to produce the documents in question as the Act provides that "such report, paper, votes or proceedings may be given in evidence" under the circumstances set out in the Act. When a document is produced at trial, the primary requirement for its admission is that the document be "proved." As in the case of proof generally, the practice and the course of proceedings in either House of Parliament can be proved either by the oral evidence of Members of the House or of servants of the House, or the oral evidence of strangers who were present during the course of proceedings in question. It will be seen15 that the evidence of servants or officers and Members of the House and reporters has been accepted in courts of law concerning the events that take place in the House.16

10

11 12 13 14 16 16

See, for example, statutes requiring a positive resolution of one or two Houses of Parliament before an Order in Council should come into effect. (1917), 33 T.L.R. 383. [1913) 3 KB. 706. An informer who sues on a penal statute that enables anyone to sue to recover the penalty imposed. Chubb v. Salomon (1852), 3 Car & Kir. 75. See Chubb u. Salomons; Forbes v. Samuel; and Tranton v. Astor See Tranton v. Astor (1917), 33 T.L.R. 383; Lake v. King, supra, note 8; A.G. v. Bradlaugh, supra, note 9; Chubb u. Salomons, supra, note 16.

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Position in the U.K. The law of the U.K. in s. 3 of the Evidence Act, 184517 provides that printed copies of the Journals may be admitted as evidence but not as true copies or conclusive evidence of the original. Therefore there is required in addition evidence from an officer of the House either by affidavit showing an extract from the minute book kept by the Clerk at the table in the House of Commons ("scroll" when referring to the House of Commons of Canada) and certifying it as a true copy of the entry, or by the officer giving oral evidence to the same effect.

n Chubb v. Salomons (1851) Thus, in Chubb v. Salomons18 the court refused the production of a printed copy of the Journals of the House of Commons offered with permission of the House, notwithstanding that the officer of the House said that while he did not examine the particular copy of the Journals he was producing with the original papers (i.e. the minute book), he had examined a copy of the Journals with the original paper. The court insisted on being tendered evidence that the copy being produced was compared with the original minute book and certified as a true copy thereof.

n Forbes v. Samuel (1913) In Forbes v. Samuel,19 the question was whether a Member had sat and voted in the House of Commons; rather than producing the Journals showing how each Member voted, the court required the production of the separate book that printed the division lists under the authority of the House and an affidavit certifying that the book was an accurate copy of the division lists. If someone who had been present remembered who voted and how on a particular day, presumably oral evidence of that person would also be admissible. However, this could only be accomplished with the permission of the House, whether or not that person was an employee, because this would be evidence of proceedings in Parliament or of what was said in Parliament.

n Tranton v. Astor (1917) In Tranton v. Astor, the defendant Astor, a Member of the House of Commons (U.K.) elected in 1910, became the proprietor of a newspaper in 1915 that received advertisements from the Crown, and the question was 17 18 19

8 & 9 Victoria, c. 113 (U.K.). Supra, note 14. (1913), KB. 706.

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whether he was liable for penalties for having sat and voted. The court received in evidence the original division lists of the House of Commons.25

n Journals entries must be certified as true copies of original The position in England therefore is that parliamentary Journals are admissible in evidence but are not conclusive; they are proved by producing copies purporting to be printed by the printer of either House and conclusively proved by oral or affidavit evidence of the proper officer who has custody and who can say it was compared with the original. Halsbury sums it up as follows: When a cause is being tried in London, and a Journal of the House is required in evidence, it is usual for an officer of the House to attend with the necessary volumes; in other cases, a certified copy of the required entry in the Journals can be obtained from the Journal Office of the House.21

Position in Canada Canada also had more than its share of "common informers"22 but apparently Parliament in its formative years felt it best to resolve it by legislation. The abuse on the part of Members to contract with the government and the commencement of suits against those same Members had become notorious and required legislation to save a great number of Members, including Ministers of the Crown." Bourinot tells us "where a person requires the Journals of the Commons as evidence in a court of law, or for any legal purposes, he may obtain from the Journal office a copy of the entries required without the signature of any officer, and swear himself that it is a true copy."24 The Supreme Court of Canada recently relied upon an extract from the Journals of the House of Commons, which was a report from a joint committee, as indicative of legislative intent.25 Section 6 of the Parliament of Canada Act provides that upon any inquiry concerning the privileges, immunities, and powers of the Senate 20 21 22 23

24 25

Supra, note 11. Halsbury, 4th ed., vol. 17, para. 151. See supra, note 13. See Norman Ward, The Canadian House of Commons: Representation (Toronto: University of Toronto Press, 1950), p. 86, 87 and references; see also Kelly v. O'Brien, [1942] O.R. 691 (CA) for what may be the only reported instance involving Members of Parliament — a former Senator was sued under the penalty section of the Senate and House of Commons Act, but after the limitation period had expired, and thus the court never reached the merits of the case. Bourinot, 4th ed., p. 186. Kelso v. The Queen, [1981] 1 S.C.R. 199.

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and of the House of Commons or of any Member thereof respectively, any copy of the Journals of the Senate or House of Commons, printed or purported to be printed by the order of the Senate or House of Commons, shall be admitted as evidence of such journals by all courts, justices and others, without any proof being given that such copies were so printed. In any other case, courts may consider that they are evidence without further proof of the facts stated therein under the provisions of s. 25 of the Canada Evidence Act, R.S.C. 1985, c. C-8.

n Journals entries may be evidence without further proof of facts stated therein In 1951, the court in R. v. McGavin Bakeries Ltd. (No. 4)26 was asked to admit extracts certified by the Clerk of the House of Commons from pages of the Journals of the House of a return pursuant to an order of the House, and stated as follows: Journals of the House, by order of the House, are prepared and printed from day to day while Parliament is in session under the heading, "Votes and Proceedings of the House of Commons." They are official records and provisions and regulations as to them appear in the Standing Orders of the House, Beauchesne's Parliamentary Rules and Forms, 3rd ed., 1943, p. 75, and by statute they are evidence for certain purposes, s. 6, The Senate and House of Commons Act, R.S.C. 1927, c.147. Apart from that statutory provision, in my opinion the journals are evidence, without further proof, of the facts stated therein and must be received by me accordingly, if relevant, by reason of their being documents of so public a nature that they come within the provisions of the Canada Evidence Act...in particular s. 25 thereof.27 In the light of this interpretation, the courts in Canada in an action by a common informer may accept certified copies of a Journals entry to prove that a Member sat and voted on a particular day for purposes of s. 36 of the Parliament of Canada Act.

n Summary with respect to the Canadian position of the Journals and proceedings in Parliament as evidence in court 1. The original scroll may, if required, be admitted in evidence and proven by the Clerk of the House of Commons personally or his deputy with permission of the Speaker, or by affidavit.

26

(1951), 12 C.R. 139 (Alta. S.C.).

27

Ibid., at 143. Section 25 was taken from Lord Brougham's EviderweAct,1851,14& 15 Victoria, c. 99, s. 14 (U.K.).

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2.

A "report, paper, votes or proceedings" of either House of Parliament may be given in evidence, in the manner provided, in any civil or criminal action arising from the publication of such report, etc., or an extract or abstract thereof.28

3.

Upon any inquiry concerning the privileges of either House of Parliament or of its Members, there may be admitted in evidence a copy of the Journals of either House as evidence of such Journals without proof that such copies were so printed.29

4.

In any other case Journals entries are admissible without further proof, as evidence of the facts stated therein.30

5.

To impugn the validity of the report of a committee of the House in court proceedings is contrary to the Bill of Rights, 1689, Article 9.31

nThe position in Canada with respect to returns to orders as evidence The Journals reflect what was done by the House — that is to say, introducing bills, adopting motions, adopting orders and resolutions, receiving reports from committees, voting on and passing bills, the list of business to be transacted, etc. When it adopts a motion to make an order for the production of documents and a return is made accordingly, the House does not "certify" the return to the order as to its correctness in fact. The House simply records in the Journals that a Member moved an order for the production of certain documents, that the House adopted that motion, and that there was a return to the order of the House. The court in R. v. McGauin Bakeries Ltd. (No. 4)32 also dealt with the question of the production of returns to orders. The court found they were not relevant in the particular circumstances, but nevertheless said: Different considerations apply to returns made, and recorded in the journals as having been made, by a Minister of the Crown in obedience to the standing orders and an order of the House. By way of illustration a return may comprise a variety of documents and correspondence emanating from different sources on one or more topics expressing different opinions and making perhaps contradictory statements as to fact, for which the Minister has no responsibility, with perhaps in addition copies of replies by him or by 28 29 30 31 32

Parliament of Canada Act, R.S.C. (1985), c. P-1, s. 7-9. Ibid., s. 6. Canada Evidence Act, R.S.C. (1985), c. C-80, s. 25;R. u. McGavinBakeries Ltd. (No. 4), supra, note 26; and Bourinot, 4th ed., p. 186. Dingle v. Associated Newspapers Ltd., [1960] 2 Q.B. 405, varied [1961] 2 Q.B. 162, variation aWd [1964] A.C. 371 (H.L.). Supra, note 26.

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his deputy or other civil servant. As to the material now presented...I am very much inclined to the view that it is inadmissible.33 And later, "I reject the copies of the returns."34

nProduction of papers tabled in the House Extrinsic material may be entertained when the courts have before it the construction of statutes and will be addressed to the construction of the terms of the Act including its constitutional characterization, i.e. what it was directed to and whether it was founded on considerations that would support its validity under the legislative power to which it was attributed.35 The Supreme Court of Canada in 1976 permitted the introduction of evidence of the federal government's White Paper entitled "Attack on Inflation," tabled in the House of Commons on October 14, 1975, as a prelude to the introduction of the Anti-Inflation Bill.36

Production of Hansard or committee proceedings in court (a) Debates or Hansard The Debates or Hansard, or reports of committee proceedings, contain a full report of all speakers. As respects the Debates of the House, or Hansard, before concluding in Wason v. Walter" that the defendant simply gave a faithful report in a public newspaper of a debate in the House of Lords, Cockburn C.J. was required to officially read the debate in question in order to do justice between the parties. Similarly, Lord Denning M.R. in Cook v. Alexander38 noted that 11 speakers took part in the debate in question in the House of Lords and that it took over three hours and filled 94 columns of Hansard. It was of course the only way to conclude, as he did, that the newspaper report was a fair and honest representation of the debate. Neither in Wason v. Walter nor in Cook v. Alexander was the court "questioning" the debates but rather examining them to determine whether the common-law defence of qualified privilege was applicable. 33 34 35 36 37 38

Ibid., at 143. Ibid., at 144. See also Langtry v. Dumoulin (1880), 7 O.R. 499, aft' d 7 O.R. 644, which was affd 13 S.C.R. 258. In Reference Re Anti-Inflation Act, [1976] 68 D.L.R. (3d) 452 at 467 (S.C.C.). Ibid., at 466; although this document may have been available elsewhere, the court referred only to the fact that it had been tabled in the House. (1868), L.R. 4 Q.B. 73. [1973] 3 All E.R 1037 (CA.).

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(b) In aid of interpretation of statutes39 As a general rule, the Debates or the Hansard are inadmissible in aid of the interpretation of statutes, although they have been used for other relevant purposes — for example, to ascertain the constitutional pivot of a statute.40 There are other exceptions. In Regina u. Vasil,41 Lamer J., as he then was, for the majority said: Reference to Hansard is not usually advisable. However, as Canada has, at the time of codification, subject to few changes, adopted the English Draft Code of 1878, it is relevant to know whether Canada did so in relation to the various sections for the reasons advanced by the English Commissioners or for reasons of its own. At p. 55, and went on to note that: A reading of Sir John Thompson's comments in Hansard of April 12, 1892...p. 1378-85, very clearly confirms that all that relates to murder was taken directly from the English Draft Code of 1878. Sir John Thompson explained...and it is evident that Canada adopted not only the British Commissioner's proposed sections but also their reasons. (ibid.). In Lyons et al v. The Queen,42 Estey J. noted that much of the discussion in the courts below and in the course of argument in his court was based upon materials that originated in committees of Parliament or Hansard relating to the passage of the Protection of PrivacyAct (Criminal Code — wiretapping). He said: This Court, in Reference re Anti-Inflation Act (1976), 68 D.L.R. (3d) 462, [1976] 2 S.C.R. 373, 9 N.R. 541, had occasion to deal with the use to which this kind of material can be properly put. As Laskin C.J.C. said, at p. 467 D.L.R., p. 387 S.C.R.: "The material offered by the Attorney-General of Canada concerned the social and economic circumstances under which the Anti-Inflation Act was passed and the evils with which it purported to deal." To the same effect is the discussion by Beetz J., at p. 534-5 D.L.R., p. 470-1 S.C.R., concerning the use of policy statements and other material tabled in the House of Commons and in Committees of the House. This material is not 39

40 41 42

Fora full review of the subject, see, for example, Pierre-Andre Cote, The Interpretation of Legislation in Canada, 2nd ed., 1991, (Cowansville: Les Editions Yvon Blais, 1991), Chapter 4, Historical Interpretation; Ruth Sullivan, Driedger on the Construction of Statutes, 3rd ed. (Toronto: Butterworths, 1994), Chapter 18 —Extrinsic Aids. See supra, note 35. [1981] 121 D.L.R. (3d) 41 S.C.C. [1984] 14 D.L.R. (412) 482 S.C.C.

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considered by the courts in arriving at the proper construction to be placed upon language used by the Legislature, but only with reference to the aims of the legislating body and the evils with which it was then contending" (p. 522).

In R. v. Salituro43 Blair J.A. said: 'Although a court may not refer to parliamentary proceedings as an aid to interpretation, it may do so to ascertain the facts and circumstances related to the passage of a particular amendment to a statute" (p. 358-9.) This was to show that the whole of the Act, and all that implies, was not up for debate and Parliament's mind was only directed to the amendment because amendments to other aspects of the Act would not be acceptable as a matter of parliamentary procedure relating to relevance. The issue regarding the use of Hansard in aid of the interpretation of statutes took a recent turn in Britain. In Pepper v. Hart" the House of Lords held that: ...having regard to the purposive approach to construction of legislation the courts had adopted in order to give effect to the true intention of the legislature, the rule prohibiting courts from referring to parliamentary material as an aid to statutory construction should, subject to any question of parliamentary privilege, be relaxed so as to permit reference to parliamentary materials where (a) the legislation was ambiguous or obscure or the literal meaning led to an absurdity, (b) the material relied on consisted of statement by a minister or other promoter of the Bill which lead to the enactment of the legislation together if necessary with such other parliamentary material as was necessary to understand such statements and their effect and (c) the statements relied on were clear (p. 64-5).

More importantly from the point of view of parliamentary privilege, the House of Lords went on to hold that, "...the use of parliamentary material as a guide to the construction of ambiguous legislation would not infringe Article 9 of the Bill of Rights since it would not amount to a `questioning' of the freedom of speech or parliamentary debate provided counsel and the judge refrained from impugning or criticising the minister's statements or his reasoning, since the purpose of the courts in referring to parliamentary material would be to give effect to, rather than thwart through ignorance, the intentions of Parliament and not to question the processes by which such legislation was enacted or to criticise anything said by anyone in Parliament in the course of enacting it" (p. 67-9). The purpose ofArticle 9 of the Bill of Rights,1689 was to ensure that Members of Parliament were not subjected to any penalty (criminal, and later, civil) for what they said, and were able to discuss what they, as 43 44

(1990), 56 C.C.C. (3d) 350. [1993] 1 All E.R. 42.

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opposed to what the Monarch, chose to have discussed. Relaxation of the rule (against the use of Hansard, etc.) will not involve the courts in criticising what was said in Parliament. It is said that it is only a matter of time before the Canadian courts repudiate the strict exclusionary rule denying the use of legislative history as evidence of the intention of the legislature or of Parliament: nowadays the rule against the use of Hansard (Parliamentary matters) is more honoured in the breach than the observance.45 In one province, Nova Scotia, by statute, Hansard must be looked at in interpreting a statute.46 The Canadian position was demonstrated in R. v. Giftcraft47 where Saunders J. said the following at p. 196-7: Both counsel relied on a letter, written by the Deputy Governor of the Bank of Canada, which was read by the then Minister of Justice to the House of Commons when s. 415 was debated in 1954. At one time, there was a strict rule that such evidence was not admissible as an aid in construing a state. There has been a relaxation of that rule. In Reference re Residential Tenancies Act (1981), 123 D.L.R. (3d) 554 at p. 562, [1981] 1 S.C.R. 714, 37 N.R. 158, Mr. Justice Dickson, as he then was, said: The mischief at which the Act was directed, the background against which the legislation was enacted and institutional framework in which the Act is to operate are all logically relevant.... In Babineau et al. v. Babineau et al. (1981), 122 D.L.R. (3d) 508 at p. 512, 32 O.R. (2d) 545 at p. 549 (Ont. H.C.J.); affirmed 133 D.L.R. (3d) 767n, 37 O.R. (2d) 527n, Mr. Justice Grange said, when considering whether evidence of parliamentary proceedings should be admitted: In Canada it may be that the view of Laskin C.J.C. expressed at p. 389 S.C.R....of the Anti-Inflation Reference, supra, that "no general principle or admissibility or inadmissibility can or ought to be propounded...and that questions of resort to extrinsic evidence and what kind of extrinsic evidence may be admitted must depend on the constitutional issues on which it is sought to adduce such evidence," applies to all cases of statutory interpretation regardless of the subject-matter of the issue. Reference should also be made to the cases cited by Mt Justice Grange in Babineau and to R. v. Paul Madger Furs Ltd. (1982), 39 45 46 47

See Ruth Sullivan, Driedger on the Construction of Statutes, 3rd ed. (Toronto: Butterworths, 1994), p. 448. Interpretation Act, R.S. N.S. 1989, c. 235, s. 9. (1984), 13 C.C.C. (3d) 193.

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O.R. (2d) 329 (Ont. Co. Ct.), and Stoimenov v. Stoimenov et al. (1982), 40 O.R. (2d) 69, 31, R.F.L. (2d) 173, 26 R.P.R. 166. It may not yet be permissible to admit evidence of parliamentary history as an aid to interpret a statute unless, possibly, the evidence so admitted settles the matter. It would appear, however, that the letter from the deputy governor is at least admissible in this case to determine the mischief at which the section was directed.

(c) Other uses in court Legislative bodies did not consider its debates admissible as evidence in court because there is nothing really official about it save that the reporters who report what was said are in their employ. While imposing no specific barrier upon the courts to take Hansard in evidence, nevertheless the House of Commons would probably consider it a contempt of the House if a Member or an employee sought to give evidence in court about events in the House without the express permission of the House. Until October 31, 1980 the House of Commons (U.K.) took the view that any reference to Hansard in court proceedings would constitute a breach of its privileges and required a petition for leave to use Hansard to be presented in each case. On October 31, 1980 the House of Commons (U.K) resolved as follows: That this House, while re-affirming the status of proceedings in Parliament confirmed by Article 9 of the Bill of Rights, gives leave for reference to be made in future court proceedings to the Official Report of Debates and to the published Reports and evidence of committees in any case in which, under the practice of the House, it is required that a petition for leave should be presented and that the practice of presenting petitions for leave to refer to Parliamentary papers be discontinued (October 31, 1980, U.K. Debates). There is little to suggest that Canadian legislative bodies would not take the same position.

(i) Hansard evidence is hearsay evidence The general principle in Canada respecting the introduction of the debates or Hansard as hearsay evidence was stated by the Alberta court in

R. u. McGavin Bakeries Ltd. (No. 4):48

Most of the authority as to the inadmissibility of "Hansard" in a court of law is as to its use in aid of interpretation of statutes, but it applies with even greater force, in my opinion, in the circumstances here." To my mind, it would be most mischievous if any political flavour or as 49

(1951), 12 C.R. 139 at 142 (Alta. S.C.). The accused in the McGavin Bakeries case were charged with conspiracy to prevent or lessen competition and a debate had taken place in the House of Commons on a bill to amend the Combines Investigation Act in which the decontrol of flour was apparently touched upon. The court was of the view that the debate was not relevant in any event. See also McCarthy v. Kennedy, The Times, March 4, 1905.

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considerations should enter, or even appear to enter, into this or any other criminal court, and if statements appearing in a political record, not made on oath, and as to which there is no opportunity of cross-examination, should be accepted as evidence. It would wholly destroy the impartial administration of justice of which we are so justly proud. One citation suffices, Gosselin v. The King (1903), 33 S.C.R. 255...I reject as inadmissible the two copies of "Hansard." The courts recognize that the privilege of Parliament to restrict the publication of its proceedings extends to the giving of evidence in court proceedings of what a Member said in Parliament. The court will equally rule out the bare admission of the debates or Hansard as evidence.° They represent hearsay and if any evidence at all about what a Member or other person said in the course of the proceedings of the House is needed by the courts, they will require the personal testimony of the persons who are competent to testify to the facts requiring proof.51 On the other hand, the Solicitor General in the U.K. on two occasions52 has told the court that Parliament would probably not object if the parties agreed to use Hansard for a limited purpose: "It could be read simply as evidence of fact, what was said in the House on a particular day by a particular person."53 This same procedure was also adopted in Canada in Stopforth v. Goyer:54 In civil cases, the rules of evidence may be relaxed by consent of the parties, i.e. proof of matters that are germane may be made in such a manner as the parties agree and not necessarily in strict compliance with the technical rules as to admissibility.55

(ii) To prove that a Member sat and voted In order to prove that a Member sat and voted on a particular day, the court in the U.K in Tranton v. Astor, an action by an informer to recover from a Member penalties for having sat and voted while disqualified, said:56 It was proved in the present case that on five days...the defendant spoke in the House of Commons. At first, the plaintiff attempted to prove this by producing volumes of the Official Debates of the House of Commons, commonly called "Hansard" but I refused to receive these as evidence. The five occasions I have referred to were then 50 51 52

53 54 55

56

On the other hand, the speech from the throne is admissible to prove facts of a public nature (Halsbury, 3rd ed., vol. 15, para. 658). Tranton v. Astor, supra, note 11. Dingle v. Associated Newspapers Ltd.; supra, note 33; Church of Scientology of California v. Johnson-Smith, [1972] 1 All E.R. 378. Brown J., Church of Scientology of California v. Johnson-Smith, at 382. (1978), 20 O.R. (2d) 262, rev'd in part 8 C.C.L.T. 172 (CA). AG. Can. u. Reader's DigestAssn.,[1961] C.T.C. 530 at 545 per Cartwright J. (S.C.C.). Supra, note 11, at 385. See also discussion at notes 11, 12, 13.

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spoken to by calling the shorthand writers of the staff of Hansard who produced their original shorthand notes of the defendant's speeches and who stated that they knew and identified the defendant as having made from his place in the House of Commons the speeches that they reported. Inasmuch as by the custom of Parliament and the Standing Orders of the House of Commons a Member desiring to address the House must rise in his place and address his observations to the Speaker, I do not think that better evidence of a Member sitting in the House on a particular day could be given than proof of his having on that day addressed the House.

(iii) Use in civil litigation In Plunkett v. Corbett,57 Lord Ellenborough held that a former Speaker of the Irish House of Commons before the union, when called as a witness, may be asked whether the defendant Member had spoken in Parliament but need not reply to questions about what had taken place in the debate or what the Member had said. In Chubb v. Salomons,58 the court said a witness, who was a Member did not have to answer questions about whether the defendant had voted in a particular division, without first obtaining permission of the House of Commons. In the U.K. libel action of Braddock v. Tillotson's Newspapers Ltd. (1949),59 the Court of Appeal noted that the House of Commons had been petitioned by both sides in the case for permission to call Members and a newspaper reporter about what had taken place in the House during a proceeding in Parliament.60 Thus, the Court of Appeal turned down a request by the plaintiff to further cross-examine the witness newspaperman because the plaintiff solicitor became aware of the name of this witness when Parliament was petitioned earlier for permission to hear his evidence in court. Dingle v. Associated Newspapers Ltd.61 also involved a libel action; the Article complained of contained references to the report of a committee. At the commencement of the trial, there was indicated in the opening speech for the plaintiff (no party to the action was a Member) that an attack was to be made on the ground of some defect of procedure in committee and as a consequence, the Solicitor General et al appeared as 57

ss 59 60

61

(1804), 5 Esp. 136; 170 E.R. 763. Supra, note 14. [1949] 2 All E.R. 306 (CA). The passage in the newspaper complained of was headed "Revelry by Night" and stated, "In the middle of this unlovely burlesque, Mrs. Braddock, who represented the Exchange Division of Liverpool, danced ajig on the floor of the House, finishing in the seat vacated by Mr. Churchill, our greatest House of Commons man. The whole performance was nauseating, a sorry degrading of democratic government by discussion, the nadir, let us fervently hope, of this Parliament." Supra, note 31.

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amici curiae. He told the court that the plaintiff petitioned the House of Commons and leave was obtained for the production of the report of the committee, the Journals and Hansard, but not for committee minutes of proceedings or the evidence taken before the committee. The Solicitor General went on to advise the court that there were two species of evidence in question: the minutes of proceedings of the select committee, which were laid on the table but which were not published, and the evidence that the plaintiff had requested of the Speaker the minutes of proceedings but that the Speaker had refused on the ground that the proper course was for the plaintiff to petition the House of Commons for their production; and that since no petition had been made, any evidence in court of these minutes would constitute a breach of parliamentary privilege. The shorthand reporter could be called to produce the transcript of the evidence, but a resolution of the House of Commons of May 26, 181862 forbids the reporter to produce it without leave of the House and leave was not obtained. However, any Member of the public could buy a copy of the transcript of the evidence. If the evidence could be proved by some other way (for example, by an agreed document, as the parties did in this case), it was unlikely that the House would treat the mere production as a breach of privilege. It will be noted that the resolution of the House of Commons (U.K.) of October 31, 1980 (supra, p. 138) varied in part their position set out in the resolution of May 26, 1818. Either House of Parliament would be concerned, whether or not leave was obtained, if the court "adjudged"63 or questioned" the debates or any of the proceedings; for that matter, the courts would likely not permit it. The plaintiff in Church of Scientology of California v. Johnson-Smith65 by the pleadings intended to rely on remarks of the defendant Member in the House as evidence of malice, and this was rejected by the court. The plaintiff in Dingle v. Associated Newspapers Ltd. intended to question the validity or accuracy of the committee report, and the court rejected this as being outside the scope of its inquiry. The court in Church of Scientology of California v. Johnson-Smith said that by agreement Hansard could be read simply as evidence of fact, what was in fact said in the House on a particular day by 62 "That all witnesses examined before this House, or any committee thereof, are entitled to the protection of this House, in respect of anything that may be said by them in their evidence; that no Clerk or officer of this House, or shorthand reporter employed to take minutes of evidence before this House, or any committee thereof, do give evidence elsewhere in respect of any proceedings or examination had at the Bar, or before any committee of this House, without the special leave of the House": U.K. C.J. (1818), 389. 63 Blackstone, Commentaries on the Laws of England, 8th ed. (Oxford: Clarendon Press, 1778), vol. 1, p. 163. 64 Bill of Rights, 1689. 66 Supra, note 52.

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a particular person, while agreeing with the principle that these extracts of Hansard as read "must not be used in any way that might involve questioning, in a wide sense, what was said in the House of Commons as recorded in `Hansard'."66

(iv) Use in criminal prosecutions

The House of Commons of Canada in 1892 permitted the use of evidence given by a Member in committee proceedings to be used against him in subsequent criminal proceedings in The Queen v. Nicholas K. Connolly and Thomas McGreevy, Journals, April 12, 1892, p. 234-5. In dealing with this particular issue, Rose J.A. in R. v. Connolly and McGreevy said at p. 228: I do not see how any question can arise as to the abuse of the privileges of Parliament in endeavouring to make use of this evidence, if the proper holding is that by the resolution of the committee, adopted by the House, Parliament directed the institution of the present proceedings upon the evidence taken before the committee. He continued at p. 229: If the direction of Parliament was, that upon the evidence given these prosecutions should be instituted, and that for that purpose the books and papers should be retained for use in the prosecutions, then it follows that there is not protection in this case to the witnesses from the liability to which they have been exposed by the giving of such evidence, if, as I have suggested, the only protection to be afforded to the witness is the protection from the use of evidence without the consent of the House. If this is not the case, then the protection of the witness would seem to be an absolute one which cannot be taken away from him except by an express Act of Parliament. Whether a witness before a committee is protected by an unwritten law, co-existent with the inquisitorial power, absolute and binding except expressly taken away, or whether his protection is merely the right to claim protection, which Parliament may refuse by consenting to the evidence being used against him, is a matter upon which perhaps there may be some doubt.67

Section 13 of the Charter appears to have changed this position unless the inquisitorialas powers of the Houses of Parliament that form part of the internal proceedings are found to be constitutionally inherent (see infra, Chapter 14). Section 13 of the Charter reads as follows: A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence. 66 67 68

Ibid., at 382. (1892), 22 O.R. 220 (CA.). "It was the common case of both the Crown and defendants that the powers of the committee were inquisitorial; that witnesses had no power to refuse to answer." Ibid. at p. 228.

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In Australia, Hunt J. in R. v. Murphy69 favoured a narrow interpretation of Article 9 of the Bill of Rights, 1689 to support his view that there is no breach of parliamentary privilege to ask a witness in curial proceedings whether he made a particular statement in evidence, or a written statement given to a parliamentary committee "even where the purpose of the question is to invite the tribunal of fact in the curial proceedings to disbelieve the evidence given by such witness in the curial proceedings by reason of inconsistency..." This interpretation, however, was overturned when the Australian Parliament passed the Parliament Privileges Act, 1987 and reverted to the traditional view.

Overview

Until July 16, 1971 (when the House of Commons resolved otherwise), in the U.K. it would technically have been a breach of privilege to publish what was said in Parliament because of earlier resolutions of March 3, 1762. The Canadian House of Commons would probably not entertain as a question of privilege the use in court of extracts of Hansard by agreement for the purpose of what was said there by a particular Member on a particular day. The Supreme Court of Canada used extracts in the Reference Re Anti-Inflation Bill,70 and the Supreme Court of Ontario, following Church of Scientology of California v. Johnson-Smith, permitted extracts of Hansard in Stop forth v. Goyer.71 This is further evidence of the court's use of Hansard, reviewed earlier (see supra, under Whether or not Admissible, etc.). The British House of Commons Committee on Privileges recently72 dealt with the matter, noting that the privilege referred to in the March 3, 1762, resolutions was waived by the resolution of the House of Commons of July 16, 1971, as follows: Resolved, that notwithstanding the Resolution of the House of March 3, 1762 and other such Resolutions, this House will not entertain any 69 (1985), 64 A.L.R. 497 at 505. See also text at note 10, Chapter 3. It may be observed that narrowing Article 9 may be considered healthy because (a) it enlarges the citizen's right of full speech without restricting a Member's in Parliament or a witness' before a committee; (b) it allows a person properly to make full defence (here a criminal defence); (c) it therefore respects the general and useful distinction seen in the cases (e.g. Bradlaugh v. Gossett as opposed to Bradlaugh v. Erskine; see Chapter 13 & 14) between: (i) the court's looking fully into the existence and extent of parliamentary privilege as incidental to doing justice between the parties in litigation; and (ii) the court's refusing to grant extraordinary specific relief (say, by mandamus, injunction, etc.) that directly attacks parliamentary independence and freedom in their internal matters. 70 See supra, note 35. 71 Supra, note 53. 72 H.C. 102, December 7, 1978, adopted October 31, 1980, Votes and Proceedings, p. 1441.

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complaint of contempt of the House or breach of privilege in respect of the publication of the debate or proceedings of the House or of its Committees, except when any such debates or proceeding shall have been conducted with closed doors or in private, or when such publication shall have been expressly prohibited by the House. The committee had before it a reference respecting a complaint that the criminal court had recently quoted Hansard extracts without having obtained the permission of the House of Commons. In its report, the committee said it was satisfied on the basis of copies of correspondence from the trial judge to the Speaker along with the official shorthand writer's transcript of the relevant part of the proceedings, that neither the judge nor counsel for the Crown made use of the Official Report (Hansard) in a manner that could affect the privileges of the House. The committee pointed out that the practice of petitioning the House for permission to refer to the Official Report (Hansard) and the proceedings of Parliament in general developed out of the Resolution of May 26, 1818, which really dealt with permission for servants of Parliament to attend court and give evidence in respect of proceedings in Parliament. The committee recommended that the practice of presenting petitions for leave to make reference to the Official Report (Hansard) in court proceedings not be followed in the future and that such reference not be regarded as a breach of the privileges of the House. (See also supra, resolution of October 31, 1980 (U.K.), p. 138.) Accordingly, it seems that the British practice is now the same as the Canadian practice: parties to an action need not petition Parliament for permission to refer in court to extracts of the Official Report (Hansard) or committee or House proceedings unless they have been expressly prohibited by the House.

• Use of parliamentary proceedings as statutory exceptions to the Bill of Rights, 1689 Ever conscious of the privilege of Parliament, the courts are very careful not to be seen to attempt to infringe upon the lex parliamenti. Thus, the only instances of the courts dealing with the substance of speaking in Parliament are usually in those statutory exceptions to the Bill of Rights,1689, i.e. actions for penalties for voting and sitting while disqualified,73 or more specifically, prosecutions for perjury and contradictory statements during a sitting of a committee of either House of Parliament.74 In such a case, the court would be required to take into account what was said, or examine what had transpired in and what was said during a 73 74

Parliament of Canada Act, R.S.C. (1985), c. P-1, s. 36; see Tranton v. Astor, supra, note 13.; Forbes v. Samuel, supra, note 14; and Chubb v. Salomon, supra, note 16. Criminal Code, R.S.C. (1985), c. C-46, s. 118, 131, 136. See also R. u. Connolly (1891), 22 O.R. 220 (CA) where the Commons permitted the use in court of admissions made in committee.

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proceeding in Parliament. In Forbes v. Samuel,75 the court permitted the evidence of the reporter who had taken down the testimony of the defendant during a sitting of a committee: It appeared that Sir Stuart Samuel's admission before the Committee of the House of Commons that he was from 1910 to November 1912, a Member of the House of Commons; that during that time he was also a partner in the firm of S. Montagne & Co.; that at some period during that time his firm had instructions to buy silver for the Secretary of State for India and Council, and did buy silver, and that while his firm was so acting, he sat and voted in the House. Similarly, in Tranton v. Astor evidence was given by "shorthand writers of the staff of the House of Commons who produced their original shorthand notes of the defendant's speeches and who stated that they knew and identified the defendant as having made from his place in the House of Commons the speeches that they reported."76 In both those instances, the court was not "questioning" what was said but was proceeding pursuant to a statute that was an exception to the Bill of Rights, 1689, Article 9. Similar considerations would apply to proceedings under the Criminal Code for perjury or giving contradictory evidence during a sitting of a parliamentary committee.

Summary of the position with respect to the use of the Debates and committee evidence in court proceedings 1. The Canadian Parliament has never dealt with the issue but it is

probable that any question of privilege raised in the House of Commons relating to the use of extracts of the Official Report (Hansard) in court proceedings would (a) not be considered aprima facie case of privilege by the Speaker on the basis of the report of the U.K. Committee;77 or (b) if the Speaker felt compelled to find a technical case of privilege prima facie, and the House adopted the motion, the committee would in turn probably submit a report not unlike that of the U.K., December 7, 1978, recommending that a proper use of extracts of the Official Report (Hansard) be permitted without leave of the House of Commons. In this context, a newspaper may feel free in court to rely on what was said in Parliament in defence to a defamation action by a

75 76 77

Supra, note 19, at 729. Supra, note 11, at 385. All committee evidence is now recorded electronically, with an employee identifying the person speaking. H.C. 102, December 7, 1978, (U.K.). adopted October 31, 1980, (supra, this chapter, p. 138) and resolution of July 16, 1941 (U.K.).

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Member that its report of the debate in Parliament or of what the Member said in Parliament was not a fair one. This was the case in Wason u. Walter.78 2.

The courts have increasingly used parliamentary proceedings without any objection from a legislative body. The House of Commons may nevertheless treat any use of Hansard, including the electronic Hansard now produced by radio and television that it deems improper as a contempt of Parliament by virtue of its inherent authority to restrict publication of its proceedings.

3.

Leave of the House of Commons is required for a Member to give evidence elsewhere of what transpired, or what was said or done, as part of a proceeding in the House;79 otherwise there could be a contempt of Parliament. In the case of anon-Member, such leave was formerly sought by petition. It appears that no case of production without leave had been treated as contempt prior to the case of December 7, 1978.80

4.

The House of Commons of Canada has permitted the use of evidence taken before a committee in a subsequent criminal proceeding (other than perjury) including the use of the evidence of a Member of the House.81

Summary and conclusion 1.

There has never been a practice in Canada requiring the permission of either House of Parliament by petition to refer to Hansard in court proceedings and it would probably not be considered a breach of privilege of Parliament to do so, so long as the extract is not "questioned" in a wide sense, or adjudged, in court proceedings.

2.

Without agreement by counsel, Hansard is inadmissible in court proceedings as evidence of the truth of what was said because it is hearsay.82

3.

The parties to an action may agree to admit, and the court will permit the introduction as evidence of fact, extracts of Hansard or committee evidence for the limited purpose of showing what a particular person said on a particular day, but counsel are prohibited

78

(1868), L.R. 4 Q.B. 73. See also Sopinka and Lederman, The Law of Evidence in Civil Cases (Toronto: Butterworths & Co. (Can.) Ltd., 1974). Debates, March 22, 1965, p. 12616 (UK.). H.C. 102, para. 31 (U.K.). See supra, at note 70. Journals, April 12, 1892, p. 234-5. See also R. v. Connolly, supra, note 67. R. v. McGavin Bakeries (No. 4) (1951), 12 C.R. 139 (Alta. S.C.); Stopforth v. Goyer, supra, note 53.

79

SO 81

82

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from commenting upon what was said and recorded in Hansard and from asking the jury to draw any inferences from it.83 4.

In the U.K., on proof that the permission of the House was obtained, evidence by the relevant Hansard reporter of what was said by a Member on a particular day may be admitted as proof of what was said on a particular day by that Member.84

5.

In the U.K, on proof that the permission of the House was obtained, a Member of the public, e.g. a Member of the press gallery, may give evidence that a particular Member sat in the House on a particular day.85

6.

In the U.K., it has been held that a Member of the House may be asked whether a certain person was Speaker of the House of Commons on a particular day but he may decline to answer whether a certain Member voted, without first having obtained permission of the House.86

7.

The only exceptions to the general privilege of freedom of speech contained in the Bill of Rights, 1689, Article 9, are those instances where the courts are examining what was said87 or done88 for purposes of establishing whether a Member is in conflict with a statute, or when a person is charged with having committed perjury or giving contradictory evidence while under oath during a proceeding of Parliament.89 It is also probably admissible to show that a Member was sitting in the House on a particular day." for any purposes necessary to establish where a Member of the House of Commons was on a particular day.

8.

Proceedings of the Senate and of the House of Commons are "judicial proceedings" for purposes of the Criminal Code, and

83

Supra, text at notes 50-53. Tranton u. Astor; supra, note 16 at 385; Forbes v. Samuel, supra, note 12 at 725 and 729. Tranton v. Astor, supra, note 16. Chubb v. Salomons, supra, note 14, cited in Roman Corp. v. Hudson's Bay Oil & Gas Co. (1971), 18 D.L.R. (3d) 134 at 139, aff d 23 D.L.R. (3d) 292, which was aff'd 36 D. L.R. (3d) 413 (S.C.C.); the Journals of the House would reflect the resolution electing the Speaker and the Journals may be produced in court (see supra, R. v. McGavin Bakeries Ltd. (No. 4), note 28). See Forbes v. Samuel; and Tranton v. Aston which involved admissions that they were members of the firm contracting with the government who were Members of the House of Commons, contrary to statute. Forbes v. Samuel; and Tranton v. Astor, voting while a member of the firm having a contract with the government, contrary to statute. Criminal Code, R.S.C. (1985), c. C-46, s. 118, 131, 136.

84 85 86

87

se 89 90

Tranton v. Astor: evidence of a member of the press gallery.

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therefore witnesses giving sworn evidence therein may be charged with perjury.31 9.

What is said in either House of Parliament can neither form the basis of nor support a cause of action, either civil or criminal.92

10. What is said or done in either House of Parliament in the course of proceedings could not be examined outside Parliament for the purpose of supporting a cause of action even though the cause of action itself arose out of something done outside Parliament.63 One exception would appear to be necessary where a newspaper was sued by a Member for the manner in which it reported a debate in Parliament (see Wason u. Walter, supra, note 1). Nevertheless, in Roman Corp. u. Hudson's Bay Oil & Gas Co., the plaintiff relied on statements in the House in an action and claimed the statements procured a breach of contract (see supra, Chapter 5). 11. While it is not possible in law to conspire to commit a crime by the use of words during a proceeding in Parliament because the use of words during a proceeding in Parliament cannot be unlawful and may not be questioned outside Parliament,64 it is probably possible to conspire to commit the offence of perjury during a proceeding in Parliament because the latter is an unlawful act under the Criminal Code and the Parliament of Canada Act.95 12. While witnesses before the House or a committee thereof will be protected by the House96 and by the courts in regard to libe1,67 and will also be protected from criminal prosecution except for perjury," that protection may be," and has been withdrawn in the case of criminal prosecutions in 1892 in Canada, other than forperjury arising from testimony before parliamentary committees'°° and particularly respecting the prosecution of Connolly and Thomas 91 92 93 94

95

06 97 98 99

100

Supra, note 87; see supra, note 35, Chapter 7, R. u. Charron, unreported judgment, May 2, 1962 (Ont. G.S.P). Bill of Rights,1689, Art. 9; ex parte Wason (1869), L.R. 4 Q.B., 573. Ibid. Ex parte Wason, supra, note 90. The plaintiff was seeking to use statements made outside the House and what was said during a proceeding in the House to show that they amounted to a criminal conspiracy R.S.C. (1985), c. 46, s. 118, 131, 136; and R.S.C. (1985), c. P-1, s. 12, respectively. Bourinot, 1st ed., p. 104; 4th ed., p. 74. See Coffin u. Donnelly (1881), 6 Q.B.D. 307; Dawkins u. Lord Rokeby (1873), L.R. 8 Q.B. 255; aff'd (1875), L.R. 7 H.L. 744. Supra, note 89. Bourinot, 4th ed., p. 74. Quaere: this protection is included in a statute which is part of the general and public law of Canada, the Bill ofRights, 1689, how may the Commons alone withdraw this protection? See also resolution of the U.K. Commons May 26, 1818, supra, note 61. See Journals (April 12, 1892), p. 234-5.

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McGreevy. is 1. As put by Rose J.A., of the Court of Appeal of Ontario in R. v. Connolly, "I do not see how any question can arise as to the abuse of the privileges of Parliament in endeavouring to make use of this evidence, if the proper holding is that by the resolution of the committee, adopted by the House, Parliament directed the institution of the present proceedings upon the evidence taken before the committee." (at p. 228) 13. While the House of Commons has permitted the use of evidence given before a committee to be used in court by withdrawing its protection from the witness who appeared before the committee and gave the evidence, and has permitted employees of the House to appear as witnesses, the court may or may not use such evidence (see R. v. Connolly, where the Court of Appeal of Ontario refused to compel a police magistrate at Ottawa to receive the evidence; however, the police magistrate, having the opinion of Rose J.A. before him, admitted the evidence in question on the resumption of the proceedings). 14. The debates of either House of Parliament and evidence before their committees have been read by the court under certain circumstances in aid of interpretation of Statutes.1°2 15. The best evidence of membership of the House of Commons is the return of the writ of election with the returning officer's endorsement thereon;1°3 this was established by Coke when he said, "Every man is obliged at his peril to take notice who are Members of either House, returned of record."194 The Journals entry showing the report of the Chief Electoral Officer with the Members returned would be admissible. 16. "...the hon. member, in order to have complete freedom and also in order to avoid possible complaints of breach of privileges after he has given evidence (before the Dorion Commission), has grounds for requesting leave of the house to give evidence involving the proceedings of this house..." (Speaker, Debates, March 22, 1965, p. 12616). 101

102

103 104

(1892), 22 O.R. 220. Section 13 of the Charter; which provides against self-incrimination, appears to change this position as "proceeding" includes "proceedings in Parliament" at least for purposes of the Criminal Code and perjury prosecutions. Pepper v. Hart, [1993] 1 All E.R. 42 (H.L.) and Canadian cases supra. See also Ruth Sullivan, Driedger on the Construction of Statutes (Toronto: Butterworths, 1994), Chapter 18 and supra, discussion at note 45. See also Reference Re Amendment of the Constitution of Canada (Nos. I, 2 and 3) (1981), 125 D.L.R. (3d) 1 at 31-2. Forbes v. Samuel, supra, note 12; see also Chapter 2. 4th Coke Inst. 24 (1644).

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CHAPTER 9

Privilege of Freedom from Arrest and Related Privileges

While the privilege of freedom of speech during a proceeding of Parliament is obviously the most important, it is not the only privilege necessary for the Member to perform his legislative function; neither was it the first privilege accorded. This chapter will deal with the protection that the Member receives from molestation by means of the legal process of arrest in civil process, and the related privileges of exemption from attending as a witness or from jury service. Molestation by illegal means, such as improper interference with the Member's parliamentary work, is dealt with in Chapter 12 as a contempt of Parliament.

Freedom from arrest The first privilege accorded to parliamentarians in England was an assurance that the Barons and other Lords were not impeded on their way to the council with the monarch because of civil process. The concern was to secure the attendance of Members, and it remains to this day the principal reason for the privilege of freedom from arrest, from attending as a witness in a court or elsewhere than Parliament, and from serving on a jury. This is because the most important body in the country, the Parliament of Canada, has first call on the services of its Members and, except in the case of criminal matters' or breaches of provincial statutes (quasi-criminal), which involve the summary jurisdiction of the Criminal Code,2 Parliament will not tolerate impediments to Members who are on their way to attend the sittings.3 Accordingly, Standing Order 15 of the House of Commons provides that "Every Member, being cognizant of the provisions of the Parliament of Canada Act, is bound to attend the sittings of the House, unless otherwise occupied with parliamentary activities and functions or on public or official business."

2 3

And criminal offences under such federal statutes as the Narcotic Control Act, R.S.C. 1985, c. N-1. Lapointe case, Journals (1964-65), p. 1036, 1141-2. It will be seen, infra under Duration of the Privilege, that the protection extends beyond sitting days.

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There seems to be more than one theory relating to the origin of freedom from arrest. One theory relating to a parliamentary purpose is pointed out by Robert Luce in his work, Legislative Assemblies:4 Freedom from arrest was for hundreds of years of parliamentary privilege of even more importance to law makers than freedom of speech. It came into view much earlier than any of the other privileges, dating indeed from the first gathering of Englishmen for a share in government. The persons of those who were on their way to the King's Court and Council had a sort of sanctity such as is recognized in an ambassador....The laws ascribed to Edward the Confessor recognize a particular immunity for persons going to and from the synods. With the instituting of Parliaments, the importance of the doctrine grew. Manifestly the King could not afford to let anybody interfere with the agents of the shires and boroughs whom he summoned to treat with him about supplying money for his needs. So he made supreme the necessity of attending the business of his highest court and took the members under his protection. Under Edward I and II it was established that it was unbecoming for a Member to be distrained while at the session, and a statute of 1432 required the punishment of anybody who molested a Member in coming, double damages being imposed as in Ethelbert's time.5

It appears that the immunity is based also on the doctrine of the King's peace. White, in his work, English Constitution, says: In connection with most early assemblies that were in any way identified with the King, is to be found some idea of a royally sanctioned safe-conduct; the King's peace was to abide in his assembly and was to extend to the Members in coming to it and returning from it. Naturally these royal sanctions applied to Parliament.6

Finally, Hatsell connects the immunity from arrest granted to persons resorting to King's courts when he expresses the principal reason for the privilege: As it is an essential part of the constitution of every court of judicature, and absolutely necessary for the due execution of its powers, that persons resorting to such courts, whether as judges or as parties, should be entitled to certain privileges to secure them from molestation during their attendance; it is more peculiarly essential to the Court of Parliament, the just and highest court in this Kingdom, that the Members, would compose it, should not be prevented by trifling interruptions from their attendance on this important duty 4 5 6

See Luce, Legislative Assemblies: Their Framework, Make-up, Character, Characteristics, Habits and Manners (1924; rpt. New York: Da Capo Press, 1974). Referred to by Pachauri, p. 174. Ibid. The early councils were also a court: the High Court of Parliament; see Chapter 13.

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but should, for a certain time, be excused from obeying any other call, not so immediately necessary for the great services of the nation; it has been therefore, upon these principles, always claimed and allowed, that the Members of both Houses should be, during their attendance in Parliament, exempted from general duties, and not considered as liable to some legal process, to which other citizens, not intrusted with this most valuable franchise, are by law obliged to pay obedience.? Originally included Members' chattels and servants, and protected the Member from being impleaded This privilege originally extended to the Members' chattels, which included their servants, and protected them from being impleaded. These were removed by the Parliamentary Privilege Act, 1770. A Member of Parliament of Canada may be sued; thus, an attempt to postpone a civil action involving a Member of the Senate of Canada failed.8 Furthermore, an order for examination for discovery may be obtained against a Member of the House of Commons who is a defendant in a civil action, with all of the consequences attendant upon his failure to attend for the examination except for the attachment of his person (for example, by striking out his statement of defence) (Cox v. Prior (1899) 18 Ont. P.R. 492). But it never protected Members from the criminal law, and from the earliest times, treason, felony, and surety of the peace were specifically excepted.9 Members not protected from civil process except civil arrest As May puts it, the present position in England is that "Members of Parliament may now be coerced by every [civil] legal process, except the attachment of their bodies."10 Accordingly a Member may not be committed to jail for refusing to attend to be examined as a judgment debtor, or for refusing to answer questions put to him upon his examination as such judgment debtor. (The contrary, however, was held in Henderson u. Dickson (1860), 19 U.C.Q.B. 592.) Under the right circumstances, arrests in criminal matters may even be made on the floor of the House provided the House is not sitting. Lord Cochrane's case (1815) shows that after being convicted of a conspiracy, he was committed to the King's Bench prison, escaped, and was subsequently arrested while he was sitting in the Chamber of the House of Commons at a time of day when the House of Commons was not sitting. The Committee on Privileges later reported that while it was of a novel nature, it did not 7 8 9

10

Hatsell, vol. 1, p. 1-2. Todd v. Labrosse (1908), 11 O.W.R. 525; Pelletier v. Howard (1940), 43 Que. P.R. 258). See also Senate Debates, May 11, 1995, p. 1643-4. 4 Rot. Park. 357; May, 21st ed., p. 95. 19th ed., p. 93. See also Stourton v. Stourton, [1963] 1 All E.R. 606.

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appear that under the particular circumstance the privileges of Parliament were violated.11 From whatever theory it evolved, the basis for the privilege of freedom from arrest or molestation was not statutory but rather according to the custom of the realm, and was reaffirmed by statute, the Parliamentary Privilege Act, 1770.

n Included in Lower and Upper Canada for their Members, 1791 When Lower Canada and Upper Canada each had a legislative assembly following the Constitutional Act of 1791, freedom of arrest, like freedom of speech, was one of the privileges afforded to Members of both Houses by necessity, i.e. it was absolutely necessary for the due execution of the powers of the assembly.12

n Continued after 1840 The necessity for such freedom from arrest under civil process was recognized in 1848 by the courts of Lower Canada,13 and also in 1852 by the courts in Upper Canada, on the basis that Members there have the same privilege from arrest as Members of Parliament in England.14 The Lower Canada court (Cuvillier u. Munro),15 however, refused to apply the rule of necessity in the case because the Member "was neither going or returning from Parliament" and 20 days was the effective period, rather than 40 days in Upper Canada. The facts of the case show that the Member was between the two periods, i.e. he was arrested 21 days after the prorogation of one session and 21 days before the commencement of the next session. It is submitted that it is of no consequence what the Member was engaged in at the time of his arrest. In Moriarty v. Kavanagh, it was held that a Member of the Newfoundland House of Assembly has the same privilege from arrest, during and 40 days before and after a session, as a Member of the U.K. Commons.16

n Became part of privileges of Members of both Houses in 1867 The lex parliamenti of England, by virtue of s. 18 of the Constitution Act, 1867, and s. 4 of the Parliament of Canada Act, including as it does the 11 Debates, March 23, 1815, col. 336, 337 (U.K). Kennedy, p. 297. Cuvillier v. Munro (1848), 4 L.C.R. 146 at 154. R. v. Gamble and Boulton (1852), 9 U.C.R. 546. 15 Supra, note 13. 16 (1861), 4 Nfld. L.R. 591. See also Rennie v. Rankin (1850), 1 All 620 in respect of New Brunswick.

12 13 14

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freedom from arrest in civil process, became the law of Canada in respect of the Members of the Senate and the House of Commons.

Duration of the privilege • Commencement — 40 days before session All privilege commences for the Member from the moment of his official existence, which is at the moment of the execution of the return of the writ by the deputy returning officer.17 In the United Kingdom, it will be seen that because the privilege is always associated with the service of the House, it is limited to a period governed by the duration of the session, together with a convenient and reasonable time before and after the meeting of Parliament.18

• Continues for 40 days after end of session In Canada, the case of R. v. Gamble and Boulton19 is authority for the proposition that the duration of the privilege is the same as it is in the U.K.: 40 days before and after a session, and 40 days after a clissolution.20 While this applies to Members of the House of Commons and the Senate, reference must be made to provincial legislation in respect of the Members of provincial assemblies. For instance, it is now provided by statute that the duration of the privilege of freedom from arrest for Members of the Legislative Assembly of Ontario is 20 days preceding or following a session.21

Extent of the privilege of freedom from arrest • Extends only to civil matters The privilege extends only to civil matters; thus, any incident having a criminal character or a criminal nature in which a Member has been charged is not a matter where the immunity of freedom from arrest will protect the Member. The history of this privilege shows also that there was a debatable intermediate point between civil process on the one hand, and treason, 17 18

19 20

21

Bourinot, 4th ed., p. 42; Hatsell, vol. 1, p.166. May, 19th ed., p. 94; 21st ed., p. 101-2. The 1966-67 Committee of Privilege pointed out that its usefulness has waned since imprisonment for debt was abolished in 1890, and thus recommended that the privilege of freedom from arrest be abandoned (H.C. 34 (1966-67), para. 98, as yet unadopted). Supra, note 14; see also Rees v. A.G. (1869), 2 Ch. 386. See also May, 21st ed., p. 101-2, following Blackstone, vol. 1, p. 165; see also Harrison's case, Re Anglo-French Co-op. Soc. (1880), 14 Ch. D. 533. See Debates, May 19, 1989, p. 1951-3. Legislative Assembly Act, R.S.0.1990, c. L-10, s. 38.

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felony, and refusing to give surety of the peace22 on the other. The House of Commons in the U.K. in the nineteenth century was particularly occupied in resolving whether each of the instances involving "middle ground" affected the parliamentary privilege.23 As Sir Gilbert Campion said before a Committee of Privileges: A review of the development of the privilege reveals a tendency to confine it more narrowly to cases of a civil character and to exclude not only every kind of criminal case, but also cases which, while not strictly, partake more of a criminal than of a civil character.24

n Does not include criminal offences In Canada, the courts have not had much occasion to deal with the extent of this parliamentary privilege beyond the civil process, but the cases of Cuuillier v. Munro and R. v. Gamble and Boulton25 made it appear likely that the courts would follow the English practice. The cases excepted from the privilege appear to be treason, felony, refusing to give surety of the peace, all indictable offences, forcible entries and detainers, printing and publishing seditious libels, process to enforce the habeas corpus, and such contempts of court as the last two cited cases show.26 The Member is amenable to the criminal law save while speaking or doing something as part of a proceeding in Parliament.

n Does not include quasi-criminal offences In quasi-criminal matters such as statutory offences, both federal and provincial, which provide for punishment and all summary conviction matters, the Member is like every other citizen.27 A Member of the Canadian House of Commons was not protected by the privilege when he was arrested in front of the Parliament Buildings for having earlier failed to pay a parking ticket and a speeding ticket for which 22

Keeping the peace, i.e. a person who is bound with one or more securities in an obligation to the Crown whereby the party acknowledges himself to be indebted to the Crown, in a given sum, with condition to be void if he shall keep the peace. 23 See May, 19th ed., p. 93. See also May, 21st ed., p. 97-9. 24 Clerk of the House of Commons (UK) before Committee of Privileges, H.C. Paper No. 164 (1939-40); contained also in May, 19th ed., p. 103. 25 See supra, note 14. See also Mahon v. Ermatinger (1845), 1 U.C.Q.B. 334 and Meyers v. Harrison (1853), 4 Gr. 148. 26 See supra, note 14, at p. 552 referring to Wellesley v. Duke of Beaufort (1831), 2 Russ.& M. 639; see also Leckmere Charlton, in the matter of the Re Ludlow Charities (1845), 2 My. & Cr. 316. 27 See Wellesley v. Duke of Beaufort, ibid., where it constituted criminal contempt for an M.P. to take his daughter, a ward in Chancery, out of the jurisdiction of the Court of Chancery

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he was convicted under summary conviction procedures of the Criminal Code.28

Contempt of court nMember is protected from civil contempt Civil contempt by a Member attracts the parliamentary privilege of freedom from arrest: For instance, when a man does not obey an order of the court made in some civil proceeding, to do or to abstain from doing something as where an injunction is granted in an action against a defendant, and he does not perform what he is ordered to perform, and then a motion is made to commit him for contempt, that is really only a procedure to get something done in the action and has nothing of a criminal nature in it.29

The Lord Chancellor, in giving judgment in the Wellesley c,ase,3° gave further examples of civil contempt: ...refusing to put in an answer, for refusing to pay money ordered to be paid, for resisting a decree to perform any specific act, for cutting down timber, or doing any other act in the face of an injunction, or in the face of any other order of the court. The breach of any order substantially of a civil description and in a civil matter — that is, a matter touching the rights of real or personal property... Against all civil process privilege protects; but against contempt for any obeying civil process — if that contempt is in its nature or by its incidents criminal — privilege protects not....31

nMember is not protected from criminal contempt "What gives the court the power to act is the fact that the appellant has done something to prevent the course of justice by preventing the divorce suit from being properly tried. That is clearly a contempt of court of a criminal nature. Authorities have been cited to show that everything done to prejudice the judge or jury in the trial of an action is a criminal act because it is an attempt to prevent the course of justice."32 An insult offered to a judge, in the exercise of the duties of his office, does not attract the parliamentary privilege of freedom from arrest when the act amounts to criminal contempt. 28 Gregoire case, Journals (1965), p. 1036, 1141-2. Cotton L.J. in O'Shea v. O'Shea and Parnell (1890), 15 P.D. 59 at 62-3; see also Westmeath v. Westmeath, [1896] Q.B.D. 344, and supra, p. 129, reference to Henderson v. Dickson, where the contempt was of a civil character and thus the Member should 30 31 32

have been found to be protected by parliamentary privilege. Supra, note 27. Cited in R. v. Gamble and Boulton, supra, note 14. Cotton L.J. in O'Shea v. O'Shea and Parnell, supra, note 29, at 63.

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This was confirmed in Canada in Re Ouellet where the accused, a minister of the federal cabinet and a Member of the House of Commons, made certain remarks about ajudge that were widely reported in the press after the judge acquitted several corporations of charges brought by the minister's department.33 Hugessen A.C.J. put it this way: As regards any suggested immunity from arrest or process enjoyed by the respondent (a Member of the House of Commons and Minister of the Crown), the authorities that I have consulted appear unanimous that such immunity cannot apply to a committal for contempt of court [citations omitted]. 34 While neither House of Parliament has waived or would likely waive its right to intervene if and when Members are convicted and committed for contempt, and thus could in theory consider each case on its merits, it is unlikely that either House of Parliament would take any matter into consideration relating to the civil process unless the circumstances were extraordinary. It is also unlikely that Parliament would actually interfere in a criminal arrest of a Member, including criminal contempt of court. While cases may arise, the position of the House of Commons in the Gregoire matter35 suggests that that House will at least investigate every such matter brought to its attention in order to be assured that the privileges of Parliament are not affected.

n House to be informed The practice has been for the House to be informed of arrests of Members on criminal charges,36 and of a conviction and sentence to imprisonment for criminal offences 37

Privilege of not being required to attend as a witness Since Parliament has the paramount right to the attendance and service of its Members, any call for the Member to attend elsewhere while the House is in session is not in law a call that need be answered. Thus the Member is not compelled to attend as a witness before any court or tribunal in Canada while the House is in session, whether in a criminal, civil, or military matter.38 Furthermore, the Member of one House is not compelled to attend the proceedings of the other House as a witness without the consent or 33

Re Ouellet (No.1) (1976), 67 D.L.R. (3d) 73, aff'd 72 D.L.R. (3d) 95 (Que. CA.). 34 67 D.L.R. (3d) 73 at 85. 33 See supra, note 28; arrest relating to conviction for parking and speeding offences. 36 May, 21st ed., p. 95; Bourinot, 4th ed., p. 268-9. 37 May, 21st ed., p. 96; Re Ouellet (No.1), supra, note 33, 67 D.L.R. at 94; Bourinot, 4th ed., p. 269. 38 May, 21st ed., p. 101; HaLsbury, 4th ed., vol. 34, p. 596; Bourinot, 4th ed., p. 45-6.

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order of the House of which he is a Member. In practice, a Member of the House of Commons is discouraged from voluntarily attending the proceedings of the Senate as a witness39 unless that Member is a minister of the Crown, who as a matter of custom attends before the committee of the Senate to which a bill has been referred to explain the bill and answer questions of policy While, in theory, service of a subpoena upon a Member of either House of Parliament when the House is in session, particularly if effected within the precincts, could be considered by that House as a breach of privilege, "it is doubtful, however, whether under present [U.K.] usage the actual service would be so treated unless effected within the precincts of the House while the House was sitting."40 In Canada, a Member of the House of Commons who has received a subpoena to appear in civil or criminal court while the House is in session may wish to attend where he feels his absence might affect the course of justice, particularly after having been apprised in advance by the party in question. However, Members have the legal right to claim this privilege, and while the service of a subpoena would not normally be raised in the House, the counsel who authorized the service would probably be advised by the Member or by general legal counsel of the House of Commons of the lawful claim to this privilege. Nevertheless, in the event a court proceeded to arrest a Member of Parliament for contempt of court (civil) under the false assumption that the Member did not have a lawful claim of privilege in such circumstances, the matter would no doubt be successfully disposed of in the Senate or the House of Commons, as the case maybe, on a question of privilege.

Privilege of exemption from jury service Similarly, since either House of Parliament has first call upon the attendance and service of its Members, Members need not heed jury notices. This had been the practice in the U.K. long before confederation in 1867.41 (Provincial legislation also normally specifically exempts Members of the legislative assembly and of the House of Commons and Senate in respect of civil cases without reference to whether Parliament is in session.) The House of Commons must rely on this overall authority (part of the corporate right of the House) because it was only in 1870 that the U.K. Juries Act, 1870 confirmed by legislation that Members of both Houses and their officers are included among the persons exempted from service on juries without reference to the sitting of Parliament. 39 40

41

Debates (1974-75-76), p. 3619-20. Halsbury, 4th ed., vol. 34, p. 596. See also A Serious Question of Immunity by David Kilgour, M.p. and J.E.F. Bowdich, The Parliamentarian, October 1989, p. 233, re problems that may arise if an M.p. attorns to the jurisdiction of the court: See also Debates, May 19, 1989, p. 1951-3. May, 21st ed., p. 101.

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Privilege extended to persons not members Officers of the House of Commons and Senate By virtue of s. 18 of the Constitution Act, 1867, and s. 4 of the Parliament of Canada Act, the privileges, rights, and immunities of the Senate and of the House of Commons are more or less the same as those of the U.K. Commons. One of the rights of that House is to provide for the protection of its officers and for them to assist at its deliberations. For purposes of such privilege of freedom from arrest and attendance before a court as a witness and exemption from jury duty, an "officer" would include a person in the service of the House whose duty or one of whose duties requires him or her to be in immediate attendance upon the service of the House or its committees. Officers of either House of Parliament are exempt from jury duty under the same circumstances as the Members.42 A fortiori, an officer is protected when subpoenaed to attend to give evidence about a parliamentary proceeding.43

Witnesses and others Witnesses and other persons in personal attendance upon the business of Parliament are protected from arrest in coming, staying, and returning from attending. Any molestations such as arrest, a summons for jury duty, or a summons to attend a court of law while they are under the protective mantle of Parliament could constitute a breach of privilege or contempt of Parliament." This would include witnesses who are to appear before a committee of either House, petitioners for private bills or other matters, counsel, and parliamentary agents. This protection is in addition to the general protection of freedom of speech a witness receives while appearing before a parliamentary committee or that a petitioner receives in respect of the material that is included in the petition presented to the House by a Member thereof.

Summary: Freedom from arrest and related matters 1.

A Member of the Senate or the House of Commons does not have an immunity from arrest in criminal matters and may be imprisoned for a criminal or quasi-criminal offence, including criminal contempt of court.45

2.

A Member of the Senate or House of Commons is protected by parliamentary privilege from arrest for any civil process such as

42 43 44 45

May, 21st ed., p. 101; Halsbury, 4th ed., vol. 34, p. 596. Halsbury, 4th ed., vol. 34, p. 596. May, 21st ed., p. 102; Halsbury, 4th ed., vol. 34, p. 596. May, 21st ed., p. 95; Bourinot, 4th ed., p. 43; Re Ouellet (No. 1), supra, note 33.

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failing to obey an order or judgment of the court in a civil matter, including civil contempt of court:16 3.

The duration of the privilege of freedom from arrest in respect of a Member of either House of Parliament is 40 days before and after a session, and 40 days after a dissolution of Parliament.47

4.

A Member of the Senate or House of Commons may at any time be sued in his personal capacity and thus may not postpone a civil action.45

5.

A witness or other person required to be in attendance upon the Senate or House of Commons or one of its committees is protected from civil arrest and notice for jury duty while coming, staying, and returning from attending.49

6.

Officers of either House whose duties require them to be in immediate attendance upon the service of the House are protected by the privilege of freedom from arrest and are free from being molested for jury duty or for attendance as a witness, in the same way as the Member.50 Officers are particularly protected when carrying out lawful orders of the House of Commons.

7.

A Member of the Senate or House of Commons is not required to answer a subpoena to attend as a witness before a court of law in either a criminal or civil matter or before any administrative or military court or tribunal.51The immunity extends to the same period of time as exemption from civil arrest, i.e. 40 days before and after a session, and 40 days after a dissolution.52 This applies equally to a Member of a legislative assembly of a province or of a tenitory.53

8.

A Member of the Senate and House of Commons is exempt from jury duty in both criminal and civil matters by the lex et consuetudo parliamenti, (and further by the legislation of most provinces in respect of civil matters).

9.

Any breaches of the privileges referred to above may be treated as contempts by either House of Parliament (see Chapter 11).

46

May, 19th ed., p. 84; see also 21st ed., p. 97-9; Bourinot, 4th ed., p. 43; R. v. Gamble and Boulton. Blackstone, vol. 1, p. 165; May, 21st ed., p. 102; R. v. Gamble and Boulton, supra, note 15; Bourinot, 4th ed., p. 44. Pelletier v. Howard (1940), 43 Que. P.R. 258. See also text at note 4. May, 19th ed., p. 110; see also 21st ed., p. 102; Halsbiuy, 4th ed., vol. 38, p. 596; Bourinot, 4th ed., p. 58. May, 19th ed., p.110, 153-4; see also 21st ed., p. 102, 132-4; Bourinot, 4th ed., p. 58; Halsbury, 4th ed., vol. 38, p. 596. May, 21st ed., p. 100; Halsbury, 4th ed., vol. 38, p. 596; Bourinot, 4th ed., p. 45-6. H.C. 34 (1966-67), para. 102 (UK). See Chapters 1 and 3 relating to definition of "freedom of speech."

47 48 49 50 51 52 53

t

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

Each•House of Parliament has jurisdiction over its precincts. While outside of "proceedings in Parliament" and parliamentary debate the criminal law applies to Members of the House of Commons, the act of doing something within the "precincts" could constitute a contempt of Parliament which when done beyond the precincts would be innocuous. Therefore, it might be useful to examine "precincts of Parliament" in the privilege context after determining its general geographical location.

Dictionary definition of "precincts

))

The Shorter Oxford English Dictionary defines "precincts" as "the space enclosed by the walls or other boundaries of a particular place or building, or by an imaginary line drawn around it, especially the ground immediately surrounding a religious house or place of worship" and "a district defined for purposes of government or representation." Wharton's Law Lexicon defines it as "the immediate neighbourhood of a palace or a court."1 Words and Phrases Legally Defined tells us it was conceded that the words "close" and "precincts" impart the notion of a boundary surrounding an enclosure, but that the boundary might be a line or national surround. The word "precincts" can also be used to mean "the environs."2

What they are In the parliamentary sense,3 the precincts are the premises that the House of Commons and the Senate occupy from time to time for their corporate purposes. It includes those premises where each House, through its Speaker, exercises physical control to enable the Members to perform their parliamentary work without obstruction or interference.

Where they are In the context of the Canadian Parliament, this would presently include for the House of Commons that part of the building known as the

2 3

8th ed. (London: Stevens and Sons Ltd., 1889). 3rd ed., vol. 1 (London: Butterworths, 1988) Neither the Parliamentary Dictionary of Abraham & Hawtrey nor the Encyclopaedia of Parliament contains the expression.

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Centre Block of the Parliament Buildings containing the Chamber and committee rooms that has traditionally been under the control of the House of Commons (the rest of the Centre Block has traditionally been under the control of the Senate and is the precinct of the Senate), the Parliamentary Library (joint responsibility of Senate and Commons), as well as any other buildings or parts of buildings over which the House of Commons exercises control. At the present time, those other buildings are the West Block, the Confederation Building, the East Block, the Victoria Building (a Senate building), and what was formerly the Metropolitan Life Building, which is now referred to as the Wellington Building. The House of Commons also occupies most of La Promenade Building, in which there are committee rooms, and parts of other buildings. It will be seen that the grounds of Parliament Hill are not part of the precincts. Furthermore, the expression "Parliament Hill" may not be used for commercial purposes, and may not be used to describe or designate a property, place, site, or location in the National Capital Region other than the area of ground in the City of Ottawa bounded by Wellington Street, the Rideau Canal, the Ottawa River, and Bank Street.4

Not a sanctuary It is sometimes thought that the precincts constitute a sort of

sanctuary in the ecclesiastical sense. We have already seen that even the floor of the House of Commons is not sacrosanct on a day that the House is sitting, but before the arrival of any Members, when it comes to arresting a Member who is a fugitive from justice.5 Indeed, save for any words or deeds said or done by a Member of Parliament as part of a proceeding in Parliament in the Chamber or a committee room, and save for anything done pursuant to the lex parlictmenti, the criminal law and the rest of the general and public law of Canada apply within the precincts: "It is not the precinct of Parliament that is sacred but the function...."6 What does not necessarily apply is the law of the province in which the precincts are situated, i.e. Ontario. For example, one of the corporate privileges of the House of Commons is the right to regulate its own internal affairs and procedures free from interference by the courts. This was how the courts construed "internal proceedings" in 1935 in the 4 5 6

See the Parliament of Canada Act, R.S.C. (1985), c. P-1, s. 80. See Lord Cochrane's Case (U.K.), C.J. (1814-15), 186; Debates (1814-15), 30, col. 309 at 336; see supra, Chapter 9, text at note 11. Hugessen A.C.J. in Re Ouellet (No. 1) (1976), 67 D.L.R (3d) 73 at 87, aff'd 72 D.L.R. (3d) 95 (Que. CA). See also Bourinot, where the author tells us that in the Canadian Parliament during the session of 1885 a Member of the Commons was arrested and fined by the police magistrate of Ottawa for an assault committed in the lobby of the House on a person who had written offensive matter to the press, 4th ed., p. 43.

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United Kingdom; i.e. the rights of the House could not be confined to what took place within the debating Chamber, and so liquor outlets could be provided within the precincts without the necessity of obtaining licences from the regular licensing authority.7 The civil law (for example, the law of negligence, defamation) would apply, however, in any matter within the precincts that did not involve a proceeding in Parliament or a matter within the jurisdiction of the House to regulate the precincts. This corporate privilege is one of the privileges included in the rights, privileges, and immunities referred to in s. 18 of the Constitution Act, 1867 that constitute an express grant of all these privileges, rights, and immunities held, enjoyed, and exercised by the British House of Commons in 1867. Therefore, while liquor licensing is a provincial matter under s. 92, s. 18 of the Constitution Act, 1867, by express grant, permits the Parliament of Canada to hold, enjoy, and exercise all the privileges, immunities, and powers held, enjoyed, and exercised by the British House of Commons as defined by act of Parliament. Parliament, by what is now s. 4 of the Parliament of Canada Act, defined for the two Houses their privileges, immunities and powers to be those held by the British House of Commons in 1867 with the power to enact new privileges as long as they do not exceed those of the U.K. House of Commons at the time of the passing of the act. Unless the courts found otherwise, the matter of selling liquor on the precincts is characterized as a matter ofprivilege, considered part of the internal matters of the Houses of Parliament.

Library of Parliament The Parliamentary Library is within the buildings of Parliament, and thus within the geographical precincts. More important, the Library is there to serve the corporate needs of each House of Parliament and to service the needs of Members in their legislative capacity, and is under the direction of the Speakers of both Houses assisted by a joint committee of both Houses.8 The close connection between the House and the Library was demonstrated in 1866 when an assistant librarian, Mr. G6rin-Lajoie, came to blows with the Member for Drummond—Arthabaska over an articles contained in a newspaper owned by the Member. The Member raised the matter in the House, and the Speaker's remarks made it clear that whatever occurs in the precincts is under the control of the House and the Speaker. Mr. Gerin-Lajoie was found to be in contempt of Parliament. He was admonished and subsequently dismissed. The authority of the House of Commons over its precincts, one could say, was thus settled before Confederation where the Speaker addressing the 7 8 9

R. u. Graham-Campbell, ex parte Herbert, (1935) 1 KB. 594. Parliament of Canada Act, R.S.C. (1985), c. Rl, s. 73-79. The article itself constituted a prima facie case of privilege.

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unfortunate librarian, asserted on behalf of the Legislative Assembly of the Province of Canada: Mr. Gerin-Lajoie, it is a power incidental to the constitution of this House to preserve peace and order within the precincts and protect Members of it from insults and assault. This power is necessary not only to insure the freedom of action of Members, but that freedom of discussion which is one of their fundamental rights. You, Elzear Gerin-Lajoie, pretending a case of complaint against a Member of this House, sought him out, and came within the precincts of this building, and within a part thereof to which you are entitled to resort—not by right, but by favour only—grossly insulted the Honourable Member, and concluded by violently assaulting him. For those breaches of privilege you have not even thought judicious or becoming to offer any apology; you have mistaken your rights and position in reference to Honourable Members and in this building. The place in which this insult was offered and assault committed greatly aggravates the criminality of your conduct....1°

Contemptuous acts done within precincts on a sitting day treated as if done in the face of the House What the Gerin-Lajoie incident points out is that an act committed within the precincts on the day the House is sitting, such as assault by deed or word on a Member by a stranger, is treated as if the act is done in the face of the House. Accordingly, the act need not be one that, if done beyond the precincts, would have to constitute a contempt of the House. Such acts are treated as offences against its dignity." For example, assaulting or obstructing a Member for a reason unconnected with his representative capacity, or unconnected with his duties in the Chamber or committee, does not constitute contempt of Parliament when such assault or obstruction takes place beyond the precincts, but would constitute contempt, for whatever reason it was done, if done within the precincts on a sitting day.12

Position of U.K. Commons The position in the British House of Commons is illustrated by an event that occurred in 1947. Mr. Piratin, a Member, had exchanged blows with Mt Lucey, a member of the press gallery, all of which took place within the precincts and while the House was sitting. The Committee on Privilege reported that an assault within the precincts while the House is sitting by whomsoever committed must be regarded as a serious offence against the dignity of the House. Both persons were admonished. The 10 11

Journals of Province of Canada, August 1, 1866, p. 257-63. H.C. 36 (1946-47), Appendix 1 (UK.); H.C. 31 (1945-46), para. 16 (UK). 12 If a judge were assaulted on the street, the assault would be a criminal offence but would not constitute contempt of court.

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report regarded the assault by the Member as the more serious, "being derogatory to the dignity and honour of the whole body of which he is a Member." The report was more lenient toward the member of the press gallery — he had not struck and had been provoked before he verbally insulted Mr. Piratin — there had been an exchange of verbal insults whereupon Piratin struck Lucey.13 The U.K. position is stated in the report from the Committee on Privilege, adopted March 22, 1946: Misbehaviour within the precincts, while the House is sitting, even though not calculated to disturb the proceedings of the House, is punishable as for breach of privilege. The principle upon which it is so punishable can only be that the House is deemed to be present in every part of the building in which it is sitting, and therefore misbehaviour within the precincts of the House is misbehaviour in the presence of the House, in the same manner as contempt may be committed constructively in the face of the court of justice though not in its actual view.14 Service of process within the precincts of the House during a prorogation, or during any periodical recess or even on a day over which the House had adjourned is not a breach of privilege. To hold that it is would be to confuse what the House is with where the House is.15

Canadian position On the other hand, the Canadian House of Commons did not distinguish between sitting and non-sitting days when the Privileges and Elections Committee ruled that police forces coming on the precincts on official business without permission of the House or of the Speaker amounted to a contempt of the House.16 Furthermore, the Supreme Court of Canada found that a legislature's authority over its precincts is not diminished by a prorogation (see infra, text at note 48). While it is correct to say that the Speaker's jurisdiction does not extend to words outside the House, it really means that a Member of the House of Commons cannot utter "unparliamentary" words outside the Chamber. On the other hand, unparliamentary words, or insulting words to a Member of the House of Commons within the precincts while the House is sitting, could be raised in the House according to the British practice since the act would be considered to have been done in the face of the House.17 Furthermore, the House may hold someone in contempt of Parliament for acts or conduct constituting breach of privilege or contempt whether or not they take place inside or outside the Chamber or 13

16

H.C. 36 (194647), (U.K.). H.C. 31 (1945-46), para. 16 (UK.); see Chapter 12. H.C. 31(1945-46), para. 11 (U.K.) — a writ of summons had been served on the Private Secretary to the Speaker while the House was sitting. Journals (1973-74), p. 532, 567. See also Chapter 12, supra: Contempt Relating to the

17

H.C. 31 (1945-46) (U.K.).

14 15

Precincts of Parliament.

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within or without the precincts of Parliament, and whether or not these acts amount to a violation or disregard of privileges of the House.

Service of civil process on a sitting day could amount to contempt Whether a Member is served inside or outside the buildings with a subpoena to attend court as a witness while the House is sitting, either case could be considered a contempt because in either case, the House is entitled to the service and attendance of its Members. However, if the House is sitting and the process is served within the precincts, that would be contempt specifically because it is deemed to have been done in the presence of the Chamber.18 But an offence against a Member whether on Parliament Hill or in Vancouver, which clearly was directed against him on account of his parliamentary work (as, for instance, assaulting him for what he said in the Chamber), would be considered a contempt of Parliament as infringing on the Member's privilege of freedom of speech.

Title to Parliament Hill Section 108 of the Constitution Act, 1867 points out that the property of each province, enumerated in the third schedule of the Act, shall be the property of Canada. The third schedule shows as item 9 property transferred by the imperial government known as "ordnance property" A plan in the Registry Office for the Registry Division of the City of Ottawa dated October 20, 1859, shows the area of Parliament Hill (including the area of land on which is located the Confederation Building) as "ordnance property." Title to the buildings and land is in the name of Her Majesty in right of Canada. It seems that with the exception of the years 1802-23, Parliament Hill has been owned by the Crown — successively the Crown imperial, the Crown provincial, and the Crown federal. Since 1823, the Crown has always held these lands for public purposes — either for defence or generally. In 1802 the British Crown granted the area to Jacob Carman, who deeded it in 1812 to Thomas Fraser by whose son Hugh it was inherited. In 1823 the Earl of Dalhousie, the Governor, purchased the Hill from Hugh Fraser on behalf of the British Crown and, by letter, entrusted its control and management to Colonel John By with instructions that the Hill, together with Major Hill and Nepean Point, be reserved for military purposes. About 1857, the British Crown transferred the ordnance (or military) lands — these included the Hill, together with the Rideau Canal 18

See Debates, May 19, 1989, p. 1951-3. Quaere: Should this include service of documents by facsimile?

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lands — to the Government of Upper Canada. With Confederation, the Hill and the buildings then thereon were included in those public lands and works transferred from Upper Canada to Canada by s. 108 of the Constitution Act, 1867 and clause 9 of the third Schedule thereto.19

Management, care, and control of the Parliament Buildings By virtue of the Public Works and Government Services Act,20 the Minister of Public Works and Government Services has the management, charge, and direction of the property known as "ordnance property," which includes Parliament Hill and all of the buildings, including the Confederation Building, i.e. the Centre Block and the West Block. In addition, by virtue of paragraph 9(1)(f) of the same Act, the minister has the management, charge, and direction of "the heating, maintenance and keeping in repair of the Government buildings and any alteration requisite therein, and the supplying of furniture and fittings or repairs to those buildings". The grounds are maintained by the National Capital Commission by virtue of a request from the Minister of Public Works.21 The buildings presently occupied and used by Members of the House of Commons are the Centre Block, the East Block, the West Block, the Confederation Building, the Wellington Building, and La Promenade Building. The Centre Block and its predecessor have been used for parliamentary purposes since they were built. The West Block and the Confederation Building have been used by Members exclusively since 1963 and 1973 respectively. The House of Commons began to use the Metropolitan Life Building in 1977, and it is now referred to as the Wellington Building. While the East Block had formerly been used by the Prime Minister for meetings of Cabinet, it was first occupied by other Members of the House of Commons and by Members of the Senate in 1980. Whereas control and management of Crown buildings may be transferred from one minister or department to another by order-in-council under the Public Service Rearrangement and Transfer of 19

20

21

The chronology of ownership was taken from the Appendix to the Debates, December 21, 1963, p. 6385. There has been no formal grant of any part of the Palace of Westminster to the U.K. Commons. R.S.C. 1985, c. P-38. By virtue of PC. 1993, p. 1484, June 25,1993, passed under s. 2(a) of the Public Service Rearrangement and Transfer of DutiesAct, (R.S.C. 1985, c. P.34, all of the powers, etc., of the Minister of Supply and Services have been transferred to the Minister of Public Works, now the Minister of Public Works and Government Services, the latter to be enacted by Parliament. National Capital Act, R.S.C. (1985), c. N-4, s. 10(2)(d).

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Duties Act,22 the control of these buildings was, in the case of the West Block and Confederation Building, simply handed over by the Minister of Public Works to the Speaker by means of a symbolic handshake, because there was no other way provided by the relevant section of the Act or the regulations,23 i.e. the House of Commons is not a department of the government of Canada, but exists as a constituent element of Parliament. However, the law of Parliament, which is part of the general and public law of Canada, provides that the House of Commons is entitled to regulate its own internal affairs free from the interference by the courts.24 This includes overseeing those areas occupied and used by Members to assist them in performing their parliamentary functions, which better enables the House to secure the service and attendance of its Members. At the same time, the House is better able to discharge its collective functions.

Each House administers its own affairs Each House of Parliament is entitled to the administration of affairs within its own precincts free from interference by the courts, including outside police forces. Control of the accommodation and services within the Parliament Buildings is therefore vested in the Speakers of the Senate and House of Commons on behalf of their respective Houses. Thus Public Works and Government Services and other government departments act only on the advice of officials of each House.

Traffic control and negligence on the roadway on Parliament Hill By virtue of regulations under the Government Property Traffic Act,25 the law of the Province of Ontario relating to the operation of vehicles on a highway applies to vehicles using roads on Parliament Hill. In addition, the Minister of Public Works and Government Services, who has the control and management of the Hill, may cause to be erected or marked traffic signs or devices prescribing rates of speed, regulating parking, prohibiting traffic, for stopping vehicles, regulating pedestrian traffic, and directing or controlling traffic in any manner. The courts have held that "[i]t is eminently sane that traffic regulations and similar enactments regarding highways upon Dominion property should conform at all times with those on highways in the areas surrounding such

22 23

24 25

R.S.C. (1985), c. P-34. S. 36 of the Public Works Act. See Chapters 11 and 14, Bradlaugh u. Gossett (1884), 12 Q.B.D. 271. RS.C. (1985), c. G-6.

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property and that such was the intention of the present Regulation."26 This would apply to quasi-criminal matters; for instance, offences under the Ontario Highway Traffic Act," and civil actions.

The police and the precincts on the House of Commons The security of the buildings occupied by Members comes under the Protective Service of the House of Commons because the House alone may regulate its own affairs and its own proceedings within its own walls. Standing Order 157(2) provides that the Sergeant-at-Arms "preserves order in the galleries, corridors, lobbies and other parts." (There is no mention here of the area outside the buildings.) Should events occur inside the buildings that would require further help, it is arranged that the security staff will ask for and receive assistance from the RCMP and/or the city police. Because the administration of justice is a provincial responsibility, any breaches of the Criminal Code within the precincts will be prosecuted by the Crown Attorney for the Judicial District of Ottawa-Carleton.

Function of precincts is "sacred" It is the function of the precincts that is "sacred" and not its location. That is the position at Westminster (see supra, text at note 16) and the position in Canada. The immunity from service of any process, criminal or civil, therefore extends to all persons within the precincts of the House on any sitting day who are not Members, i.e. officers of the House and other strangers, whether they are temporarily within the precincts as witnesses or as visitors in the public gallery, because the insult to the House from such actions stems from the act of serving the process.28 This does not mean that criminal justice or civil justice will be paralysed. A stranger would not be able to remain continuously on the precincts. In urgent cases, the Speaker, or the House, could take action and have the person removed from the precincts to allow service of process outside or allow the service or execution of process, particularly criminal, to be effected within the precincts.29 In a case where the RCMP wished to execute a search of a Senator's office on the authority of a search warrant, it seems that he had (by telephone) given permission for the RCMP to execute the search warrant to search his office within the precincts of the 26 27

28 29

R. v. Glibbery, [1963] 1 O.R. 232 at 235 (CA). R.S.O. (1990), H-8. Debates, May 19, 1989, p. 1951-3; June 10, 1993, p. 20693-4. H.C. 31 (1945-46), para. 18 (UK).

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Senate simultaneously with its execution. It was done on a day that the Senate was not sitting, during a periodic long adjournment.30 Of course, anyone committing or about to commit a criminal act within the precincts while the House is sitting or not may be immediately taken into custody by a member of the security staff or by any person witnessing the crime, because the precincts are not a sanctuary and the criminal law applies there as it does elsewhere in Canada.31

Police may not come onto precincts uninvited when on official business It now appears clear that the House of Commons will not tolerate outside police within the precincts on official business unless it is done with the permission of the Speaker, regardless of whether the House is sitting. The case of 1973 has established this, and while that incident dealt with police interviewing the staff of a Member,32 a fortiori it would apply where the police wished to arrest a Member on the precincts, such as the case of the Member for Lapointe in 1965, where it will be seen that the RCMP had been told they could not arrest the Member on the "precincts and thus he was arrested outside the Centre Block."33 Generally speaking, the ordinary civil and criminal laws of the Province of Ontario and of Canada respectively apply on Parliament Hill and within the precincts in the same way as elsewhere in Ontario. While each House controls its precincts, each House is not prepared to tolerate breaches of the criminal or civil law. There is no immunity in respect of illegal acts committed within parliamentary precincts, except what occurs during a proceeding in Parliament or within the very narrow limits of parliamentary privilege. At the same time, the exclusive privilege of the House to regulate proceedings within its own walls must be respected: "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."34 To this limited extent, the law and custom of Parliament prevails over the general law. The Legal Counsel (formerly Law Clerk and Parliamentary Counsel) of the House should accompany police officers while officially in the building, for example, when executing

30 31 32 33 34

Senate Debates, November 12, 1975, p. 1400. See also H.C. 31 (1945.46), para. 19 (UK). Journals, September 4 and 21, 1973, p. 567. See infra, note 39. Report of the Standing Committee on Privileges and Elections, Journals, September 21, 1973.

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a search warrant on a Member's parliamentary office, in assertion of parliamentary authority and to prevent police "fishing expeditions."35 The Protective Service of the House of Commons derives its authority from the House as represented by the Speaker. This is the basis for any immunity the service has from legal liability for its actions. This protection of course can be lost as soon as a constable goes beyond his authority within the precincts.36

Grounds of Parliament Hill are not part of the precincts As regards the policing of the area of Parliament Hill outside the buildings, the Protective Service has no more jurisdiction than the ordinary citizen and the House of Commons has never claimed that it has (a further indication that the precincts do not go beyond the walls). On the other hand, there is no specific legislation either for the policing of the area or governing the conduct of visitors, except for motorists, under the Government Property Traffic Act.37 The Criminal Code applies as it would for crimes committed within the buildings. Since the Hill is Crown property, federal police officers were involved from the beginning, and the RCMP has been responsible for policing since 1921, when they took over from the old Dominion Police. Under the Royal Canadian Mounted Police Act, the Governor-in-Council may require the force to perform such duties and functions in such places within Canada as the Governor-in-Council 35

36

37

For a description of the standard practice regarding the execution of search warrants in the Houses of Parliament, see Minutes of Special Committee on the Review of Parliament of Canada Act, January 18, 1990. Before a search warrant is issued by a court, the judge must be satisfied by "information on oath that there are reasonable grounds to believe that there is in a building a receptacle or place,—(a) anything on or in respect of which any offence against this Act or any other act of Parliament, has been or is suspected to have been committed.—(b) anything that there is reasonable grounds to believe will afford evidence....against this....Act...." Criminal Code, s. 487 (1). See provisions of the Criminal Code, R.S.C. (1985), c. C-46, respecting encountering resistance: s. 41, 30; the Trespass to Properly Act, R.S.O. (1990), c. P-21, s. 9(1) and relevant jurisprudence. R.S.C. (1985), c. G-6. In 1990, amendments to regulations under the Public Works Act, and Public Works Nuisance Regulations were adopted at the behest of the Board of Internal Economy of the House of Commons. Their purpose was to permit Members of the House and their staff to have access to the Parliament Buildings "free of harassment and confident of their safety" but in effect restricted the activities of persons at the entrances to the Parliament Buildings' Centre Block. Those regulations were considered by the Standing Joint Committee for the Scrutiny of Regulations and it resolved that the amendments be revoked. See Sixth Report (Report No. 51) of the Standing Joint Committee for the Scrutiny of Regulations, November 19,1992. The amendments to the regulations were revoked by SOR/92-737 10 December 1992. Note para. 5 of the Sixth Report, which sets out the Criminal Code protections already in existence.

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prescribes. The force is controlled and managed by the Commissioner, who is under the direction of the Solicitor General. Thus, the Governor-in-Council has required the RCMP to assume duties including traffic control on the Hill, and the Solicitor General is responsible for their execution to the Governor-in-Council and to Parliament. There is also an arrangement that in the event crowd control becomes such a serious problem that it turns into a riotous assembly and the senior RCMP officer of the local detachment on the Hill decides that it is necessary, he will request the Sergeant-at-Arms or his deputy, who are empowered as Justices of the Peace, to read the proclamation under s. 67 of the Criminal Code (the "Riot Act"). Again, if prosecutions under the Criminal Code are warranted, they will be undertaken by the local Crown Attorney because it involves the administration of justice, a provincial responsibility. An example of arrangements between RCMP and the security staff occurred on the occasion of the visit of the Israeli Foreign Minister, May 15,1970, as taken from the remarks of the Speaker.38 The report which I have now received indicates that as part of security arrangements, the Royal Canadian Mounted Police kept people away from the main entrance to the Centre Block during the two brief periods while the Minister actually entered and left the building. Arrangements were made with the House of Commons security personnel to stand just outside the main entrance to identify anyone approaching the building for admission. The report states that no one, that is, no Member of the House and no member of our staff, was denied admission during the period. It is recognized, however, that there might have been a momentary delay if a Member had to be identified by the protective staff officer posted outside the main entrance for this purpose.... In 1965, when the then Member for Lapointe was arrested on Parliament Hill outside the Centre Block, the Standing Committee on Privileges and Elections in reporting on the circumstances of his arrest referred to the two warrants of commitment issued as a result of the non-payment of traffic fines and went on to say that the privilege of freedom from arrest of a Member had not been infringed and that in carrying out the arrest, the actions of the RCMP did not constitute a breach of parliamentary privilege.39 To follow this up logically, in the event the grounds on Parliament Hill at the time were considered as sacrosanct as the buildings themselves, the act of arresting would constitute a contempt of Parliament if the House had been sitting. Because Members are amenable to the criminal law, the arrest itself is not the act of contempt, but what 38 39

Debates, May 25, 1970, p. 72. Journals (1965), p. 1141-42 and proceedings of the Committee.

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could constitute a contempt is if the arrest takes place within the precincts when the House is sitting and leave of the House or of the Speaker is not obtained. Therefore, in finding as it did, the Committee in effect found that the precincts do not extend beyond the walls. In 1970, when the Member for Hillsborough stated in the House that he was denied entrance by RCMP on the occasion of the visit of the Foreign Minister of Israel, the Speaker said: As Honourable Members realize, if I may say this in passing, the difficulty we have in relation to this situation is that while the parliamentary precincts, by tradition and practice, are recognized as covering the buildings themselves and principally the Centre block and West block, parliamentary precincts have never been officially deemed to include the grounds surrounding our buildings, which makes of course for a divided authority. So far as the Centre block is concerned, there is no question whatever that the protective staff of the House of Commons, who are parliamentary employees, have sole and exclusive jurisdiction over protection within this building. I can assure the Honourable Member that as far as I am concerned, there is no intention whatsoever of allowing this to be changed. At the same time, once we are out of the building, we fall on grounds which are perhaps a little more directly under the control of the Executive. This may have been the source of the misunderstanding to which the Honourable Member referred a moment ago.4°

Later, following investigation by the Speaker, he went on: I should take this opportunity to restate, if this is necessary at all, the time-honoured privilege of Honourable Members to have free and unimpeded access to the Parliament Buildings. This principle should be recognized even if there is some question as to the extension of the term "parliamentary precincts," and in particular whether the jurisdiction of the Speaker, exercised on behalf of Honourable Members, extends beyond the limits of the Parliament Buildings themselves.4I

Precincts in U.K. In England, the parliamentary precincts are considered to be the area within the walls of the Palace of Westminster, and, by virtue of their corporate occupation by the Commons, the outbuildings used by Members.

Precincts in New Zealand In New Zealand, "precincts" of Parliament probably include the grounds, because while Parliament is in session, the control and administration of the grounds are under the jurisdiction of the Speaker on 4°

41

Debates, May 15, 1970, p. 7007. Ibid., May 25, 1970, p. 7255; see also Debates, December 1, 1980, p. 5205.

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behalf of the House." Upon dissolution, the control reverts to the government.

Precincts in Australia In Australia, the Speaker of the House of Representatives has said, "My own conception of the extent of the Speaker's authority is, and always has been, that such authority ends at the outer walls of this building."43 A more recent definition is "any place de facto occupied by Members for their parliamentary duties is part of the precincts...?"

Access to the precincts No impediment should be placed on the Member in going about his parliamentary business, whether in the House, on his way to the House, or while on his way home. On the contrary Members are "to have free and unimpeded access to the Parliament buildings?" In Speaker of the Legislative Assembly of Ontario u. Leah Casselman and others obstructing access to, or egress from the Legislative Precinct, Ontario Court of Justice (General Division), March 18,1996, File 96-MU-1408, Winkler J. granted an injunction to restrain members of a public service union from obstructing access by Members as such conduct constitutes a violation of parliamentary privilege. They are assisted while within the "precincts" because the movement of the public within is regulated; to afford the same assistance to Members while on the grounds of Parliament Hill, the movement of the public would have to be equally regulated.46 Since Parliament Hill has always been a public place, restricting the movement of the general public on the grounds would probably be considered excessive.47 The public does not have an intrinsic right to enter property merely because it is owned or used by a branch of the government. In the case of streets, parks, schools, hospitals, libraries, and museums, there is an implied invitation to the public at large to use the property (subject to reasonable behaviour consistent with the purpose of the facility). This is not true, however, of most federal government offices, and is certainly not 42

43 44 45 46 47

Police o. Walter (1976), 1 N.Z.L.R. 355. Australia Parliamentary Debates (1950-51), p. 331. House of Representatives Practice (Australia) 2nd ed., 1989, see p. 156-9. Debates, May 25, 1970, p. 7255. Minutes & Proceedings of Standing Committee on Procedure and Organization of the House of Commons, May 24, 1973. There was little if any restriction on the grounds of Parliament Hill even during the 1970 October Crisis

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true of the Parliament Buildings. The two Houses of Parliament have exclusive possession of the portions used by them respectively, and have at least the same right to exclude strangers as the law affords to private persons in possession of property. Visitors who disregard the restrictions imposed on them are therefore trespassers. The public's right of entry was considered by the Supreme Court of Canada in 1904 in the case of Payson v. Hubert.48 The chief messenger of the Nova Scotia House ofAssembly, on instructions from the Speaker, on a day that the legislature was not in session had removed a woman from the corridor who had been making a nuisance of herself by remonstrating loudly with Members. She subsequently brought a civil action against the chief messenger for assault. Mr. Justice Davies in effect set down the guidelines at p. 212-3: The true rule which must guide the Speaker and the officers of the House in the exercise of their duty of preserving order and decorum is, in my judgment, that the public have access to the Legislative Chamber and to the precincts of the House as a matter of privilege only, and under either express or tacit license, which can at any time be withdrawn or revoked when in the interest of order and decorum it is judged to be necessary. That withdrawal of license can either be general as regards the whole public or special with respect to individuals who make themselves so offensive as to prejudice the proper conduct of public affairs committed to the Assembly or its committees. It can ex necessitate be exercised by the Speaker or officers of the House in proper cases as against individuals offending against the rules or order and decorum or interfering with the proper discharge of their duties by Members in the intervals of the adjournments of the House between its sessions, as well as by the House when actually sitting. Any other rule would leave the Assembly rooms, the meetings of committees or the work of the Members carried on during the adjournment at the mercy of any individual or body of men who might obtrude themselves into the Chamber or its Committee Rooms and prevent the public business being carried on. He added at page 417: I think...the liberty of access which the public has to attend the proceedings of the House of Assembly and its committees and to visit the precincts and rooms of the House is not a right but a license or privilege capable of being revoked, and when properly revoked as to any one, leaving him or her a trespasser and liable to expulsion as such. More commonly, the restrictions apply to members of the public at large rather than to specific persons, and confine them to certain times 48

(1904), 34 S.C.R. 400.

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and places rather than excluding them altogether. The policy was perhaps well summarized by the Standing Committee on Procedure and Organization in a report to the House on March 16, 1971, following a number of disturbances the previous year: Your Committee believes that the main problem in connection with security in Parliament is to strike a reasonable balance between the importance of allowing the public ready access to the House of Commons on the one hand and the necessity of preserving the security of the House on the other. Your Committee was governed at all times by the belief that Parliament should not be isolated from the people as a result of exaggerated security measures and that it is important in a democratic society that Members of Parliament should continue to have direct communication with the public... It is not easy to reconcile these two imperatives but your Committee feels that the balance should always be in favour of permitting the public reasonable and proper access to Parliament....

CHAPTER 11

The Corporate Rights, Privileges, and Powers of the Senate and of the House of Commons Introduction It will be seen that references have been made from time to time to what the House of Commons and the Senate can or cannot do. Neither House is a legal entity in the sense that they cannot sue or be sued, as each House exists only as a constituent element of Parliament.' Nevertheless, while the Houses of Parliament are primarily legislative bodies, the privileges that they require to perform their constitutional duties necessitate a corresponding power to protect them and to punish their violation. It is not unlike the power of the courts of justice to punish for contempt. One difference, it will be seen, is that neither House may impose a fine.2 A more significant difference between the House and the courts is that save where it interprets and administers the law of Parliament relating to contempt and where it interprets and administers any statute setting out procedures to be followed by either House,3 the Speaker of neither House administers or interprets the law or the Constitution in the sense of adjudicating whether a matter before the House is constitutional!' This is the accepted role of the courts. Therefore, the Speaker will turn aside requests to determine whether any bill before the House is ultra vires the Parliament of Canada. 1 2

3 4

See infra, Suits by or against the House of Commons or Senate. R. v. Pitt (1762), 3 Burr. 1335, 96 E.R. 214; May, 19th ed., p. 129; since it was in desuetude in the U.K. in 1867, it is accordingly not included in the lex parliamenti carried over to Canada by a. 18 of the Constitution Act, 1867. See infra, The Right to Regulate Internal Affairs Free from Interference. There are, however, "standing instructions" to the Legislative Counsel (formerly the Law Clerk and Parliamentary Counsel) of the House of Commons to turn down requests from Members to draft bills that are obviously unconstitutional, i.e. whose principal purpose is the expenditure of public funds (money bill) or taxation and thus are within the prerogative of the government only, or that clearly relate to matters over which the provinces have legislative authority. Members may now introduce a bill in which the spending of public money is only ancillary to its main purpose, even to the extent of the government providing such a bill with a Royal Recommendation. (See, for example, proceedings relating to Bill C-216, An Act to Amend the Unemployment Insurance Act (jury service), introduced February 16, 1994; received Royal Assent March 26, 1995, now C. 7 Statutes of Canada 1993-94-95.)

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In other words, each House interprets and administers the law of Parliament in order to find breaches of privilege or contempt in appropriate cases, and interprets any statute law5 setting out procedures to be followed. This is the only part of the general and public law of Canada in which the House has jurisdiction for purposes of interpretation and adjudication. Otherwise, "the Chair is in no position to interpret either the law or the constitution. Whether something takes place in this House is constitutional or legal is not for the Chair to decide. The Chair only decides whether we are following our own rules ."6 Whether or not an Act applies (to the House of Commons) is a legal issue that the courts should decide, not the Speaker.? One of the rules of the House of Commons is that the Speaker decides whether any set of facts amounts to a prima facie case of privilege. If so, the House is the only body competent to fmd that a contempt of the House or a breach of privilege has occurred.8 Finally, while a power, the right to punish for contempt fulfils the definition of privilege, i.e. it is absolutely necessary for the House to be able to vindicate its authority as "the grand inquest of the nation."9 Accordingly, we will also deal with these "corporate" privileges of the House of Commons and of the Senate.

Power to discipline Since Article 9 of the Bill of Rights, 1689 prohibits the questioning of the proceedings of Parliament in any place outside Parliament, those participating in its proceedings, principally the Members but also witnesses, petitioners and others, are protected against any outside interference for what they say or do within. These persons are also subject to the disciplinary powers of the House for their conduct during the proceedings.

5 6

7 8

However, it will be seen that a House or legislature must follow any procedures set out in the Constitution (see infra this chapter). Debates, October 30,1980, p. 4253, following Bourinot, 4th ed., p. 180; this may be the reason why those sections of the Constitution Act, 1867 relating to quorum and how questions are decided are also contained in the rules of each House, and why s. 54 of that Act relating to procedures for financial bills is also contained in Standing Order 79 of the House of Commons. Debates, March 17, 1987, p. 4263-4. Except in the circumstances such as were present in Landers o. Woodworth (1878), 2 S.C.R. 158. See Chapters 13, 14. Denman Ch. H., in Stockdale v. Hansard (1839), 48 Rev. Rep. 326 at 404; Bourinot, 4th ed., p. 40.

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Jurisdiction over its Members is absolute and exclusive There are many examples to cite respecting Members, but it is to be noted that the court in Bradlaugh v. Gossett had before it an action for a declaration that the order of the House (directing the Sergeant-at-Arms to exclude the plaintiff Member from the House until he undertook to create no further disturbance) was beyond the power and jurisdiction of the House and void, as well as for an order restraining the Sergeant-at-Arms from preventing Bradlaugh by force from entering the House.1° The court said that both Burdett v. Abbot and Stockdale v. Hansard are emphatic that "the jurisdiction of the Houses over their own Members, their right to impose discipline within their walls, is absolute and exclusive"11 and accordingly declined jurisdiction. The House of Commons has power to punish its own Members for disorderly conduct and contempts committed in the House while it is sitting. The punishment can range from a reprimand, to suspension for disregarding the authority of the Chair,12 to expulsion,13 to commitment to jail. The power of commitment has been described as the "keystone of parliamentary privilege."14

The right to have the attendance and service of Members Standing Order 15 of the House of Commons provides that "every Member, being cognizant of the provisions of the Parliament of Canada Act, is bound to attend the sittings of the House, unless otherwise occupied with parliamentary activities and functions or on public or official business." When the question of the absence of a Member was dealt with on October 4, 1967, the Speaker ruled that the then Standing Order in question was no longer of any practical effect but was superseded by the penalty sections in the Senate and House of Commons Act (now the Parliament of Canada Act) respecting absence beyond twenty-one days in 10

(1884), 12 Q.B.D. 271 at 275. Ibid., at 275. 12 For example, on March 21,1979, when the House decided on the motion of the Leader of the House to support the Chair, the Member for Leeds was suspended for one day for failing to withdraw from the Chamber after being named by the Speaker following the use of unparliamentary words. 13 See Bourinot, 1st ed., p. 150, for list of expulsions since 1800; since 1884, McGreevy was expelled in 1891 following the report of a Committee of the House of Commons, and Fred Rose was expelled in 1946 following conviction of a treason-related offence, although the form actually used was an order declaring his seat vacant. 14 May, 19th ed., p. 117. 11

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any session for other than official business or illness. The ruling only dealt with the question of a penalty respecting the salary imposed by the Act. The House could discipline the Member for non-attendance notwithstanding the Parliament of Canada Act; the Speaker pointed out that Standing Order 15 has been ignored for the past 100 years.15 This right is also closely allied with the Member's freedom from arrest, and while it has been in desuetude, the House could rely on it to compel the attendance of its Members.

The right to control publication of debates and proceedings The right to control the publication of debates and proceedings in Parliament stems from the right to exclude strangers and Article 9 of the Bill of Rights, 1689. The Article states that the debates and proceedings in Parliament may not be questioned or impeached in any place out of Parliament; therefore, it is for each House of Parliament to control its proceedings. Accordingly, the House could suspend publication of its debates and all of its proceedings. In fact the House of Commons and Senate, through the Queen's Printer, publish their own debates, votes, and proceedings (since 1994 the Standing Orders of the House of Commons have read Journals instead of Votes and Proceedings). Control over the use or reproduction of their debates or its votes and proceedings was in the past invoked by holding people in contempt for any reproduction whatsoever, but on July 16, 1971, the United Kingdom House of Commons resolved that "notwithstanding the Resolution of the House on March 3, 1762 and other such resolutions, this House will not entertain any complaint of contempt of the House or breach of privilege in respect of the publication of the debates or proceedings of the House or its committees, except when any such debates or proceedings shall have been conducted with closed doors or in private, or when such publications have been expressly prohibited by the House." A wilful misrepresentation of the debates in the U.K., however, will provoke the censure of the House,16 and in Canada an incomplete and partial reproduction has incurred the censure of a committee of the House.17

Debates, October 4, 1967, p. 2795-6. 16

May, 21st ed., p. 86.

17

See the case of the Montreal Gazette, Journals, October 17, 1975, p. 781.

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The right to regulate internal affairs free from interference The privilege of control over its own affairs and proceedings is one of the most significant attributes of an independent legislative institution. The right to regulate its own internal affairs and procedures free from interference includes: 1.

The right to enforce discipline on Members of the House of Commons by suspension, commitment, and expulsion.18 However, this creates no disability to stand for re-election.16

2.

The right to secure the attendance of persons on matters of privilege,20 and to deliberate and examine witnesses,21 and to do so behind closed doors (in camera). This latter aspect may properly be considered to be included with the right to exclude strangers from the precincts.

3.

The right to control the publication of its debates and proceedings and those of its committees by prohibiting their publication.22

4.

The right to administer that part of the statute law relating to its internal procedure without interference from the courts.23

5.

The right to administer its affairs within the precincts24 and beyond the debating Chamber, such as regulating the sale of intoxicating beverages within the precincts,25 and appointing and managing its staff.

6.

The right to settle its own code of procedure.26

7.

The power to send for persons in custody.27

18

See supra, this chapter. See May, 21st ed., p. 113, and the case of Louis Riel, expelled April 16, 1874, re-elected September 3, 1874, unseated and declared an outlaw February 25, 1875. 20 May, 21st ed., p. 116-7; Bourinot, 4th ed, p. 70. 21 Harnett v. Crick, [1908] A.C. 470; Bill of Rights, 1689, Art. 9. 22 Halsbury, 4th ed., vol. 34, p. 600-1; see also supra, The Right to Control Publication, etc. 23 Brudlaugh v. Gossett (1884), 12 Q.B.D. 271. See also Chapter 13 under Internal Proceedings. 24 In the event a person is taken into custody by the Sergeant-at-Arms (without an order of the House), the formal practice that requires an order of the House before he may be released (S.O. 158(2), Journals, March 2, 1967, p. 1482) is not followed. 25 R. v. Graham-Campbell, ex parte Herbert, [1935] 1 KB. 594; see also Williamson v. Norris, [1899] 1 Q.B. 7. 26 Harnett v. Crick, [1908] A.C. 470; Bill of Rights, 1689, Art. 9. 27 See May, 21st ed., p. 114; Bourinot, 4th ed., p. 72. 19

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With respect to the staff of each House of Parliament,28 the natural reluctance of the courts to interfere with matters related to the internal affairs of the House would include employee-employer relations in the House where it could be demonstrated that in effect the House was acting collectively in a matter that fell within the area of the internal affairs of the House.29 In other words, the House of Commons has always remained steadfast in its independence from the Crown (see, for example, the relevant sections of the Parliament of Canada Act). Accordingly, it is a logical step to include its employees as part of its internal management and thus removed from the aegis of both the Crown and the courts. However, while each House of Parliament, like any employer, has the right to hire and fire employees, their labour relations will now be guided by the new Parliamentary Employment and Staff Relations Act (1986 Stat. of Canada, 33-34-35 II, Chapter 41). The Act provides to employees of the Houses of Parliament and of the Library of Parliament collective bargaining and other rights in respect of employment. The Act does not, however, apply to persons employed in a managerial or confidential capacity nor to the staffs of Members of either House of Parliament, nor to temporary employees of their committees. Like any other Act of Parliament, the Parliamentary Employment and Staff Relations Act is subject to the Charter. The persons that the Act specifically excluded from its application likely remain included as part of the right of the Houses to regulate their own affairs, which is a constitutionally inherent right and therefore not abrogated by the Charter (see infra, Chapter 14). The Bill of Rights, 1689 declares that proceedings in Parliament shall not be questioned elsewhere than in Parliament, and the basis of privilege being necessity for the House to effectively perform its legislative and investigative functions, the examination of witnesses openly or during in camera sittings is well within rights exercisable within the House. This is the authority for the oft-repeated proposition that committees of the House of Commons are masters of their own procedure and are answerable only to the House for the proceedings that take place during a sitting. The Bill of Rights,1689 (Article 9) also easily construes the right of each House to settle its own code of procedure because it forbids anything said or done in Parliament to be questioned out of Parliament. Therefore 28

29

S.O. 151, Parliament of Canada Act, RS.C. 1985, c. P-1, s. 52.3 Beauchesne, 4th ed., p. 329; Bourinot, 4th ed., p. 192. An obvious exception occurred in 1912 when a Royal Commission (P.C. 870) was appointed under the Inquiries Act to investigate and report upon the workings of the Law Branch of the House of Commons; see also infra. Bradlaugh u. Gossett (1884), 12 Q.B.D. 271; See also Soth v. Ontario (The Speaker of the Legislative Assembly) (1997), 32 O.R (3d) 440.

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neither House is subject to the control of the courts in their administration of that part of the statute law relating to its own internal proceedings.30 Either House may change its rules that are not set out in the Constitution. Otherwise, its interpretation of rules for proceedings in the House set out in legislation or its own Standing Orders is not subject to appea1.31 Accordingly, a sitting day does not go by without one or more Standing Orders or rules of the House of Commons being put aside temporarily by unanimous consent. As expressed by the court in Bradlaugh v. Gossett: "The House of Commons has the exclusive power of interpreting the statute, so far as the regulation of its own proceedings within its own walls is concerned; and that, even if that interpretation should be erroneous, the Court has no power to interfere with it directly or indirectly."32 The jurisdiction of the House over its own internal concerns is like that of a court "whose jurisdiction is not subject to appeal."33

Internal proceedings House has sole jurisdiction to determine rights exercised within the House or its committees The House has sole jurisdiction to determine a right to be exercised within the House or within a committee of the House. Thus, the House has, notwithstanding the election of a Member, the right to discipline, to expe1,34 and to suspend the Member,35 and the right through the committee itself to fix the procedure within the committee, including the role of counsel acting for witnesses. The House of Commons or Senate could not, however, without judicial scrutiny, suffer an interpretation, for example, of a resolution for the continuation of a House of Commons for more than five years where such resolution was opposed by the votes of more than one-third of the Members of the House. While it relates to the construction of the statute in its internal proceedings, the statute forms part of the written 30 31 32 33 34

35

Ibid., at 278. But see Harnett v. Crick, [1908] A.C. 470 (P.C.) at 475-6. Ibid., p. 280-81; but see infra, this chapter and Chapter 13, Internal Proceedings, regarding the issue of how the courts view this privilege, note 28. Supra, note 28, p. 285. See the expulsion of Louis Riel, Journals (1874), p. 8, 10, 13, 14, 17, 18, 32, 37, 38, 67, 71, 74. The next year he was declared an outlaw by the House and a new writ for Provencher was ordered by the House; Journals (1875); Fred Rose (1947), Journals (January 30, 1947); Thomas McGreevy Journals (1892), p. 234-5. Some examples of this can be found in the followingJournals: May 25,1956; February 10, 1961; May 16, 1978; March 21, 1979.

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Constitution and clearly sets out manner and form provisions. Similar considerations would apply where a quorum was absent for a recorded division on a bill. The courts both in Canada36 and in the U.K.37 have been heretofore reluctant to intervene where it is alleged that the proper statutory procedure was not followed, or that a mistake had been made.38 This relates to the "enrolled bill" rule or principle that states that the parliamentary roll is conclusive: an Act passed by Parliament and enrolled must be accepted as valid on its face and cannot be challenged in the courts on grounds of procedural irregularity.38 However, entrenched manner and form provisions have now been successfully challenged. There now is an exception to the rule that only the legislative body has jurisdiction relating to its internal proceedings. If there is a constitutional norm that is sufficiently precise, it is potentially justiciable. The Supreme Court of Canada has recently ruled invalid laws that were not adopted in conformity with a mandatory manner and form requirement set out in the Constitution. In Reference Re Language Rights in Manitoba° the court had to consider the effect, on virtually all laws of Manitoba passed since it joined Confederation, of the failure to comply with the entrenched requirements of s. 23 of the Manitoba Act, 187041 — that both English and French "shall" be used in the records and journals of the Legislature and that all Acts "shall be printed and published in both languages." The court held all such laws to be invalid because of the failure to use the French language in records, journals, and enactments. It is said that "the courts might be effective in ensuring the observance of procedural requirements imposed by the constitution with respect to the enactment of legislation. For example, s. 48 of the Constitution Act, 1867, specifies the quorum required in the House of Commons, s. 49 the nature of the majority required to decide questions, s. 36

37

38

39

40 41

Drewery v. Century City Dev. Ltd. (No. 1) (1975), 6 O.R. (2d) 288 (H.C.); R. v. Irwin, [1926] Ex. C.R. 127; Gallant v. R., [1949] 2 D.L.R. 425 (RE.I. S.C.); Reference Re Agricultural Products Marketing Act, [1978] 2 S.C.R. 1198, 84 D.L.R. (3d) at 278-9, 321-2; Turner u. the Queen et at (1992), 93 D.L.R. (4th) 628 (Federal Court of Appeal). Proprietors of Edinburgh Dallzeith Ry. Co. v. John Wanchope (1835), 8 Cl. & Fin. 710, 8 E.R. 279; Lee v. Buck and Torrington Junction Ry. Co. (1871), L.R. 6 C.p. 576 (Common Pleas); Br: Rys. Bd. u. Pickin, [1974] A.C. 765, rev'g [1973] 1 Q.B. 219 (H.L.). In Australia see Namoi Shire Council u. A.G. IV.S.W., [1980] 2 N.S.W.L.R. 639. Labrador Company and the Queen, [1893] A.C. 104. See the extensive review of this subject in K. Swinton, "Challenging the Validity of an Act of Parliament: The Effect of Enrolment and Parliamentary Privilege" (1976), 14 Osgoode Hall L.J. 345; see also Wm. E. Conklin, "Pickin and its applicability to Canada" (1975), 25 U.T.L.J. 193. [1985] 1 S.C.R 721. R.S.C. 1970, App. II, confirmed by 34 & 35 Victoria, 28 (UK.). This is contained in the Schedule to the Constitution Act, 1867.

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53 and 54 the procedure for the introduction of money bills, and s. 55 the necessity for royal assent. Section 90 makes several of these provisions equally applicable in provincial legislatures. It was at one time thought to be an element of parliamentary sovereignty that statutes could not be judicially challenged on procedural grounds. Any judicial investigation of such matters was thought to be an invasion of parliamentary privilege. The better view would now appear to be that a court can refuse to give effect to legislation enacted by an improper procedure, that is, not in accordance with predetermined procedural requirements. Courts in other parts of the Commonwealth have been prepared to review legislation on such ground."42 It may be noted that the provisions of the Constitution respecting the observance of procedural requirements are not entrenched and thus are amendable, directly or indirectly, by the Parliament of Canada alone, but not by only one of the Houses of Parliament.

The right to provide for its proper constitution It is under the right of the House of Commons to provide for its proper constitution that the House may expel a Member (see infra this chapter) and that the Speaker addresses his warrant for the issue of a writ for the election of a Member whenever a seat becomes vacant. Thus, while s.17 of the Parliament of Canada Act may disqualify a Member, that Act does not spell out how the machinery to elect a new Member starts. It is by the address of a warrant for the issue of a writ to the Chief Electoral Officer, which the Speaker may only do if the House so orders. On the other hand, when the Parliament of Canada Act refers to vacancies arising from the death of any Member or from any Member accepting an office, the same Act goes on to stipulate that the Speaker shall forthwith address his warrant to the Chief Electoral Officer for the issue of a new writ for the election of a Member. Similarly, under s. 69 of the Dominion Controverted Elections Act,43 the Speaker will, forthwith upon receiving the judge's report that an election is void, and without a motion and order of the House, address his warrant to the Chief Electoral Officer for the issue of a new writ of election for the electoral district in question.44

The right to determine whether Members of the House of Commons are qualified to sit and vote This right to provide for its proper constitution also includes the right to determine whether Members of the House of Commons are 42 43 44

Barry L. Stayer, The Canadian. Constitution and the Courts, the Function and Scope of Judicial Review, 3rd ed., (Toronto: Butterworths, 1988), p. 222 and authorities cited. R.S.C. (1985), c. C-39. See Journals (1968-69), p. 706, for an example.

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qualified to sit and vote,45 with the concomitant right to expel, though not the right to determine whether they are duly elected. In 1950, the U.K. House referred the case of MacManaway, a priest of the Church of Ireland, to committee to determine whether he was disqualified by the House of Commons (Clergy Disqualification Act 1801). The committee was unable to reach a decision,46 and the matter was referred to the Judicial Committee of the Privy Council, which reported that MacManaway was disabled from sitting and voting.47 The House agreed with this report on October 19,1950, and on November 8, 1950, thereupon ordered a warrant to be addressed to issue a new writ. The Canada Elections Act provides for the election of the Member, but when duly elected, the House alone is the body to determine whether a Member shall remain a Member.48 Thus, although a Member may be convicted of something as serious as a treason-related offence, or even sentenced to five years or more upon conviction of any indictable offence,49 a formal resolution of the House is still required to formally unseat him, at which moment the Speaker may not yet address his warrant for the issue of a writ for the election of a Member to fill that vacancy without an order of the House of Commons to that effect.50 A fortiori, conviction for a less serious offence is not an assurance that the Member will be unseated. It still remains the decision of the House itself and it is probable that, before the House expels a Member, all

45 Journals, March 1, 1966, p. 203-4, where the Speaker said that the right of the

Member for Montmagny-L'Islet to vote subsequent to the date when he should have paid his election expenses was a proper subject of privilege, but that the House must decide that issue, and whether his votes should be disallowed. The Member who raised the matter did not move the usual motion to refer it to the committee and no further proceedings were taken. 46 H.C. 68 (1950) (U.K.) 47 [1951] A.C. 161 (PC.). 49 This right was recognized by Lord Coleridge in Bradlaugh u. Gossett at p. 275, when he said, "The jurisdiction of the House over their own Members, their right to impose discipline within their walls, is absolute and exclusive." 49 Fred Rose, M.P., Journals, January 30, 1947, p. 8. 99 Ibid. The motion to unseat Rose was combined with an order to the Speaker to issue his warrant; see also the letter of the Speaker of the Legislative Assembly of Manitoba of December 4, 1980, to a Member of the Legislative Assembly with a copy to officers and Members of the Assembly advising that one of its Members, having been convicted under the Criminal Code and sentenced to seven years' imprisonment by reason of s. 682 of the Code, is incapable of sitting or voting as a Member of the legislature and that the disability would be removed if the conviction is set aside by a competent authority. The Manitoba Legislature in effect expelled the Member when it formally ordered the Member "to withdraw from the Chamber and remain outside the Chamber until a competent authority set aside his conviction" (December 16, 1980); see also note 52 infra.

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avenues of appeal will have been exhausted and the crime of which the Member was convicted will be one involving serious moral turpitude. A Member's right to sit may nevertheless be affected by a decision of the courts. Where in a reference to the court on the recommendation of a committee of the House the court finds that a Member is disqualified and ineligible to sit and vote, the House of Parliament of Canada would probably follow the U.K. practice and unseat the Member.51 Because of the particular wording of s. 748 of the Criminal Code, it probably does not apply to a person who is convicted while he is a Member.52 In the final analysis, the House of Commons may exclude, suspend, or expel a Member for any reason,53 because it is an internal matter. What is clear is that the ordinary civil and criminal jurisdiction of the courts does not extend to determining the rights of Members to sit in the House, and the courts equally have nothing to do with questions affecting its membership except in so far as they have been specially designated by U.K. Journals, November 22, 1912; December 12, 1912; January 31, 1913; April 21, 1913 —Re Samuel, [1913] A.C. 514 (P.C.); there was also a successful action for a penalty brought against the Member by a common informer (Forbes v. Samuel, (1913] 3 K.B. 706); what is not clear is whether the U.K. House of Commons would have taken the same action on the strength only of the outcome of the informer action (i.e. a person suing to claim a statutory penalty) of Forbes v. Samuel where that court arrived at the same conclusion. In Barnard v. Walkem (1880), 1 B.C. R. Pt. 1, 120, the British Columbia Court of Appeal in an application for an injunction under the Independence of Parliament Act, 1875, S.B.C. 1875, c. 9, to restrain a Member of the Legislative Assembly from sitting and voting in the Legislative Assembly held that the acceptance of employment as counsel with the federal government was an infringement of the provisions of the Act, yet exercised their discretion and refused the injunction. The B.C. Act prohibited employment with the federal government and the court could restrain the Member from sitting and voting. 52 Tremeear'sAnnotated Criminal Code, 6th ed., editor L.J.Ryan (Toronto: The Carswell Co. Ltd., 1964), p. 1218 notes that "it is doubtful whether or not this section would be considered ancillary to the power to legislate upon criminal law. It undoubtedly trenches upon property and civil rights, and its validity is at least open to question, as far as it concerns the Crown in right of a province". However, in order for the penalty under subs. 748(2) to apply, the provisions of subs. (1) would have to be met, i.e. the status of a Member of Parliament or of a legislature would have to be considered to be "other public employment", which arguably, is unlikely (see also note 54 infra, particularly Tolfree v. Clark). See also Gordon Mackintosh, The Right of Legislatures to Expel Members: A Manitoba Case Study (1981-82), 4 Canadian Parliamentary Review 18. See further McWhinney, Edward, Forfeiture of Office on Conviction of an "Infamous Crime" (1989), 12 Canadian Parliamentary Review 2. 53 Bourinot, 4th ed. (1916), p. 64; Beauchesne, 5th ed . (1978), p. 16; McLean v. AG. Nova Scotia, [1987] 35 D.L.R. 4th 306 at 315. See also Gabias c. Assemblee legislative de la province du Quebec, Casgrain J., Cour superieure district de Quebec, No. 138495, May 3, 1965. The House of Representatives of the US. Congress, however, has no power to exlude from its membership any person who was duly elected by his constituents and who met the age, citizenship, and other requirements specified in the Constitution (Powell v. McCormack (1969), 23 L. U.S.S.C. Ed. (2d), 491); Halsbury, para. 1117. The Houses of Parliament in Australia no longer possess the power to expel Members (Parliamentary Privileges Act, 1987, s. 8). 51

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law to act in such matters as, for example, under the Dominion Controverted Elections Act.54 An interesting manifestation of this power of the House occurred in 1965, when it referred an allegation of illegal election practices to the Chief Electoral Officer.55 The Senate As regards the Senate, s. 33 of the Constitution Act, 1867 provides, "If any question arises respecting the qualification of a senator or a vacancy in the Senate the same shall be heard and determined by the Senate." In other words, s. 31 of the Constitution Act, 1867,56 which sets out the disqualification of senators, is interpreted by the Senate and not elsewhere.

The right to institute inquiries and to require the attendance of witnesses and the production of documents57 The right to institute inquiries is part of the lex parliamenti, which is included in the "privileges, immunities, and powers" expressed in s. 4 of the Parliament of Canada Act and referred to in s. 18 of the Constitution Act, 1867. 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 jurisdiction.58 This right has extraordinary implications. It was invoked with impunity in 1689 when the judges in Jay v. Topham59 were called to the Bar of the House and taken into custody for failing to uphold the plea of the Sergeant-at-Arms that the court had no jurisdiction in the matter. It was also invoked in Newfoundland in 1838 in Kielley v. Carson. It also enabled the House of Commons of Canada to require the attendance of a 54

55 56 57 58 59

McLeod v. Noble (1897), 28 O.R. 528; R. ex ref. Tolfree v. Clark, [1943] O.R. 501 (CA); R. ex rel. Stubbs u. Steinkopf (1964), 47 D.L.R. (2d) 105 (Man. Q.B.); Lamb v. McLeod (No. 1), [1932] 1 W.W.R. 206; Re Jackman and Stollery (1980), 28 O.R. (2d) 641. See also R. ex rel Stubbs u. Steinkopf (1964), 50 W.W.R. 643 (Man. C.A.), Temple v. Bulmer, [1943] S.C.R. 265. Debates, October 24, 1965, p. 9004-5; see infra, Chapter 12, text at note 70. See Appendix. See also Chapter 12. Bourinot, 4th ed., p. 70. See infra, Chapter 13.

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lawyer in order to question him about words spoken elsewhere in a judicial proceeding.6° A committee is not restricted in the scope of questions it can pose and a witness must answer all questions put to him, subject only to a point of order by a member of the committee that the question should not be permitted, and with an ultimate appeal of the chairman's ruling to the committee. As part of the "grand inquest of the nation," the committee is free from adherence to rules of evidence such as the hearsay rule, the requirement of relevance, and the rules of natural justice. Rather, it is governed by considerations of public policy Furthermore, the ordinary courts offer no protection or assistance to a witness.61 Also, by convention, one House will not summon a Member of the other House to attend its proceedings as a witness or otherwise. With respect to federal public servants who are witnesses before committees of either House, the theory of the compellability of witnesses to answer questions generally may come in conflict with the principle of ministerial responsibility. By convention, a parliamentary committee will respect Crown privilege when invoked, at least in relation to matters of national and public security.62 In the final analysis, witnesses must rely on the collective common sense of the members of the committee and their good graces.

The right to administer oaths to witnesses The right to administer oaths was never part of the lex parliamenti. It became part of the law of the U.K. in 1871. The right of the Houses of Parliament of Canada to administer oaths to witnesses became part of the law of Canada in 1875 by the U.K. Parliament of Canada Act63 when s. 18 of the Constitution Act, 1867 was amended to provide that the Canadian Parliament could legislate privileges currently held by the U.K. House of Commons rather than privileges that that House held in 1867. so Case of Choquette, Journals (1974-75-76), p. 521, 1275-7. Quaere: what of the immunity provided for those engaged in court proceedings? 61 However, if a witness in privilege matters is considered by the court to be "charged" with an offence (Charter, s. 11(c)) or if that person's right to liberty or security is impaired (Charter, s. 7), the committee's power over that witness may be challenged. (See infra, Chapter 14). 62 See also Presentation of General Legal Counsel of the House of Commons to the Standing Joint Committee on the Scrutiny of Regulation on the Powers of Parliamentary Committees, on November 17, 1994. 63 38 & 39 Victoria, c. 38 (U.K).

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Earlier, in 1868, the Parliament of Canada had passed an Act giving select committees on private bills of both Houses the right to examine witnesses on oath and the Senate the right to examine witnesses at the Bar of the House on oath." In 1873, another Act was passed extending this right to any committee of either House.65 However, both of these Acts were declared ultra vires66 and disallowed67 because s. 18 of the Constitution Act, 1867 as originally enacted restricted privileges to those held in 1867 by the U.K. House of Commons, and the U.K. House of Commons did not legislate this right to administer oaths until 1871. The 1875 U.K. Act amending s. 18 to remove its restriction to the rights of the U.K. House held in 1867 also provided that the Act of the Canadian Parliament of 186868 be deemed to be valid retroactively to the date of its royal assent. Then, in 1876,69 the Canadian Parliament re-enacted the 1873 Act, and finally, in 1894, the right to examine on oath witnesses at the Bar of either House and their committees was legislated." This right is now contained in section 10 of the Parliament of Canada Act, and s. 12 of that Act provides that any person who wilfully gives false evidence under the circumstances described therein is liable to the penalties for perjury.71 Furthermore, "a witness once summoned by a parliamentary committee would be ill-advised to walk out because of an unwillingness to be sworn."72

The right to publish material containing defamatory matter The authority to publish any "report, paper, votes or proceedings" is set out in the Parliament of Canada Act, s. 7, 8, and 9, and is examined in detail in Chapters 3 and 4. It had its beginnings in the Parliamentary Papers Act, 1840 (U.K.).

64 S. C., 1868, 31 Victoria, c. 24. ss S. C., 36 Victoria, c. 1. It was prompted by the "Pacific Scandal." 66 Bourinot, 4th ed., p. 485-6. 67 Ibid. 68 Supra, note 63. 69 S.C., 39 Victoria, c. 7. 70 S.C., 57-58 Victoria, c. 16. 71 This makes it abundantly clear that any person may be prosecuted under provisions of the Criminal Code for committing perjury while speaking under oath during a proceeding in Parliament, notwithstanding the Bill of Rights, 1689; see also Chapter 8. 72 Debates, March 17, 1987, p. 4265.

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The penal power: the right to commit for contempt or breach of privilege The right of the Senate and of the House of Commons to commit for contempt is the keystone of parliamentary privilege. It is of course the penal jurisdiction of the Houses of Parliament: the power to inflict punishment for contempt. The penal power is the power of both Houses to punish Members and non-Members for disorderly and disrespectful acts. It has much in common with the authority inherent in the superior courts "to prevent or punish conduct which tends to obstruct, prejudice or abuse them" while in the exercise of their responsibilities. By this means, the two Houses are enabled to safeguard and enforce their necessary authority without the compromise or delay to which recourse to the ordinary courts would give rise. The act or omission that attracts the penal jurisdiction of either House may be committed in the face of the House or a committee, within the precincts or outside it. Nor is it necessary that there should have been a breach of one of the privileges enjoyed, collectively or individually, by either House: anything done or omitted that may fall within the definition of contempt (see Chapter 2), even if there is no precedent, may be punished.73

Not confined to Members The penal jurisdiction of the House is not confined to its own Members. Nor is it confined to offences committed in the immediate presence of the House by its Members; it is extended to all contempts of the House, whether committed by a Member or by persons who are not Members and whether or not the offence constituting the contempt was committed within the House or beyond its walls. It will be recalled that the fact of serving a subpoena upon a Member within the precincts while the House is sitting could in itself be a contempt.74 Generally speaking, any act or omission that obstructs or impedes either House of Parliament in the performance of its functions, or that obstructs or impedes any Member or officer of such House in the discharge of his duty, or that 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. It is therefore impossible to list every act that might be

73 74

May, 21st ed., p. 103. See Chapter 10.

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considered to amount to a contempt, the power to punish for such an offence being of its nature discretionary.75 In 1978 the House of Commons (U.K.) resolved to exercise its penal jurisdiction as sparingly as possible, and only when satisfied that it was essential to do so. (May, 21st ed., p. 135).

Not confined to acts on precincts Since the sittings of a committee of either House held in Vancouver, for example, would be a "proceeding" of Parliament, the full weight of parliamentary privilege would apply. Accordingly, should disruptions occur, while the Sergeant-at-Arms would have none of the authority beyond that which he exercises within the precincts, the committee could report the disruption to the House and the House could take action by virtue of its penal jurisdiction.76 While the contempt authority of the House of Commons prevails in the case of obstruction of committee hearings beyond the precincts but in Canada (i.e. it could report to the House of Commons and the House could take action), the jurisdiction of the Sergeant-at-Arms who maintains order in the precincts under the authority of the Speaker does not extend to committees sitting beyond the precincts of Parliament. That is, the deliberations of the committee are "legal," but unlike a court, it cannot impose its authority to maintain order because it is outside the are ordinarily occupied by the Houses of Parliament for their corporate purposes, i.e. the "precincts." The power of the House to vindicate its authority by the power to commit to prison enables the House to punish a person for any act, omission, or attempt that the House resolves to be a contempt. Therefore, while arresting a Member for having failed to pay a civil judgment is an obvious breach of the privilege of freedom from arrest, the not-so-obvious contempt of intimidating a Member in his parliamentary capacity can be met with the same disposition. The power to punish for contempt is in its nature discretionary, and in general terms, any act or omission that obstructs or impedes the House in the performance of its functions or obstructs or impedes any Member or officer of the House in the discharge of his parliamentary duty, or that has a tendency directly or indirectly to produce such a result, may be treated 75

76

See note 71. H.C. 308 (1968-69), p. 94-5 (U.K.). When the proceedings of the Commons Committee on Human Resources Development were disrupted in Montreal on December 6, 1994, which was widely reported in the news of the day, the Committee did not see fit to so report.

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as a contempt. The power possessed by the House of Commons is a general power of committing for contempt analogous to that possessed by superior courts. Thus, it is not restricted to cases in which the privileges enjoyed by the House, in its collective capacity or by its Members as such, have been violated, "lest a contrary inference should be drawn from the fact that in recent years [in the United Kingdom] all the offences that have been punished by either House have been adjudged to be breaches of privilege."77 The author goes on to say: An examination of the cases in question shows that in the majority of

them there was no actual infringement of any parliamentary privilege though in many the exercise of one of those powers of the Houses collectively which are also termed privileges had been obstructed or impeded, while others again merely tended to obstruct either House or individual Members of a House in the exercise of their constitutional functions. Such offences were formerly designated contempts, but have long been termed "breaches ofprivilege," though that term is properly applicable only to that type of contempt which consists in the violation or disregard of privileges of either House or the individual Members thereof.

Chapter 12 will set out the procedure and examples of acts, omissions, or words that have in the past constituted contempt of the House of Commons.

In the U.K. Parliament, up to the time of the Tudors, was not thought of primarily as a legislature; it was still in reality "the High Court of Parliament" and that court then retained the varied functions of the old Curia, as Parliament now does, but the judicial functions overshadowed the legislative. Parliament still seemed primarily a law-declaring machine;78 it was called together in those times not only for the purposes of legislation or taxation, but so that the complaints of the Commonwealth or of individuals might be discussed and heard. It was the King's great and extraordinary court of justice, in which he was to grant redress when the ordinary tribunals were unable or unwilling to grant relief. When the common law became inefficient, the supreme remedial jurisdiction was vested in the High Court of Parliament. Here the people were invited to resort for the redress of all injuries and oppressions not cognizable elsewhere; and the inability of the petitioner to sue at common law, or to obtain a fair trial by jury according to the ordinary process, was the most common allegation in the petitions.79 77 May, 19th ed., p. 116. 78 C.M. Mellwain, The High Court of Parliament and Its Supremacy (New Haven: Yale University Press, 1910), p. 109-10. 79 Ibid., at p. 117-8.

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However, rather than looking at Parliament as a court of justice in the modern sense, it is the fusion of indefinite powers that is the most fundamental fact of that central institution in England in the Middle Ages. The King's Council, Curia Regis, began as an assembly of Lords sitting with the King and enjoying the King's peace. In 1254, as a result of the Lords' reluctance to take the responsibility for raising the supplies demanded by the King, two knights from each county were summoned to Parliament; and in 1265 there also came two citizens from each city and two burgesses from each borough. Again, this assembly enjoyed the King's peace, i.e. privilege. The Model Parliament of Edward I (1295) was the most fully representative up to that time and it too, as High Court of Parliament and King's Council, along with its individual Members, enjoyed the King's peace. Thus, the power of the House of Commons in the U.K. to commit for contempt stems from the House of Commons having been part of the King's High Court of Parliament, the King's Council or the Curia Regis, which had a judicial function fused with a legislative function. When the House of Commons emerged as a separate body in the mid-fourteenth century, it started to assert powers which hitherto it had only as a constituent element of the High Court of Parliament. Eventually, the House of Commons was considered to have such a power as part of its authority and no longer had to depend on the House of Lords' judicial function for confirmation of the authority. Following the separation of the two Houses of Parliament, the House of Commons was dependent upon the protection of the House of Lords for its privileges. This is manifested by one of the earlier cases of privilege, Thorpe's case of 1452,80 when the Lords, acting on the advice of the judges, resolved that Thorpe, the Speaker of the House of Commons, should remain in prison notwithstanding any privilege of Parliament, to which the House of Commons acquiesced, proceeding to elect a new Speaker.81 The Commons alone never claimed any privilege until 1543 in Ferrers' case,82 although during the brief tenure of Speaker Sir Thomas More in 1523, the Speaker did claim before the King freedom of speech for Members in debate.

80 81 82

(1452), 5 Rot. Parl. 239. May, 19th ed., p. 71, 95. Hatsell, vol. 1, p. 53. Ferrers, a Member of the House of Commons, was arrested in civil process and the House ordered the Sergeant-at-Arms to have him released. The sheriff protected the officials holding Ferrers and when the Sergeant-at-Arms returned without Ferrers, the House of Commons laid their case before the House of Lords. The latter judged that the House of Commons should deal with the matter. Thereupon, the House of Commons committed all concerned for the contempt in refusing the earlier order being carried out by the Sergeant-at-Arms.

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The reason why the House of Lords should oversee the privileges of the House of Commons at the time and, eventually why the Commons may act on its own, is set out by May:83 Of this court [the High Court of Parliament] the Lords were, with the barons of the Exchequer and the judges of the two benches, original members in virtue of their membership of the more ancient Curia Regis. The House of Lords therefore possessed the power of commitment by at least as good a title as any court of Westminster Hall. But the Commons, "newcomers to Parliament" within the time of judicial memory, could not claim the power on grounds of immemorial antiquity. As late as 1399 they had recorded their protest that they were not sharers in the judgments of Parliament, but only petitioners. The possession of the right by the Commons was challenged on this ground, and was defended by arguments which confounded legislative with judicial jurisdiction. It was probably owing to the medieval inability to conceive of a constitutional authority otherwise than as in some sense a court of justice that the Commons succeeded in asserting their right to commit offenders on the same terms as the Lords. In any case, they are found freely exercising this right from the beginning of Elizabeth's reign (1558), and even earlier in Ferrers' case (1543). It is calculated that over a thousand instances of its exercise up to the middle of the nineteenth century are to be collected from the Journals. The courts of law have recognized this power of commitment of the British House of Commons from the early eighteenth century." Furthermore, while the Habeas Corpus Act of 1678-7985 is binding on all persons, thus making it competent for the judges to have before them persons committed by either House of Parliament for contempt, when the form of the warrant of committal is general (i.e. does not set out the causes), the courts are not competent to inquire further into the nature of the contempts, and the parties committed for contempt cannot be admitted to bail .88

In Canada At the outset during the period in which there was an elected or appointed "local legislature" (referred to by the Judicial Committee of the Privy Council in Kielley u. Carson and to which a limited power was inherent) established either by royal letters patent or by statute, such local legislatures were not vested with all of the rights, immunities and 83

May, 19th ed., p. 118-9. HaLsbury, 4th ed., vol. 34, p. 607; R. a Paty (1704), 2 Ld. Raym. 1105. 31 C. 2, c. 2 (U.K.). Se See May, 19th ed., p. 120-3 and cases referred to there, particularly Burdett v. Abbot (1811), 14 East 1 at 150; Anson, vol. 1, p. 188-9.

s4 as

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privileges held and enjoyed by the House of Commons in the U.K. unless they were expressly granted by statute. However, until Kielley v. Carson in 1842 most of the local legislatures did grant to themselves all of these powers that were frequently concurred in by the courts. The extraordinary powers of the U.K. Commons were derived from the lex parliamenti, i.e. the ancient usage and prescription carried over from the High Court of Parliament. It was submitted by the successful appellant in Kielley v. Carson before the Privy Council that the Crown could not grant it by letters patent because it did not have it to bestow.87 Thus, it will be seen that to grant such rights, immunities, and privileges to the Canadian House of Commons and Senate, it was absolutely necessary to grant them by statute expressly. Section 18 of the Constitution Act, 1867 does this very thing.88 From the beginning in Lower Canada, the Speaker claimed for the Members of the assembly the same privileges held by the U.K. House of Commons,89 whereas in Upper Canada, the speaker merely claimed the privilege of freedom of speech in debate and freedom from arrest.99 On the other hand, the Legislature of the Province of Canada claimed, through the Speaker, and was granted by the Governor General, "their constitutional privileges."91

n Nova Scotia House of Assembly, 1758, 1829 In 1758, on December 14, the Nova Scotia House of Assembly had arrested and briefly confined Mr. Archibald Hinshelwood, the Deputy Secretary of the province for using "very threatening and scandalous words against a Member," Mr. Pantree. He was set at liberty after he signed a written apology in terms prescribed by the House.92 In 1829, that same Assembly expelled a Member, John A. Barry; and later, when Mr. Barry published a letter in which he referred to the committee of Privilege as a "privileged committee," the House ordered him imprisoned for the remainder of the session. (Journals, House of Assembly, Nova Scotia, Feb. 26, April 4, Apri111, April 13, 1829.) On April 14, 1829, the same Assembly committed another person for aiding and abetting in the temporary rescue of Mr. Barry from the custody of the Sergeant-at-Arms. 87 88 89 90 91 92

Kielley u. Carson (1842), 4 Moo. P.C.C. 63 at 68. See Appendix. Journals, Lower Canada (1792), p. 16. Journals, House of Assembly of Upper Canada, September 18, 1792, p. 5. Journals of the Legislative Assembly of the Province of Canada, June 15, 1841, p. 3. Beamish Murdoch, Q.C., A History of Nova Scotia or Acadia (Halifax, N.S.: James Barnes, 1866), vol. II, p. 354.

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n Lower Canada Legislature, 1794 The Legislature of Lower Canada, as early as 1794, committed to the custody of the Sergeant-at-Arms a litigant who caused a Member of the legislature to be arrested in a civil process.93 The bailiff and the sheriff were also committed to the custody of the Sergeant-at-Arms, and all apologized to the House from the Bar. It was an unusual case because the Speaker, Panet, was also held in contempt by the House for having been the lawyer for the plaintiff who attended to obtaining the arrest of the Member.94

nUpper Canada Legislature, 1812 Similarly, in Upper Canada in 1812, the Commons House of Assembly found the Master in Chancery95 in contempt for having been the lawyer responsible for the party who attended to obtaining the civil arrest of a Member of the Assembly (notwithstanding that the Deputy Sheriff had told the Master that the Member was privileged from arrest) 96

nOpinion of law officers of the Crown, 1815 The Constitutional Act, 1791 (U.K.), establishing Upper and Lower Canada97 and representative government, simply provided for making laws for the "peace, welfare and good government," which was interpreted by the law officers of the Crown in England that the "Members of the Assembly of Canada [the opinion related to Lower Canada but would apply equally to Upper Canada] entitled to such privileges as are incidental to, and necessary to enable them to perform, their functions in deliberating and advising upon, and consenting to laws for the peace, welfare and good Government of the Province. "98 The opinion went on to state that the assembly is not entitled to all the privileges to which the House of Commons of the Imperial Parliament are entitled under their own peculiar law, the lex parliamenti, because "such powers cannot belong to them as incident to their Creation and Constitution." The powers of the assembly are. 93 94 95 96

97 98

Journals, Lower Canada, January 10, 1794, p. 102. Ibid., January 8, 1794, p. 92. The organ of communication between the Legislative Council and the House of Assembly Journals, House of Assembly of Upper Canada, February 11, 1812, p. 17, 19. The Council thereupon dismissed him (p. 26) and then restored him to his post, at the request of the Assembly, having been satisified with the gesture (p. 24, 28). 31 Geo. 3, c. 31 (U.K.). See W.PM. Kennedy, p. 297.

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confined to such only as are directly and indispensably necessary to enable them to perform the functions with which they are invested, and therefore may be fairly said to be incidental to their constitution. We mention some of these examples;...freedom from arrest, in civil Cases; a power to commit for such Acts of contempt in the face of the House of Assembly as produce disturbance and interruption of their proceedings, the freedom of debate upon the subjects of the Laws to be enacted and considered;...the power of expelling a Member convicted by any competent Tribunal of a crime of an infamous nature...The right of regulating and ordering their own proceedings in their assembly consistently with the Statute....99

n McNab v. Bidwell (1830) (Upper Canada) In 1830, in McNab v. Bidwell, the Supreme Court of Upper Canada held that House of Assembly had the constitutional right to commit persons to jail for contempt for not answering questions. About the same time in the U.S.A., the Supreme Court of the United States, following Burdett v. Abbot 100 in respect of the lex et consuetudo parliamenti, held that the House of Representatives had by necessary implication a general power of punishing and committing for contempt.101 This was reversed in 1880102 because the U.S. Supreme Court found that the U.K. Parliament's power to punish contempt derived not from its status as a representative body but "by virtue of ancient usage and prescription."

n Re Tracey and Duvernay (1832) (Lower Canada) The same situation arose in Lower Canada in 1832 in the case of Daniel Traceyl03 when the Legislative Council was found by the court to have the right to commit for breach of privilege in cases of libel. In both instances, the courts relied heavily upon Burdett v. Abbot, which dealt with the authority of the U.K. House of Commons to commit without the necessity of setting forth the grounds for committal on the Speaker's warrant. Accordingly, Tracey and Duvernay were not released on habeas corpus. While the Union Act of 1840 announced the beginnings of responsible government in Canada, it made little change on the privileges 99 100 101 102

103

See W.P.M. Kennedy, p. 298-9 Supra, note 84. Anderson u. Dunn (1821), 6 Wheaton 204. Kilbourn u. Thompson (1880), 103 U.S. 168. The court held that Congress does not have an inherent power to punish for contempt. But see Lawrence H. Tribe, American Constitutional Law, 2nd ed. (New York: The Foundation Press, 1988), p. 375-8. Re Tracey (1832), Stuart's Reports, L.C.K.B. 478.

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for the new legislature of the new Province of Canada. There was granted the same authority to pass laws for the peace, welfare, and good government of the province, and all the powers necessary for the legislature to carry on its legislative program were accorded, i.e. freedom from civil arrest and freedom of speech, along with the power to maintain order, including the authority to expel and the right to remove for such acts of contempt in the face of the assembly that disturb and interrupt its proceedings; but not the power to commit for these same acts, which is a judicial power that the House of Commons has only by virtue of having been part of the High Court of Parliamentl" and which, in the absence of any usage and custom,105 may descend only by express grant.

nKielley v. Carson (1842) (Nfld.) The language is much the same language used by the Judicial Committee of the Privy Council in Kielley v. Carson in 1842106 The issue in the case, which was from Newfoundland, a colony established by letters patent, was whether the power of committing for contempt not in the presence of the assembly is incidental to every local legislature. That tribunal replied that it was not. By so ruling, the Judicial Committee of the Privy Council overruled the earlier decision of Beaumont u. Barrett 107 that the Jamaica House of Assembly, also established by letters patent, had authority to find a newspaper publisher guilty of contempt for a libellous reflection and to commit him to prison. One of the defendants, while speaking in the House of Assembly, had uttered remarks about the management of the hospital in St. John's. Kielley, the district surgeon and manager of the hospital, reproached the defendant Member outside the Chamber, which amounted to a threat. The House of Assembly ultimately held Kielley in contempt and had him arrested. Kielley appeared at the Bar of the House, and rather than explaining his conduct, verbally attacked the same defendant. He was committed to the custody of the Sergeant-at-Arms. Later, when he appeared again before the Bar of the House of Assembly, he refused to apologize and was committed to jail. He was discharged by writ of habeas corpus and then sued the Speaker, Carson, and others for trespass and false imprisonment. The Supreme Court of Newfoundland found for the Speaker and the other defendants. The Judicial Committee, however, found that the assembly has only such powers as are reasonably necessary for the proper exercise of its 104 Doyle v. Falconer (1866), L.R. 1 P.C. 328 at 340, following Kielley v. Carson. Supra, note 103. 106 (1842), 4 Moo. P.C.C. 63. 107 (1836), 1 Moo. P.C. 59. 105

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functions and duties as a local legislature, and that the power of arrest with a view to adjudication on a contempt committed outside of the House is by no means essentially necessary for the exercise of its functions as a local legislature.138 (The court turned down the argument that Kielley disturbed the proceedings when he verbally abused the defendant while appearing at the Bar of the House — rather, the court noted that the original commitment was for the threat, which occurred outside the House.) This power to commit for contempt, whether the contempt took place inside, not resulting in interrupting the proceedings, or outside Parliament, is held by the U.K. House of Commons not because it is a representative body with legislative functions, but by virtue of ancient usage and prescription—the lex et consuetuclo parliamenti, which forms a part of the common law. Furthermore, the Newfoundland Assembly did not in 1842 possess such power as a legal incident: i.e. there is no imperial statute providing for such power. The Crown alone could not provide such power by commission or letters patent because it did not have it to give.139 The Judicial Committee further cut down the power of such legislatures in 1866 when, in Doyle v. Falconer, it held that the Legislative Assembly of Dominica, established by letters patent, does not possess the power of punishment of commitment for contempt, though committed in its presence and by one of its Members.110 The United Kingdom Parliament could by statute provide to the colonies the general power to commit, as it did in cases such as Dill v. Murphy (1864),111 where as a result, the Legislature of New South Wales held a newspaper publisher in contempt for libellous reflections and committed him to jail). 12

nEx parte Lavoie (1855) In ex parte Lavoie, in 1855,113 the House of Assembly of Canada committed a deputy returning officer for malfeasance. By statute,114 the House constituted itself a judicial body for the trial of controverted elections and was given powers of a superior court in matters touching the election of their own Members, including the power to commit. This was an exception to the general powers of the legislature. In normal circumstances, the legislature may maintain order by expelling a Member 108

109 110 111 112 113 114

Kielley v. Carson is followed in Fenton v. Hampton (1858), 11 Moo. P.C.C. 347,14 E.R. 727 (PC.) (Van Diemen's Land or Tasmania); Doyle v. Falconer (1866), 4 Moo. PC.C.N.S. 203, which involved the committal of a Member for contempt committed in the face of the Assembly; and Barton v. Taylor (1886), 11 App. Cas. 197. Supra, note 85. Supra, note 106. 1 Moo. PC.C.N.S. 487 (PC.). See also Victoria Legislative Assembly (Speaker) v. Glass (1871), L.R. 3 P.C. 560 (PC.). 5 Low. Can. R. 99. 12 Victoria, c. 27, and 14 & 15 Victoria, c. 1 and 12.

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and removing the public from its proceedings; however, the legislature does not have power to commit the Member, or a member of the public; but in this instance, the legislature was by statute acting as a court in respect of the election of its Members, and given authority to punish. The Assembly, however, could not, in the face of Kielley v. Carson, by act or otherwise confer upon itself power to commit for "contempt" or "breach of privilege" other than in the context of an infringement of the statute in respect of elections.

• 1867 to the present The Judicial Committee had made it clear115 that legislatures may have incidental powers necessary to fulfil their legislative role but such powers did not include the power to punish by committing to prison. This belonged to the House of Commons in the U.K. by virtue of long usage, custom, and lex parliamenti, because the House of Commons had been part of the High Court of Parliament. Such powers, however, could be given to a pre-Confederation legislature by Act of the U.K. Parliament, but not by the Crown alone (Documents, p. 298, Law Officers of the Crown). After 1867, and in fact by 1865, the Colonial Laws Validity Act provided authority to those colonial legislatures, and after Confederation, s. 92 of the Constitution Act, 1867 (now s. 45 of the Constitution Act, 1982, Part V) provided authority to the provincial legislatures to amend the Constitution and thus to legislate their privileges (Fielding u. Thomas, [1896] A.C. 600). Section 18 of the Constitution Act, 1867 does precisely this for the House of Commons and the Senate of Canada (see Chapter 2 and Appendix). Thus, there was conferred on the Parliament of Canada, at one fell swoop, the authority to vest in the House of Commons and in the Senate not only those powers necessarily incidental to a legislature, but the whole spectrum of powers conjured up by the lex et consuetudo parliamenti, including the keystone of parliamentary privilege: the power to commit. This authority was eventually invoked by the enactment of what are now s. 4 and 5 of the Parliament of Canada Act (see Chapter 2 and Appendix). Therefore, in addition to its other powers, the House of Commons and the Senate each have the power of commitment, which is part of the lex et consuetudo parliamenti. In 1869, both Ontario and Quebec passed Acts that gave their respective legislatures such privileges as are held by the Senate and House

115 Kielley

v. Carson, Doyle v. Falconer; etc.

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of Commons,116 and both were considered ultra vires by the English law officers and consequently disallowed by the governor-general in council n Subsequently, Acts were passed by both Ontario and Quebec that defined their privileges while not adopting those of the Senate and House of Commons,118 and remain more or less the present state of the enactment of privileges in these legislatures.

n Ex parte Cotte and Duvernay (February 9, 1875)119 The Quebec Assembly had ordered that Code and Duvernay be taken into custody by Speaker's general warrant, i.e. without setting out the causes of the detention. Code and Duvernay applied for habeas corpus. Ramsay J. found the Speaker's warrants to be illegal, and relying on Kielley v. Carson, which held that a colonial legislature did not have the powers of the U.K. House of Commons to convict, also held that the Act (1870, 33 Victoria c. 5), purporting to grant to the Assembly the power to summons a witness and to punish that witness if he fails to attend, is ultra vires.

n Ex parte Dansereau (February 17, 1875) 120 A majority of the Court of Queen's Bench, composed of five judges including the Chief Justice and Ramsay J. held that the Act (33 Vict. c. 5) granting to the Assembly the power to summons a witness and to punish that witness if he fails to attend, to be intra vires. The majority also found that the Assembly had the inherent power to summons witnesses and to punish them if they failed to obey an order of the Assembly. Accordingly, the majority denied the application for the writ of habeas corpus and did not release the applicant. Ramsay J., in dissent again, was of the view that the 1870 Act (33 Victoria c. 5) was ultra vires and would have discharged Dansereau.

n Ex parte Cotte and Duvernay (February 20, 1875)121 Following the decision of Feb. 9, 1875, Messrs. Cotte and Duvernay were arrested on the same Speaker's warrant. The full court of Queen's Bench discharged the two on the ground that a person cannot be arrested for a second time for the same cause or where no new or other cause of arrest is disclosed.

n Landers v. Woodworth (1878) Later, in 1878, the Supreme Court of Canada, in Landers v. Woodworth, a Nova Scotia case, held that in the absence of an express 116 117 118 119 120 121

Ontario: 32 Victoria, c. 3; Quebec: 32 Victoria, c. 4. Bourinot, 1st ed., p. 207. Ontario: 39 Victoria, c. 9; Quebec: 33 Victoria, c. 5. 19 L.C.J. 210 (Q.B.) at 212 to 219. 19 L.C.J. 210 (Q.B.) at 219 to 248. 19 L.C.J. 248 to 252.

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grant, i.e. any legislation defining privileges, on the authority of KielIey v. Carson, the provincial legislature had no power to remove one of its Members for contempt unless he is actually obstructing the business of the legislature. The court found that Woodworth was removed not because he was obstructing the business of the 'House but because he would not repeat the apology ordered, and therefore gave judgment for the Member, Woodworth.122 The court, however, said that the Nova Scotia Legislature had the competence to so legislate and it went on to encourage the legislatures to take the same course.123 In fact, the Nova Scotia Legislature did so while the appeal in the Landers case was pending124 and conferred upon itself and its Members such privileges as are held by the Senate and House of Commons. It was said that the court in Landers u. Woodworth recognized the possession in provincial legislatures of a wider discretion to legislate privileges than had been theretofore approved either by the federal government or the U.K. Crown law officers.125

n R. v. Bunting (1885) While the power of the House of Commons and the Senate to commit has not been directly tested since 1867, the Court of Appeal of Ontario, in 1885, pointed out that "the legislative assembly has the power to punish all parties concerned in any contempt committed against the rights and privileges of their body."126 The court there was dealing with a charge of conspiracy to bribe Members of the legislative assembly, and held that the legislative power to commit was independent but in no way exclusive of the criminal law of the land, which permits prosecution for the offence of bribery127

n Fielding v. Thomas (1896) Finally, in 1896, the Judicial Committee of the Privy Council confirmed in Fielding v. Thomas 128 that the Nova Scotia Legislature had the authority under s. 92(1) of the British North America Act, 1867 (now Constitution Act, 1867) to legislate its privileges, including the power to punish for contempt. Accordingly, the Assembly had the authority to adjudicate that wilful disobedience to its order to attend in reference to a libel reflecting on its Members is a contempt, and to punish that contempt by imprisonment. 122 123 124 125 126 127 128

(1878), 2 S.C.R. 158. See also Chapter 14. Ibid., at 192. S.N.S. 1876, c. 22. Todd, Parliamentary Government in the British Colonies, 1894, p. 691-3. R. v. Bunting (1885), 7 O.R. 524 at 536 (CA.). Commission royale d'enqu&e v. Boulanger, [1962] Que. Q.B. 251 referred to R. v. Bunting with approval. [1896] A.C. 600.

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Section 4 of the Parliament of Canada Act provides for the full lex et consuetudo parliamenti to be in effect in Canada; accordingly, the English authorities confirming this power in the U.K. are, subject to the Charter (see Chapter 14), good law in Canada.

nPosition of the provincial legislative assemblies With respect to the provinces, s. 92(1) (now s. 45, Schedule B, Constitution Act, 1982, C. 11 U.K.) of the British North America Act, 1867 (now the Constitution Act, 1867), was an invitation to each province to adopt by enactment the lex et consuetudo parliamenti. In the light of Fielding u. Thomas, the early Acts of the Legislatures of Ontario and Quebec,129 granting to themselves the same privileges enjoyed by the House of Commons of Canada, were valid legislation under s. 92(1), and the federal government, on the advice of the English law officers, improperly disallowed them.130 Unless a province so legislates, however, the courts will be entitled to fall back on Kielley v. Carson and Doyle u. Falconer, i.e. the common law as respects the rights and powers of such institutions. In such a case, in the absence of legislation, a province has no power to commit for contempt whether or not committed in the face of the legislature.

nPosition of the Legislative Assembly of the Northwest Territories and of the Yukon Territory The issue regarding the powers of legislatures to commit also remains very relevant with respect to the Yukon Territory and to the Northwest Territories. Unless provided by federal statute, these legislatures would enjoy only those powers necessarily incidental, i.e. Kielley v. Carson and Doyle v. Falconer would apply (in other words, the same privileges and powers provided by the common law to a province that failed to legislate). Accordingly, these legislatures do not enjoy the power to commit for contempt without an express grant to that effect, and therefore it is immaterial whether the contempt occurs in the face of the legislature or not.131 They may remove persons from the sitting for security, and the ordinary civil jurisdiction of the court does not extend to determining the rights of Members to sit on the council.132 But it has been 129 130 131 132

Supra, note 116. Supra, note 117. That legislative authority would have to be contained in an Act of the Parliament of Canada. In Cliamberlist v. Collins (1962), 39 W.W.R. 65 at 67 (Yukon CA), jurisdiction to disqualify the plaintiff Member of the Yukon Council was expressly conferred by statute and the court held that it had no power to review council's decision to expel the Member.

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held that in the absence of legislative authority, such a legislature may not expel or suspend a Member indefmitely.133 Since it is clear that the lex et consuetudo parliamenti applies to the Canadian House of Commons and the Senate,134 and since the courts must take judicial notice of it,135 subject to the Charter (see Chapter 14), the law of the U.K. in this matter is also the law of Canada. Accordingly, the line of authorities, including Burdett u. Abbot, applies, subject, of course, to the Charter (see Chapter 14).

The need for the penal power (a) In the U.K. The need for the power to commit was set out by Ellenborough Ch.J. in Burdett v. Abbot when he emphasized that the power was essential for the maintenance of the dignity of the House and stated that the House "would sink into utter contempt and inefficiency" without them.136

(b) In Canada It will be recalled that Kielley v. Carson held that the penal power was not necessary for a colonial legislative assembly to perform its functions. It will be seen infra (Chapter 14, the Charter) that the test of necessity is now applied for the purpose of determining the necessary sphere of matters without which the dignity and efficiency of the House cannot be upheld. If the matter is necessary in that sense, the courts will not inquire into questions concerning such privileges; all such questions will fall instead to the exclusive jurisdiction of the legislative body.137 The power to commit is the most severe of the powers to punish possessed by the House of Commons. In addition, the House of Commons may reprimand but may not impose a fine, because by 1867, the practice of the U.K. House of Commons of imposing fines had long been in desuetude and is now extinct.138

133

134 135 136 137 138

Barton v. Taylor (1886), 11 App. Cas. 197 (PC.); cf. Harnett v. Crick, [1908) A.C. 470 (PC.); Halsbury, 3rd ed., vol. 5, p. 478; but see opinion of law officers of the Crown, (1815) supra. Constitution Act, 1867, s. 18 R.S.C. (1985), c. P-1, s. 4. Ibid., Parliament of Canada Act, s. 5. (1811), 14 East 1 at 152 and 159. N.B. Broadcasting, [1993] 1 S.C.R. 319 at 383. Not since 1666; May, 21st ed., p. 110; R. v. Pitt (1762), 3 Burr. 1335, 96 E.R 214. Among the provincial legislative assemblies, the National Assembly of Quebec may impose fines (R.S.Q. 1993, CA. 23-1, s. 133), as well as the House of Assembly of Newfoundland (R.S.N. 1990, C.H. 10, s. 17).

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Contempt committed against one Parliament, however, may be raised and punished in another.139

Duration of imprisonment The House of Commons or the Senate may commit a person to jail until the session is prorogued,140 and may renew the committal in the next session, and in the next session of the next Parliament.141 In the event someone was held in jail after prorogation or dissolution, the courts would be entitled to discharge such a person by habeas corpus.142

The warrant to commit The last (and only) time the Canadian House of Commons committed a person to prison was on February 20,1913, when the House resolved that "Mr. R.C. Miller be committed to and imprisoned in the common jail of the County of Carleton in the City of Ottawa until the prorogation...and the keeper or other officer in charge of the said jail is hereby authorized to receive the said Mr. R.C. Miller into his custody accordingly and that Mr. Speaker do forthwith issue his warrant therefore accordingly." The early cases of ex parte Monk (1817), McNab v. Bidwell (1830), and Re Tracey (1832) indicate that the courts generally would not sustain any argument in respect of any defect in the warrant of commitment by the legislative council unless the warrant simply did not say what it purports to do.143 The court in these instances relied particularly on the decision of Ellenborough Ch.J., in Burdett v. Abbot, who was there dealing with power of the House of Commons in the U.K. and who suggested that the power to commit stemmed not only by virtue of their descent from the undivided High Court of Parliament and from ancient custom and usage, but that independently of this practice, such a body as the House of 139 140 141 142 143

Journal, November 9, 1978, p. 127; Debates, December 16, 1980, p. 5797. Halsbury, 4th ed., vol. 34, p. 607; see also ex parte Monk (1817), Stuart's Reports L.C.K.B. 120; Bourinot, 4th ed., p. 59. May, 21st ed., p. 109. Stockdale v. Hansard (1839), 9 Ad. & El. 1 at 114, 112 E.R. 1112; ex parte Monk, supra, note 139. One exception took place in 1812 in Upper Canada when the Chief Justice (who was also Speaker of the Legislative Council) was found to be "guilty of a violent breach of the privilege" of the Legislative Assembly for having released a person on habeas corpus who had been committed by the Legislative Assembly. The reason (given in the form of a reply to a message from the Legislative Council to the Legislative Assembly) was that the Speaker's warrant was defective: it did not properly recite the order of the Legislative Assembly on which it was based, nor did it recite that the Speaker was authorized to issue his warrant. Notwithstanding this explanation, the Legislative Assembly adopted an Address to the Prince Regent informing him of the violation and that it represented an interference on the part of the judicial authority (Journals, Upper Canada Legislative Assembly (February 29, March 2, 1812).

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Commons must a priori be armed with the authority to enforce the free and independent exercise of its own proper functions. It will be recalled that the U.K. law officers in 1815 said the legislative assemblies had power to commit for contempt committed in the face of the assembly,1" whereas it was not unti11842 in Kielley u. Carson that the Judicial Committee of the Privy Council held that such an assembly did not have the power to punish for contempt committed outside the House. In 1866, the Judicial Committee in Doyle v. Falconer held that a local legislature had no power to commit for contempt committed before it; they only had power to protect themselves. In 1855, the Superior Court of Quebec held in ex parte Lavoie145 that the courts of law cannot inquire into the cause of commitment by the legislature when it is not disclosed in the warrant: the authorities of English law must prevail.146 Subsequently, in ex parte Dansereau in 1875,147 the same court held that the omission to state in the Speaker's warrant of arrest the grounds and reasons therefore is not fatal. Here the legislature could rely on provincial legislative authority to summon witnesses and punish disobedience,148 which, in the light of Fielding v. Thomas,149 decided twenty-one years later, was valid provincial legislation. However, when Mr. Thomas of Fielding v. Thomas fame (see supra, note 128) applied for habeas corpus, he was discharged from jail because, the court said, the commitment did not fall under the Act that provided the authority to commit. That is, the Speaker's warrant of commitment did not set forth clearly and succinctly an offence against any of the provisions of the Act in Re Thomas, 21 C.L.T. 503 (1892). With respect to the warrant of the Speaker of the House of Commons to commit to prison, on the basis that the House of Commons of Canada has the same power and authority held and enjoyed by the U.K. House of Commons, until the Charter, the courts would not inquire into the causes of commitment unless stated on the warrant, and irregularities of form did not vitiate the warrant.155 Furthermore, it was not necessary for the warrant to show that the person had been adjudged guilty of contempt.151 It seems likely that legislative bodies will now have to reckon with the Charter when exerting their penal power (See Chapter 14). 144 145 146 147 148 149 150 151

Kennedy, p. 297. (1855), 5 Low. Can. R. 99. Ibid., at 131-2. (1875), 19 L.C.J. 210. 33 Victoria, c. 5. [1896] A.C. 600. May, 21st ed., p. 105; Halsbury, 4th ed., vol. 34, p. 612; Bourinot, 4th ed., p. 61. Bourinot, 4th ed., p. 61-2, citing Howard v. Gosset (1845), 10 Q.B. 359, 116 H.R. 158, reversed at (1847) 10 Q.B. 411, and Burdett v. Abbot.

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Protection afforded to officers of the House executing orders of House of Commons While the Sergeant-at-Arms ordinarily has no authority beyond the precincts, when executing a legitimate order of the House, he has all the authority necessary to carry out that order.152 In the U.K, bringing an action against an officer or employee of the House of Commons for executing the orders of the House or doing somethingin conformity with practice has been treated by that House as a breach of privilege. In this way, the House may protect its employees in carrying out the orders of the House required in exercising its legitimate functions. May (21st ed., p. 77) cites the case of Ferrers in 1543 and the more infamous instance where the judges in Topham's case in 1689 were ordered to attend the House, were examined at the Bar of the House, and were finally ordered to be taken into the custody of the Sergeant-at-Arms by resolution of the House for having ruled that the Sergeant-at-Arms was not protected by the House of Commons when he arrested and detained Jay pursuant to an order of the House. It was the last time a judge was ordered to appear before the House of Commons in the U.K In 1838, Assistant Judge Lilly was arrested for having freed Dr. Kielley on habeas corpus after Kielley was committed by the Newfoundland House of Assembly (see (1981) 4 Can. Parl. Rev. 10). There have been few instances in Canada where officers of the legislatures of the provinces or of pre-Confederation assemblies have been sued on account of actions taken in pursuance to orders of their assembly.153 There are no cases of officers or employees of the House of Commons having been sued for actions taken pursuant to an order of the House of Commons.154 Officers of the House of Commons, and for that matter any employee who acts pursuant to an order of the House, receive the protection of the House because the House is able to consider any interference a contempt. There are many instances in the U.K.,155 and the Canadian House has the same authority by virtue of the lex parliamenti garnered by the Parliament of Canada Act. This applies to acts done pursuant to its

152 153

154 155

Burdett v. Abbot (1811), 14 East 1. See Landers u. Woodworth, supra, note 122, involving the Sergeant-at-Arms of the Nova Scotia Legislature, and supra, Chapter 10 re: Payson u. Hubert (1904), 34 S.C.R 400, where a messenger of the same legislature was sued for ejecting a member of the public from the precincts. Officers and other employees are also protected when acting within the corporate right of the House to manage its affairs (Williamson v. Norris, [1899] 1 Q.B. 7). See May, 21st ed., p. 106.

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legitimate authority and while defending a known privilege or in pursuance of its power to cite and commit for contempt.156 However, the court in Stockdale v. Hansard refused to concede that officers of the House of Commons could with impunity execute an illegal order of the House beyond the walls of the Chamber: So if the Speaker by authority of the House, orders an illegal act, though that authority shall exempt him from question, his order shall no more justify the person who executed it than King Charles' warrant for levying ship-money could justify his revenue officer.157 As a general rule, however, any person interfering with an officer of the House while he is executing an order of the House could be held in contempt of Parliament because such action is an affront to its authority.158 If the officer does not exceed his authority, he will be protected by the courts, even if the warrant should not be technically formal according to the rules by which the warrants of inferior courts are tested.

Punishment imposed on Members Apart from committing a Member to prison, the House of Commons may suspend or expel a Member. Such power to expel is not confined to offences committed by a Member as Member or during a session of Parliament, but extends to all cases where the offence is such as, in the judgment of the House, to render the Member unfit for parliamentary duties.159 Although the House of Commons has delegated its right to be the judge in controverted elections, it retains its right to decide upon the qualifications of any of its Members to sit and vote in the House. Suspension is a power legally incidental to a legislature because it is necessary for any such body to be able to protect itself should the circumstances warrant. The power to expel for conviction for a crime of an infamous nature was suggested in 1815 for the legislatures of Upper and Lower Canada,166 and the Journals of both of these legislatures show that expulsion was effected since 1800 for crimes perhaps not so infamous.161 Since Confederation, there have been four expulsions from the House of Commons. Louis Riel was expelled April 16, 1874, as a fugitive from justice. Upon being re-elected September 3, 1874, in a by-election on 156 157 158 159 160 161

Ibid., p. 121. (1839), 9 Ad. & El. 1 at 114. May 21st ed., p. 106; Bourinot, 4th ed., p. 57. Bourinot, 4th ed., p. 64. Kennedy, p. 299. See Bourinot, 4th ed., p. 66-7; neither House of Parliament has the power to impose a fine; see supra, text at note 136.

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February 25, 1875, a motion for the issue of a new unit for Provencher "in the room of Louis Riel, adjudged an outlaw" was adopted.162 Thomas McGreevy was expelled in 1891. The last time a Member was expelled was January 30, 1947, when the seat held by Fred Rose, the Member for Montreal—Cartier, was declared vacant by order of the House. Rose had been sentenced to six years' imprisonment on June 30, 1946, for conspiracy to give unauthorized information to the U.S.S.R. The reasons for expulsion in the U.K. House show a wide variety of serious offences.163 It is a decision for the House as to whether a particular offence warrants expulsion. In the light of precedents here and in the U.K., it is unlikely that the House of Commons would take any action unless the offence was one that it felt involved serious moral turpitude rendering the person unfit to be a Member of the House. In all of the instances both in Canada and in the U.K., the House will go to great lengths to have all available evidence, e.g. judgments sentencing the Member and appeals confirming the sentence before it, prior to embarking on the serious course of expelling one of its Members. In the case of Fred Rose, the House waited until all appeals were exhausted and until it was clear that the Member could not fulfil his parliamentary duties because of his prison sentence.164 The task is rendered easier for the House when the Member is sentenced to prison, and the instance has yet to arise of a Member convicted of a crime involving serious moral turpitude for which the sentence is suspended. In such an event, the House would have to weigh the question of fitness of the person to remain a Member, should it become seized of the issue. In any event, while any Member may move to examine the conduct of another Member, where a Member has been convicted of a serious offence, the motion to declare his seat vacant, when it is moved, is normally moved by a Member of the government. Unless the cause of his expulsion by the House constitutes in itself a disqualification to sit and vote in the House,165 the expulsion of a Member does not create any disability. The Member who is expelled may be a candidate at the next general election or by-election, as was clearly demonstrated in the case of Louis Riel. 162 163

164 165

See Bourinot, 4th ed., p. 67. May, 21st ed., p. 112-3. For the position on the U.S. House of Representatives, see House Discipline of Members after Conviction but Before Final Appeal, C.R.S. Report for Congress, March 1, 1988 (Jack H. Haskell) #88-1977. See English practice described in May, 21st ed., p. 113. A person convicted of corrupt election practices is disqualified as a candidate for seven years and a person convicted of illegal election practices is disqualified as a candidate for five years (Canada Elections Act, R.S.C. (1985), c. 14 (1st Supp.), s. 21).

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Commitment and habeas corpus In the U.K. The Habeas Corpus Act, 1679166 binds all persons; accordingly, anyone committed by the House of Commons will be brought by his jailor before the court (i.e. any jailer is required to make a return to writ of habeas corpus). 167 Unless the cause of commitment is stated on the Speaker's warrant and it discloses no legal cause of commitment (for example, assaulting a Member of the House of Commons for reasons unrelated to a proceeding in Parliament), the person committed for contempt may not be released on habeas corpus or the causes of the commitment inquired into.188

In Canada The Canadian experience has not been quite equal. In 1812, when the Chief Justice of Upper Canada released a person on habeas corpus who had been committed by the Legislative Assembly, the Chief Justice held that the Speaker's warrant was defective in substance, and he was found by the Assembly, as a consequence, to be "guilty of a violent breach of the privilege" of the Assembly (see supra, note 143). The court in the ex parte Monk case relied on Burdett v. Abbot on a related matter in releasing Monk on habeas corpus, but after prorogation.169 In the case of Tracey,170 habeas corpus was denied to a person committed for contempt by the Quebec Legislature. The Tracey case refers to the case of Ludger Duvernay, who was committed for contempt and suffered the same fate, i.e. habeas corpus was denied. Similarly, in ex parte Lavoie,171 habeas corpus was denied. In ex parte Cotte v. Duuernay, a court composed of a single judge refused habeas corpus (Feb. 9, 1875). Eight days later, in ex parte Duvernay, four of five judges granted habeas corpus (Feb. 17, 1875). In 1892, Mr. Thomas of Fielding v. Thomas was released on habeas corpus. 166 31 C. 2, c. 2. 167 In both the U.K. and Canada, in the case of commitment, only the warrant need be the return to the writ rather than the body of the person. Furthermore, those who are committed for contempt may not in the U.K. be committed to bail (May, 21st ed., p. 104). 168 See May, 21st ed., p. 121-3. Burdett v. Abbot and the Sheriff of Middlesex are the principal cases. 169 (1834), Stuart's Reports L.C.K.B. 120. 170 (1832), Stuart's Reports L.C.K.B. 478. 171 (1855), 5 Low. Can. R. 99.

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Mr Roberts was refused habeas corpus by the Quebec Superior Court in 1922 following committal by Act of the legislature.172 After Confederation, no case arose in which the power of commitment by the House of Commons was the issue before the courts. However, the law of the U.K., i.e. the lex et consuetudo parliamenti, is part of the law of Canada and the courts must take judicial notice thereof and apply it.173 Since the U.K. law applies in the case of the power of commitment by the House of Commons, the reasons are the same: one court will not question another court of equal jurisdiction, and the House of Commons is a superior court for purposes of jurisdiction over matters of contempt. Ex parte Dansereaum continued the practice in respect of the provinces, as the court there refused habeas corpus. However, should a person be released by habeas corpus from a commitment imposed by the provincial legislature, a further warrant for commitment that reveals no new offence will be discharged by habeas corpus.175 The practice in the House of Commons has been in abeyance since 1913, when R.C. Miller was committed to the common jail of the County of Carleton. However, should it be necessary to commit someone to prison, the House would by resolution ultimately order the Speaker to address his warrant first to the Sergeant-at-Arms to take the person into custody and deliver the person to a jail, and secondly to the person in charge of the closest of the federal prisons to receive the offender in question for such period as set out in the warrant, reciting the order of the House. By the lex parliamenti, all peace officers, including the jailer, are required to act in accordance with the terms of the warrant, subject in turn to being held in contempt of the House of Commons for failure to carry out the direction of the warrant; the Speaker's warrant should be construed as if it were a writ from a superior court.176 It was seen earlier that a general form of the Speaker's warrant will not be inquired into by the courts,177 and should habeas corpus be invoked in such circumstances, the only return made to writs of habeas corpus is the Speaker's warrant. Furthermore, the party cannot be admitted to balm

172 See A.B. 173 174 175 176 177 178

Keith, Responsible Government in the Dominions (Oxford: Clarendon Press, 1928), vol. 1, p. 373. Parliament of Canada Act, supra, s. 4, 5. Supra, note 118. Ex parte Duvernay (1875), 19 L.C.J. 210, at 219 to 248 (CA). Howard v. Gosset, supra, note 151. See also Burdett v. Abbot and the case of the Sheriff of Middlesex (May, 21st ed., p. 153). Supra, note 150. Bourinot, 4th ed., p. 60, note i, and p. 61.

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Finally, all persons committed by either House of Parliament or by a legislative assembly may be released on habeas corpus application after the session prorogues or after the Parliament or legislature is dissolved,179 but the commitment is renewable in the next session by further order of the House or legislature. The effect of the Canadian Charter of Rights and Freedoms on the penal power will be examined in Chapter 14.

n Suits by or against the House of Commons or Senate The House of Commons and the Senate exist as constituent elements of Parliament. They are not legal entities, and therefore they cannot be sued nor can they sue.180 Furthermore, the Crown is not liable in law for the actions of officers and employees of the House of Commons or of the Senate.181 In 1991, Parliament provided that the Board of Internal Economy for the House of Commons (Board) and the Committee on Internal Economy, Budgets and Administration (Committee) for the Senate have each the capacity of a natural person and may enter into contracts and each may act on all financial and administrative matters regarding the premises, services, staff, and Members of their respective Houses.182 Accordingly, in matters such as contract and tort, the Board or Committee, as the case may be, may sue or be sued. However, courts have long been entertaining suits against officers or other employees of legislatures by persons prejudicially affected by the action these officers and employees carried out on behalf of the legislature (in the U.K., at least since 1689,183 when the Sergeant-at-Arms, Topham, was sued by Jay for arresting and defaming him pursuant to an order of the House of Commons, and in Canada, at least since 1830,184 when the Speaker, Bidwell, was sued for assault and false imprisonment on account of actions the Legislative Assembly of Upper Canada had undertaken against the plaintiff pursuant to its order).183 179 180

181 182 183 184 185

Ex parte Monk (1817), Stuart's Reports L.C.K.B. 120. Gabias c. L'Assemblee legislative de la province de Quebec Casgrain J. Superior Court, District of Quebec, No. 138-195, May 3, 1965, not reported; see, however, House of Commons v. Canada Labour Relations Board et al, [1986] 2 F.C. 372 at 386 to 389. Kimmitt v. R. (1896), 5 Ex. C.R. 130; R. v. McLean (1882), 8 S.C.R. 210. Parliament of Canada Act, R.S.C. (1985), c. P-1, s. 19.1 to 19.3 and s. 50, 52.2, 52.3. Jay v. Topham (1689), 12 State Tr. 821. McNabb v. Bidwell (1830), Draper 144 (CA). Among the provincial legislative assemblies, the Legislative Assembly of Ontario has passed an Act permitting the Speaker, for and on behalf of the (Office of) Assembly, to enter into agreements and to sue in the name of the Attorney General: see R.S.O. 1980, c. 235, s. 99. There is legislation in the U.K establishing a body corporate, "The Corporate Officer of the House of Commons," with power to sue and be sued: Parliamentary Corporate Bodies Act (1992, c. 24, p. 2).

CHAPTER 12

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

Introduction The House of Commons is certainly the most important secular body in Canada. It is said that each House of Parliament is a "court" with respect to its own privileges and dignity and the privileges of its Members.1 The purpose of raising matters of "privilege" in either House of Parliament is to maintain the respect and credibility due to and required of each House in respect of these privileges, to uphold its powers, and to enforce the enjoyment of the privileges of its Members. A genuine question of privilege is therefore a serious matter not to be reckoned with lightly and accordingly ought to be rare, and thus rarely raised in the House of Commons. It will be seen, however, that in Canada the theory is contrasted with the practice.

U.K. and Canadian practice — some differences2 It is irregular to make a complaint of privilege in the English Commons unless the Member is prepared to follow up with a substantive motion. The current practice in the United Kingdom is for the Member to make a motion (if the Speaker fmds aprima facie case and is prepared to give the motion precedence in debate) referring the matter to the Committee of Privileges.3 In the Canadian House of Commons a much less formal practice prevails. While it may not be correct and is becoming less frequent, it is yet not unusual for a Member to raise a "question of privilege" without ever intending to move a motion. Similarly, when a

2

3

Debates, June 19,1959, p. 4930. See also Reference Re Amendment of the Constitution of Canada, Nos. 1, 2 and 3 (1981), 125 D.L.R. (3d) 1 at p. 30. In 1978, the U.K. House of Commons decided that no Member should be able to raise a complaint of privilege in the House without first submitting his complaint in writing to the Speaker, and if the Speaker decides that the matter is not really one of privilege or is trivial, the Member concerned cannot raise it at all. He can put down a motion on the Order Paper, but his motion has no priority for debate as a matter of privilege. See article written by Rt. Hon. George Thomas, M.P., Speaker of the House of Commons, Westminster. The Parliamentarian (October 1980). See also May, 21st ed., p. 135-6. Ibid., p.135.

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question of privilege concerns a complaint against a Member and is raised in the Canadian House of Commons in the absence of that Member, where it is thought necessary, the Speaker has extended every consideration to afford the Member an opportunity to contribute to the debate before ruling in his absence on whether there is a prima facie case.4 In the U.K. Commons, "privilege" is infrequently raised and moreover never raised lightly. Accordingly, the practice in the U.K. in these circumstances is that a Member will not only be allowed to present his side, but the House will adjourn further consideration of the matter of the complaint to a future date to accommodate the Member; on occasion the Member in question has been ordered to attend.5 In the past, once the U.K. Commons Speaker found a prima facie case that involved the conduct of a Member, that Member made a statement but then withdrew before the House debated the motion to refer it to the committee.6 However, the present practice has tended toward permitting Members to remain in the Chamber.? This is also the practice in the Canadian House of Commons,8 unless Standing Order 20 intervenes.9 Before making a complaint against a Member, it is the practice in the U.K., as a matter of courtesy, to give him notice beforehand (May, 21st ed., p. 138). In Canada, the Speaker may not necessarily entertain a question of privilege in the absence of the Member who may be the subject of the complaint.

How precedentlo is established in Canadian Commons This does not prevent a body of precedent being established and built up, however. The Speaker may refer to and rely upon decisions of the Chair in respect of matters that were found to be prima facie cases of privilege, and in respect of reports from the privileges committee that were never adopted by the House.

4 5

6 7 8

9

10

Journals, December 19, 1974, p. 228; for Senate practice, see Senate Debates, November 24, 1980, p. 1273. May, 21st ed., p. 139. See supra this chapter in respect of Mr. Quentin Hogg, MP., and Mr. Duffy, M.P. May, 21st ed., p.140. See Debates, November 29, 1962, p. 2132-2133. S. 0.20. "If anything shall come in question touching the conduct, election or right of any Member to hold a seat, that Member may make a statement and shall withdraw during the time the matter is in debate." With regard to parliamentary practice generally, simply because something was recorded does not thereby create a precedent. See Debates, November 6,1986, p. 1153, Mr Speaker.

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The House of Commons will also send matters to committee where there is unanimous consent—that is, without the Speaker deciding whether there is a prima facie case.11 In all of these instances, it is not incorrect to say that the law of Parliament is enunciated by Speaker's rulings where he has found prima facie cases whether or not the House has sent it to committee, and when it is sent to committee, particularly when the committee in turn confirms that finding. It is therefore also contained in committee reports that are not adopted by the House but that support the prima facie finding of the Speaker. Yet it is incorrect to say that these same reports and rulings are not the views of the House itself; notwithstanding that the House normally only formally adopted the motion to refer the prima facie case to the committee. A rare exception took place on December 22, 1976, when the House of Commons found The Globe and Mail in contempt of Parliament for an editorial respecting the partiality of the Speaker, without referring the matter to the committee. It was, however, not accomplished by the usual privilege procedure but rather with the unanimous consent of the House under the Standing Order then in force where a Member may seek the unanimous consent of the House to move a motion in a case of urgent and pressing necessity.

How to embark on privilege proceedings After having complied with the notice provisions set out in Standing Order 48, as the case may be, with the words, "Mr. Speaker, I rise on a question of privilege," the traditional way of initiating privilege proceedings in the House of Commons is commenced by a Member. In the event such invocation arises from something that occurred or was said contemporaneously with the proceedings, no notice is required; otherwise notice must be given.12 In any event, a motion based on the Speaker having found a prima facie case of privilege will be given precedence over the planned business of the House for that day. A Member may also proceed by substantive notice of motion and the matter would then be dealt with in the usual course of such proceedings as was the case of Motion M-1 of Mr. Boudria in the Order Paper and Notice Paper of February 28, 1996. 11

12

Debates, April 27, 1964, p. 2582-3, 2645-7. Because there have been a number of changes since 1982 to the name of the standing committee that receives references regarding privilege, the text will hereinafter simply refer to the "Committee," or "Committee on Privileges." (See Appendix for list of changes since 1982.) The present name is the Standing Committee on Procedure and House Affairs. Infra, Procedure Involved in Moving a Motion Based on a Question of Privilege in the House of Commons.

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Debates on the "question of privilege": the Canadian experience In the U.K. Commons, the Speaker will not entertain a debate on the matter raised as a "question of privilege" unless and until he finds aprima facie case of privilege granting precedence in debate, and even then it is discouraged and left to the Committee on Privileges.13 In the Canadian House of Commons "questions of privilege" are frequently raised but few are found to be prima facie cases (see infra, note 18). Furthermore, Members have a tendency to use the rubric "privilege" to raise what is really a matter of "order," or, in the words of the Speaker of the House of Commons, a grievance against the government. These include legitimate (though not necessarily valid) points of order.14 Since legitimate points of order and grievances that would otherwise be debated under the heading of a "point of order" have been raised under the heading of "privilege," the practice in the past has been to take into account this tendency of Members to frequently raise matters of "order," or grievances, when rising on a question of privilege. The role of the Speaker is to determine whether a prima facie case of privilege has been made out. Where it is evident that "privilege" is usually not at stake, or where the "question of privilege" does not amount to a legitimate point of order, or a "significant grievance," the Speaker intervenes, frequently if necessary, to direct the Member's attention to the role of the Speaker and to request that the Member debate the issue of a prima facie case alone, rather than other aspects of the facts submitted in support of the alleged question of privilege. The Speaker also intervenes to curtail debate when he is satisfied that he has sufficient information and has heard sufficient argument to assist him to arrive at a decision. This rule of relevancy is now more rigidly applied, and the Member who rises on a "question of privilege" should, in relatively short order, bring forth facts that, in the opinion of the Speaker, amount to a prima facie case demanding precedence in debate. Further debate will frequently only be permitted where the Speaker is satisfied that the facts may affect privilege. In other words, it would be the duty of the Committee on Privileges to carry out an investigation should the matter be referred to it and report to the House; and it would be only the House that actually may find whether a breach of privilege or a contempt of the House has occurred. 13

14

See, for example, case of Mr. Quentin Hogg, U.K. Debates, March 23, 1964, c. 35-41; March 24,1964, c. 252-60; case of Mt Duffy, U.K. Debates, February 15,1965, c. 855-6; February 16, 1965, c. 1011-2. The index to the Debates for any session of any recent Parliament under the headings: "Privilege"; "the Speaker's name"; and "Speaker and Deputy Speaker", "Rulings and Statements", subheading "Privilege", would show to the satisfaction of the reader that "privilege" raised in the Canadian House of Commons has not been the preserve only for matters relating to the protection of the Member in his parliamentary work or for the vindication of the authority of the House protecting its Members.

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Accordingly, the Speaker is entitled to insist that a Member who raises a question of privilege should relate his remarks to the only issue before the Speaker— that is to say, to show with facts that there is aprima facie case and that it should take precedence in debate over all other matters before the House. This would apply a fortiori to any other Member who participates.

Prima facie case — parliamentary sense A prima facie case of privilege in the parliamentary sense is one where the evidence on its face as outlined by the Member is sufficiently strong for the House to be asked to debate the matter and to send it to a committee to investigate whether the privileges of the House have been breached or a contempt has occurred and report to the House.

Only the House may decide if contempt or breach of privilege has occurred While the Speaker may fmd that aprima facie case of privilege exists and give the matter precedence in debate, it is the House alone that decides whether a breach of privilege or a contempt has occurred, for only the House has the power to commit or punish for contempt.

Privilege arising in committee Accordingly, a committee may not commit a person for contempt or breach of privilege. Nevertheless, it may report to the House that in its opinion a breach of privilege or contempt has occurred and ask the House to take action. Therefore, while the chairman cannot entertain questions of privilege in the sense that he is not competent to rule on whether a prima facie case has occurred, as the Speaker may do, the chairman of a committee may entertain a motion that certain events that occurred in the committee may constitute a breach of privilege or contempt and that the matter be reported to the House. However, events occurring in a committee, such as disruptions by those not otherwise taking part in the proceedings, may be raised in the House directly15 or on report by the committee. A matter characterized as a breach of the freedom of speech that occurs in committee would probably hereafter be successfully raised in the House in the absence of a report.16

15 16

Case of the visit of a sub-committee to University of Essex, U.K. Debates, April 25, 1969, and see H.C. 308 (1968-9), p. 308 (U.K.). See otherwise May, 21st ed., p. 136. See Debates, March 16, 1993, p. 17071-3, and supra, Chapter 3.

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In short, alleged breaches of privilege or contempts that arise in committee may be the subject of a legitimate question of privilege to be raised in the House.17 The practice (of the Speaker not interfering in committee matters unless a report of the matter has been made) was "not an absolute one and that in very serious or special circumstances the Speaker may have to pronounce on a committee matter without the committee having reported to the House" (Debates, March 26, 1990, p. 9756-58. See also Generally Regarding Committees, p. 9756-8).

Canadian Commons practice more relaxed than in U.K. Because of a more relaxed practice, the House of Commons of Canada is accustomed to entertaining many alleged questions of privilege. It is therefore not unfair to say that on most occasions that a Member rises to invoke privilege, the remarks do not raise a real "question of privilege."18 Nevertheless, Speakers continue to urge Members to restrict the use of privilege procedure to those rare occasions when the known privileges are alleged to have been breached or where there is a real chance that an act or words could constitute contempt.

Alleged acts must relate to a Member's parliamentary work: words or acts must amount to contempt But it is because of its nature that a valid question of privilege arises only infrequently. There must be some act that improperly interferes with the Member's rights, such as his freedom of speech or freedom from civil arrest. The interference, however, must not only obstruct the Member in his capacity as a Member, it must obstruct or allege to obstruct the Member in his parliamentary work. For just as the Member is protected for what he does during a "proceeding in Parliament," so must the Member's parliamentary work or work relating to a "proceeding in Parliament" be alleged to be improperly interfered with before the 17

For example, see Debates, December 11, 1984, p. 1114-5, relating to an alleged breach of the privilege of freedom of speech that was not so found by the Speaker. See also Debates, June 9, 1969, p. 9899-900. 18 During the only session of the Thirty-first Parliament, a period of 49 sitting days, privilege was invoked approximately 94 times, yet the Speaker was not able to find one prima facie case. During the first 66 sitting days of the first session of the Thirty-second Parliament, privilege was invoked approximately 92 times, and again the Speaker was not able to find one prima facie case. More recently, between March 28, 1984 and March 19, 1993, the Speaker found eight (8) prima facie cases of privilege, all of which are reflected in the text.

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Speaker may find a prima facie case;19 or there must be some act that improperly interferes with one of the corporate rights of the House, such as its right to call for witnesses; or the words or act complained of must be such that on their face they do or tend to hold the institution of Parliament in contempt.

Where the answer is contained in rules or practice of House In deciding whether there is aprima facie case, the Speaker excludes any matters that are otherwise properly to be dealt with under the practice or Standing Orders of the House. That is to say, where the answer to the alleged "question of privilege" is contained in the rules or the practice of the House, it would unlikely involve a breach of the privileges of Members.

A point of order is not a matter of privilege A breach of the Standing Orders or a failure to follow an established practice would invoke a "point of order" rather than a "question of privilege." Allegations of fact amounting to allegations that proper procedures were not followed are by their very nature matters of order, and even if valid will not receive priority in debate as would a prima facie case of privilege. A dispute between two Members about questions of fact said in debate does not constitute a valid question of privilege because it is a matter of debate. Similarly, the alleged lack or unsatisfactory nature of a reply to an oral or written question is not a question of privilege, because the practice of the House does not compel a reply. An allegation of 19

The mid-eighteenth century in the U.K was a period when the House of Commons abused its authority to commit for contempt and to punish for alleged contempts and permitted factual situations completely unrelated to a proceeding in Parliament to be considered a matter of privilege. The case most frequently cited occurred in 1759 and was "an action of trespass for breaking and entering a fishery tried in the House of Commons, to the lasting opprobrium of parliamentary privilege, to the scandal and disgrace of the House of Parliament that tried it, and to the astonishment and alarm of all good men, whether lawyers or laymen. Admiral Griffin made complaint to the House whereof he was a Member, that three men had broken into and entered his fishery near Plymouth, had taken the fish therefrom, and destroyed the nets therein; and the House forthwith, instead of indignantly and in mockery of such a pretension dismissing the charge and censuring him who made it, ordered the defendants in the trespass, for they must be called, to be committed into the custody of the Sergeant-at-Arms. They were committed into that custody accordingly; they were brought to the Bar of the House of Commons, and there, on their knees, they confessed their fault; they promised never again to offend the admiral by interfering with his alleged right of fishery; and upon this confession, and promise they were discharged on paying their fees." Wellesley v. Duke of Beaufort (Mt Long Wellesley's case) (1831), 2 Russ. & M. 639 at 659-60, and footnote (a), p. 660, where it is pointed out that the Journals of the House of Commons (U.K.) at that period abound with cases of a similar kind. For specific instances, see Stockciale v. Hansard (1839), 9 Ad. & EL 1 at 13, 48 Rev. Rep. 326 at 334.

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misleading the House is not out of order or unparliamentary nor does it amount to a question of privilege. However, an admission by a Member that he misled the House would constitute a matter of disorder, and an admission of deliberately misleading the House would constitute a breach of privilege20 or, more properly, a contempt. A complaint that a minister of the Crown has made a statement outside the House rather than in the House or that the government provides information only to its supporters in the House may well amount to a grievance against the government, but in the absence of an order in the House forbidding such activity, there is no personal or corporate privilege that has been breached in the doing, and neither does it constitute contempt of the House in the "privilege" sense.21

Privilege concerns a Member as Member, not as Minister, Party Leader, Whip or Parliamentary Secretary Furthermore, parliamentary privilege is concerned with the special rights of Members, not in their capacity as ministers or as party leaders, whips, or parliamentary secretaries, but strictly in their capacity as Members in their parliamentary work. Therefore, allegations of misjudgment, or mismanagement, or maladministration on the part of a minister in the performance of his ministerial duties do not come within the purview of parliamentary privilege.22 And neither does an allegation that a minister permitted a budget leak constitute a matter of privilege.23 That is to say, the House would assure its Members that they are protected in their capacity as Members in their parliamentary work because it is the service to the House as Members that is concerned with and protected by parliamentary privilege, but not otherwise.

Differences between breach of privilege and "contempt"

"As a working rule it can be said that when an offence is not identifiable as a breach of known and enumerated rights and immunities, then the offence is a contempt of Parliament."24 The significant difference between a breach of privilege and contempt may be put this way: 20 21 22

23 24

(U.K.) C.J. (1962-3), p. 246. See, for e.g. Debates, March 31, 1969, p. 7289-300, re Ste. Scholastique. Debates, March 31, 1969, p. 7299; such allegations could, however, be the subject matter of a substantive motion, but to be given precedence, would have to contain a "charge" of a serious nature. See infra, Conduct of a Member: Raising Complaints Against Members in the House of Commons. Debates, November 18, 1981, p. 12897-9. J.R,. Odgers, Australian Senate Practices (Canberra: Australian Government Publishing Service, 1991), 6th ed., p. 1003.

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1.

Privileges are enumerated and known and thus may be breached, whereas contempts are not enumerable.

2.

The extent of the law of privilege is a proper subject of inquiry for a court, whereas the House of Commons is the judge as to whether in a particular case a breach of privilege or a contempt of the House has been committed.

3.

Contempt is more aptly described as an offence against the authority or dignity of the House.25

4.

While privilege may be codified, contempt may not, because new forms of obstruction are constantly being devised and Parliament must be able to invoke its penal jurisdiction to protect itself against these new forms; there is no dosed list of classes of offences punishable as contempt of Parliament.

May's distinction May distinguishes between breaches of privileges and contempts in the following way: When any of these rights and immunities, both of the Members, individually, and of the assembly in its collective capacity, which are known by the general name of privileges, are disregarded or attacked by any individual or authority, the offence is called a breach of privilege and is punishable under the law of Parliament. Each House also claims the right to punish actions which, while not breaches of any specific privilege, are offences against its authority or dignity, such as disobedience to its legitimate commands or libels upon itself, its officers or its Members. Such actions, though often called "breaches of privilege" are more properly distinguished as contempts.26

Halsbury's distinction Halsbury states the difference this way: The power of both Houses to punish for contempt is a general power similar to that possessed by the superior courts of law and is not restricted to the punishment of breaches of their acknowledged privileges. Any act or omission which obstructs or impedes either House in the performance of its functions, or which obstructs or impedes any Member or officer of the House in the discharge of his duty, or which has a tendency to produce such a result may be treated as a contempt even though there is not precedent of the offence. 25 See Debates, October 10, 1989, p. 4457-61. See also Alberta Debates, May 12, 1993, p. 2722-3 where "partial 93-94 budget detail was released prior to being tabled in this House." 26 19th ed., p. 68.

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Certain offences which were formerly described as contempts are now commonly designated as breaches of privilege, although that term more properly applies only to an infringement of the collective or individual rights or immunities of one of the Houses of Parliament.27 To put it yet another way, the House of Commons and its Members have certain enumerated rights and immunities; these have been discussed in Chapters 3, 9, and 11. In the event a situation arises that attacks or disregards one of these rights and immunities, the House may treat that as a breach of its privileges. For example, if a Member of the House was vigorously pursued for not answering a subpoena while the House was in session, the Member could quite properly raise that in the House, and the House would have authority to take action by virtue of its penal jurisdiction. In addition to these enumerated rights and immunities that are necessary for the House and its Members to perform their legislative function, the House of Commons may also examine any direct or indirect act or omission other than an attack or disregard of the enumerated rights and immunities, and if the House is of the view that any such act or omission tends to obstruct or impede the House or its Members in their parliamentary functions, the House may declare such act or omission to be a contempt of Parliament and invoke its penal jurisdiction, whether or not there is a precedent.28

Contempt cannot be codified : contempt has no limits This is why it is said that the "privileges" of the House cannot be exhaustively codified; there are many acts or omissions that might occur where the House would feel compelled to find that a contempt has taken place, even though such acts or omissions do not amount to an attack on or disregard for any of the enumerated rights and immunities. This is why, historically, there has been some confusion about the expressions "breach of privilege" and "contempt." It is because of the practice that developed to punish a "breach of privilege" irrespective of whether it involved the violation of any privilege or not; that is to say, any enumerated privilege or right and immunity (H.C. 34 (U.K.) (1967) p. 89-91). As a Speaker said, "...the dimension of contempt of Parliament is such that the House will not be constrained in finding a breach of privileges of Members, or of the House. This is precisely the reason that, while our privileges are defined, contempt of the House has no limits. 27

28

Halsbury's Laws of England, 4th ed., vol. 34, p. 608. The contributing editor to this aspect of Halsbury was the late Sir Richard Barlas, K.C.B., O.B.E., former Clerk of the House of Commons, Westminster. May, 21st ed., p.115.

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When new ways are found to interfere with our proceedings, so too will the House, in appropriate cases, be able to fmd that a contempt of the House has occurred."29

Member gets benefit of doubt In the final analysis, in areas of doubt, the Speaker asks simply: Does the act complained of appear at first sight to be a breach of privilege...or to put it shortly, has the Member an arguable point? If the Speaker feels any doubt on the question, he should...leave it to the House.3° Thus, the Member is entitled to receive the benefit of the doubt.31 When the Speaker finds there is unanimous consent he will also put the motion.32 In Chapters 3, 9, and 11 we examined the extent of the privileges of Members of the House. An examination will be made here of the acts and conduct that amount to a breach of these privileges, or contempt of the House.

Description of a "question of privilege" raised in the House of Commons 1.

The Member, having given the necessary notice, rises immediately before the announced business of the day is to start, which is after the Question Period but before Orders of the Day and says, "Mt Speaker, I rise on a question of privilege."

2.

The Member briefly sets out the facts on which he relies in order to satisfy the Speaker that there is a prima facie case and then concludes by saying, "Should you find that I have a question of privilege, I am prepared to move the necessary motion."

3.

If the facts concern another Member who is not present, the Speaker may but will not necessarily postpone consideration of the matter until the Member is present and replies.33 There would be no need to hear the other Member if the Speaker was to forthwith fmd that there was no prima facie case of privilege but that other Member is usually permitted a reply if he is present in the House.

29

Debates, October 29, 1980, p. 4214. Debates, March 21,1978, p. 3975, where the Speaker cites the report of the U.K. Select Committee on Parliamentary Privileges, H.C. 34 (1967), p. 111. See also Debates, October 10, 1989, p. 4457-61. Debates, October 24, 1966, p. 9004-5: Journals, March 27, 1969, p. 853. Journals, May 14, 1970, p. 803; July 7, 1980. See Debates, May 26,1981, p. 9922-4.

30

31 32 33

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4.

The Speaker will usually only entertain further debate from other Members if he is satisfied that the facts put forward may affect privilege (see text at note 14, supra).

5.

The Speaker will normally reserve his decision if there has been much debate and the matter is an involved one.

6.

If the Speaker rules that there is not a prima facie question of privilege, the matter ends there and no further proceedings will take place under the heading of privilege, without prejudice to that or any other Member raising the matter again in the future if additional facts come to light.

7.

If the Speaker rules that there is a prima facie question of privilege, he will entertain and put a motion (which is amendable) formally to the House to refer the matter to committee. The debate begins immediately, because it takes precedence.

8.

After the debate is concluded, or if there is no debate, the question on the motion is put.

9.

If the motion is defeated, as a procedure seeking precedence to debate the matter in question it is of course ended, but if the motion is carried, the matter is then usually referred to the Committee on Privileges or may be dealt with immediately by the House. (See case of Ian Waddell, M.P., infra this chapter, under Called to the Bar of the House.)

10. The Committee on Privileges makes its report, which should indicate whether in its opinion a contempt or breach of privilege has occurred and whether or not any further action should be taken.

Acts or conduct constituting breach of privilege or contempt Improper interference with Members' privileges Improper interference with the personal rights of the Members of the House of Commons—i.e. freedom of speech, freedom from arrest in civil matters, and freedom from attending as a witness or as a Member of a jury in a court—may constitute a breach of privilege, resulting in the offender being held in contempt of the House and ultimately subjecting him to the penal jurisdiction of the House. For example, as early as January 8, 1794, in the Lower Canada House of Assembly it was held that persons responsible for the civil arrest of a Member are in contempt of Parliament,34 notwithstanding that one of those persons was the Speaker acting as counsel for one of the litigants. Similarly, if a Member was threatened for what he said in the House, that would amount to a breach of the Member's privilege of freedom of speech.

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Improper interference with corporate privileges When the corporate rights of the House35 are interfered with in some way, the "breach of privilege" could result in the offender being held in contempt of the House and ultimately being subjected to the penal jurisdiction of the House. For example, included among the corporate rights of the House is the right to require the attendance of witnesses and the further right to expect these witnesses to answer questions put to them. As a result, Mr. R.C. Miller was found to be in contempt of Parliament and jailed on February 20,1913 for failing to answer questions put to him 36

Contempt is whatever a House finds as contempt Another category relates to matters of contempt that are not a breach of any enumerated right. Because the House of Commons has the penal right of the old High Court of Parliament, it has the right to find a person in contempt for "disrespect to that which is entitled to legal regard."37 And, like contempt of court, "it is so manifold in its aspects that it is difficult to lay down any exact definition of the offence."38 Therefore, while it is not possible to give any definition of contempt unrelated to any enumerated privilege or right generally: 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 "parliamentary" 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 for the offence.39

On March 12, 1996, one Member accused another of having been involved in "seditious" activity for having issued a general press release 34 See Chapter 11, case of Young: Journals, Lower Canada, January 8, 1794, p. 92, and January 10, 1794, p. 102. 35 See Chapter 11. 36 Debates, February 20, 1913. 37 Oswald, Contempt of Court,CommitalandAttachmentandArrest Upon Civil Process in the Supreme Court of Judicature, 3rd ed., ed. A.G. Forster Boulton (Toronto: Canada Law Book Co., 1911), p. 1. A report by Justice (British Section of the International Commission ofJurists) London: Stevens & Sons Limited, 1959 (Justice) had this to say about contempt of court: "We do not think that we can improve on the definition suggested in Oswald's Contempt of Court (1910, 3rd ed.), p. 6: 'To speak generally, contempt of court may be said to be constituted by any conduct that tends to bring the authority and administration ofthe law into disrespect or disregard...'." See also Law Reform Commission of Canada, Working Paper 20, 1977, p. 5. 38 Ibid., Justice, p. 5 39 H.C. 101 (1938-9), p. xii (UK); May, 21st ed., p. 115; Debates, October 10, 1989, p. 4457-61.

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that was also faxed to military bases in the province of Quebec, four (4) days before the Quebec referendum of October 30, 1995. The press release included the following paragraph: "The day after a Yes win, Quebec should immediately create a Department of Defence, the embryo of a major state and offer all Quebecers serving in the Canadian Forces the chance to integrate into the Quebec Forces." The Member who issued the press release was also the vice-chairman of the Commons Committee on National Defence and the defence critic for the Bloc Quebecois, and the press release was issued on the letterhead of the Official Opposition. The matter was referred to committee on March 18, and the ommittee majority (there were two (2) dissenting opinions), in its report to the House on June 18, 1996, concluded that: The list of what constitutes contempt is not closed.... Mr. Jacob acted imprudently in sending out this particular press release, and demonstrated extremely poor judgment. He contravened the traditional arm's length relationship that exists between Parliament and the Canadian Armed Forces. In short, his actions were inappropriate for a Member of Parliament. Repugnant as the ideas contained in Mr. Jacob's communiqué were to many Canadians, the issue is whether the sending of it constitutes a contempt of Parliament... After serious reflection, and based on all of the testimony and evidence that we heard, the Committee has concluded that the communiqué of October 26, 1995 does not constitute a contempt of the House of Commons. While Mr. Jacob's actions were ill-advised, they do not amount to contempt or a breach of parliamentary privilege. We do not countenance the actions of Mr. Jacob in sending out a communiqué in the terms it was....

Assaulting, threatening, challenging, intimidating or molesting Members and officers of the House Members are entitled to go about their parliamentary business undisturbed. The assaulting, menacing, or insulting of any Member on the floor of the House40 or while he is coming or going to or from the House, or on account of his behaviour during a proceeding in Parliament, is a violation of the rights of Parliament.41 Any form of intimidation (it is a crime to commit "an act of violence in order to intimidate the Parliament of Canada")42 of a person for or on account of his behaviour during a

40

41

42

One Member of the Assembly of the Province of Canada struck another in the face on the floor ofthe House, which was held to be a breach of privilege. Journals, Province of Canada,1865 (January session, p. 162). See also Debates, June 19, 1995, p. 14091-2. Bourinot, 4th ed., p. 55; Legislative Assembly Journals, Province of Canada (1850), p. 160, 164; (1851), p. 192-3; (1854), 351-5; Journals (1880), p. 24 and 58; May, 21st ed., p. 126-8. Criminal Code, R.S.C. (1985), C-46, s. 51.

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proceeding in Parliament could amount to contempt.° This does not include a Member's appearance before the Canada Labour Relations Board on behalf of an Air Canada employee" when counsel for Air Canada submitted to the board that Members of Parliament should not interfere personally in the relationship between employee and employer in Air Canada, particularly in proceedings before the Board. Furthermore, whatever avenue he might otherwise have, a Member of the House of Commons who claims to have been assaulted by a member of the Canadian Radio-television and Telecommunications Commission, before whom he is appearing on behalf of his constituents, does not have a valid question of privilege45 principally because he was not then engaged in a "proceeding in Parliament," although he was performing his duties and acting in the capacity of a Member of Parliament. Thus, to bring an action against a Member for what he said in the House or in committee is a breach of the privilege of freedom of speech, because it is declared that "freedom of speech and debates...ought not to be questioned in any court out of Parliament."46 As recently as 1958, the Judicial Committee of the Privy Council held that the British House of Commons could quite properly treat as a breach of privilege the issue of a writ against a Member of Parliament in respect of a speech or proceeding by him in Parliament.47 In practice, however, no case has arisen in the Canadian House of Commons of a Member complaining of a writ being issued for remarks made during a proceeding in Parliament. Legal proceedings against a Member which on examination are not based on "proceedings in Parliament" may not form the basis of a prima facie case of privilege.48 It went unnoticed in the House of Commons when, in 1970, the Prime Minister and Minister of Energy, Mines and Resources were sued for, inter alia, remarks made in

43

44 45 46

47 48

Aprima facie case was found when a Member was offered an advantage if he behaved in a manner acceptable to the Post Office and conversely threatened with a disadvantage if his office failed to co-operate (Debates, February 20,1984, p. 1559-61), but the motion was voted down. An allegation that a CBC TV producer intimidated a witness with a threat of litigation for having used copyright material in a committee presentation was found by the Speaker to be a prima facie case of privilege (Debates, December 4, 1992, p. 14631) and the matter was sent to committee. The committee reported on February 8,1993, and the House concurred in the report — February 25, 1993. The committee found that there was not sufficient evidence that a witness had been intimidated but that the Speaker should write to the CBC and to the TV producer advising them of the contents of the report. Debates, February 14 and February 20, 1975. Debates, November 2, 1978. See also Debates, November 17, 1987, p.10887-9. Bill of Rights, 1689, 1 Will. & Man, sess. 2, c. 2, art. 9 (U.K.); see Bourinot, 4th ed., p. 57. See Saskatchewan Legislative Assembly Journals, April 26, 1984 - May 1,1984, p. 190-2. Re Parliamentary Privilege Act, 1770, [1958] AC. 331 (PC.). Debates, July 18, 1988, p. 17672-4.

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the House of Commons." In 1978, the Member for Capilano claimed privilege, albeit unsuccessfully, when he said in the House that he was sued for remarks he made on a radio talk show during which he repeated the substance of remarks he had made earlier while engaged in a parliamentary proceeding.53 A Member speaks outside the House at his peril. A Member who is intimidated or molested for what he says outside a proceeding in Parliament cannot successfully claim privilege, because in order for the mantle of privilege to protect the Member while he is speaking, the speaking must be during a proceeding of Parliament; on the other hand, the common-law defences are available to the Member if applicable.51 Similarly, to be considered a matter of privilege, any molestation or intimidation of the Member must relate to his parliamentary duties unless the circumstances arise within the precincts when the House is sitting,52 in which case the act alone of assaulting any person within the precincts is the gist of the contempt.53 Officers of the House of Commons while in the execution of their duties receive the protection of the House in the event they are interfered with, molested, intimidated, or assaulted." Statements in the Saskatchewan Legislative Assembly attacking the competence and credibility of officers of the Assembly, and that tend to obstruct and intimidate those officers in the conduct of their duty to the Assembly, were found to constitute a prima facie case of privilege by the Speaker.55 In the case of civil actions against an officer for executing an order of the House of Commons, for well over a century in the U.K. this protection has been effected by having the officers of the Crown undertake the defence of the officer in question rather than by finding the person responsible in contempt." In Canada, there is no recorded instance of an officer of the House of Commons being sued for actions undertaken pursuant to an order of the 49

Roman Corp. v. Hudson's Bay Oil & Gas Co., 18 D.L.R. (3d) 134, aff'd 23 D.L.R. (3d) 292, which was aff'd on other grounds, 36 D.L.R. (3d) 413 (S.C.C.). 50 Debates, May 2 and 15, 1978, p. 5069, 5411 respectively. 51 See Chapter 6. 52 See also Chapter 10. 53 See the case of Mr. Gerin-Lajoie, the employee of Library of Parliament, Journals, August 1, 1886, p. 257-63 (Can.); see ident, Index 1841-51 under "Precincts". 54 Lower Canada Journals (1823-4), p. 1134; Bourinot, 4th ed., p. 57; Beauchesne, 4th ed., p. 99; May, 21st ed., p. 129-30. See case of interfering with the Sergeant-at-Arms and the Mace, Debates (October 31, 1991), p. 4309-10. 55 Journals, Saskatchewan Legislative Assembly, May 19, 1989, p. 122-3; and May 23, 1989, p. 125-6, concerning the provincial Auditor General; June 24, 1987, p. 78-9, concerning the Legislative Counsel and Law Clerk. 56 May, 21st ed., p. 131.

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House of Commons.57 In the unlikely event an officer of the House of Commons executes an illegal order of the House of Commons, the House of Commons would not be in a position to protect the officer in the sense that the order, being illegal, would not exempt the officer from civil action.58

Contempt respecting petitions and other documents While Standing Order 36(3) sets out that "Members presenting petitions shall be answerable that they do not contain impertinent or improper matter," a petitioner nevertheless could, in a proper case, be held in contempt for delivering to a Member, whether or not it is presented in the House, a petition containing abusive matter, notwithstanding that the petitioner would be immune from civil action.59 Forgery or fraud in the preparation of petitions could be treated as a matter of contempt since that would also constitute an affront to the House of Commons.60 Similarly, should any person present documents to a committee of the House of Commons that have been forged, falsified, or fabricated with intent to deceive such committee or the House, or to be privy to such forging or fraud, this will constitute contempt of Parliament because it is an obvious affront to the House of Commons to present it with such documents. The House of Commons is not only entitled to but demands the utmost respect when material is placed before it for its scrutiny, investigation, or study.61

Obstructing or interfering with the Member in his parliamentary duties A combination of

57

58 59 60 61

1.

A letter received on December 4, 1973 by the Member for Northumberland—Durham from the then Solicitor General stating that the RCMP did not make a practice of opening mail;

2.

Subsequent questions in the House by that same Member on November 9, 1977 to the then Solicitor General following upon the statements of the Solicitor General regarding mail openings by the RCMP providing a sufficient direct

The cases involve provincial legislatures. In Landers v. Woodworth (1878), 2. S.C.R. 158, Landers was sued as Speaker, and in another Nova Scotia case, Fielding v. Thomas, [1896] A.C. 600, Premier W.S. Fielding, along with other Members of the legislature, was sued as a Member who voted to expel the plaintiff. See Stockdale v. Hansard (1839), 9 Ad. & EL 1 at 114. Lake v. King (1667), 1 Saund. 120. See May, 21st ed., p. 756, 118. May, 21st ed., p. 118, Bourinot, 4th ed., p. 55-6.

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relationship with the proceedings in Parliament to enable the Speaker to find that the letter became a "proceeding in Parliament" for the purpose of privilege; and 3. Later remarks before a Royal Commission by the former Commissioner of the RCMP that "the practice was very often Ministers' letters were not exactly drafted on precise statements of facts," permitted the Speaker in 1978 to find a prima facie case of contempt where the RCMP were alleged to have deliberately misled a minister of the Crown, who, as a consequence, innocently misled the Honourable Member for Northumberland—Durham, resulting in "an attempt to obstruct the House by offering admittedly misleading information."62 After debate, the House voted down the motion to refer the matter to the committee.63 Thus, before the House will be permitted by the Speaker to embark on a debate in such circumstances (i.e. find aprima facie case and permit a motion to be moved), an admission by someone in authority, such as a Minister of the Crown or an officer of a department, an instrument of government policy, or a government agency, either that a Member of the House of Commons was intentionally misled or an admission of facts that leads naturally to the conclusion that a Member was intentionally misled, and a direct relationship between the misleading information and a proceeding in Parliament, is necessary." In other words, it must be shown that the Member was obstructed in his work relating to a proceeding in Parliament and not simply while he was performing his representative duties in his constituency or in other myriad areas (which is the wont of Members of the House of Commons), nor simply in his private capacity. Similarly, a Member of the Senate or the House of Commons may not complain if he is subjected to the administration of criminal justice (save as a witness or for jury duty) for activities unrelated to a proceeding in Parliament, and even for parliamentary duties in certain circumstances.66 Nor may the Member complain if he is subjected to the administration of civil justice in respect of matters unrelated to a proceeding in Parliament, save as a witness, for jury duty, and civil arrest.67 (The only exception is where he is subjected to the administration of criminal or civil justice within the precincts; see 62

Debates, November 9, 1978, p. 964-6; December 6, 1978, p. 1856-7. Journals, December 7, 1978, p. 228-9. 64 See Debates, February 9, 1995, p. 9426. 65 Creevey unsuccessfully complained to the U.K. House of Commons for the prosecution for criminal libel in 1812. See supra, Chapter 3. 66 See Chapter 8, re McGreevy. 67 See Debates, May 2, 1978, p. 5069 and May 15, 1978, p. 5411; Debates, July 18, 1988, p. 17672-4. 63

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Chapter 10.) A fortiori, candidates at a federal election, whether or not they are Members of a previous Parliament, have no mantle of parliamentary privilege that would permit the House to deal with their alleged surveillance by federal security forces because, inter alia, that is unrelated to a parliamentary proceeding.68

Test: Obstruction must be connected to parliamentary work (parliamentary proceeding) and be occasioned by improper means Whether a parliamentary privilege is violated depends on the nature and extent of any particular privilege claimed by Parliament in relation to the circumstances of the time, the underlying test in all cases being whether the right claimed as a privilege is one that is absolutely necessary for the due execution of the powers of Parliament.69 Therefore, all interferences with Members' privileges of freedom of speech, such as editorials and other public comment, are not breaches of privilege even though they influence the conduct of Members in their parliamentary work. Accordingly, not every action by an outside body that may influence the conduct of a Member of Parliament as such could now be regarded as a breach of privilege, even if it were calculated and intended to bring pressure on the Member to take or to refrain from taking a particular course. But any attempt by improper means to influence or obstruct a Member in his parliamentary work may constitute contempt. What constitutes an improper means of interfering with Members' parliamentary work is always a question depending on the facts of each case. Finally, there must be some connection between the material alleged to contain the interference and the parliamentary proceeding." This principle applies equally to a question of privilege based on allegations that the staff of the House of Commons or those regularly working with the House or committees, such as interpreters, are interfering with or obstructing this work by failing to report for work because they are on legal strike.71 While the work of committees may thus be frustrated, this does not constitute an improper interference or obstruction so as to invoke the contempt jurisdiction of the House. Similarly, while a Member's duties and responsibilities may be "interfered with" when he is denied visiting privileges in order to tour a federal penitentiary,72 or when it is suggested before the Canada Labour Relations Board that he should not interfere personally on behalf of Air 68 69 70 71 72

Debates, May 15, 1978, p. 5410. Debates, October 29, 1980, p. 4213; Pachauri, p. 100; H.C. 118 (1946-7), para. 10. Ibid. Debates, November 4, 1980, p. 4406. Debates, April 19, 1971, p. 5338.

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Canada employees," or when the Armed Forces forbids servicemen to communicate with Members of Parliament74, such situations do not constitute a question of privilege because they do not relate to the Member's parliamentary work but rather to his constituency work or other work in his official capacity as a Member.

Obstructing or interfering with persons other than Members and officers All persons who have business with the House of Commons receive the temporary protection of the House during the time they are en route to the House of Commons or to the place of the parliamentary proceedings with which they have business, while they are involved and taking part in the parliamentary proceeding" and while they are returning from the parliamentary proceeding. This includes witnesses who appear before committees, whether summoned or invited, counsel to witnesses, petitioners delivering petitions to Members of Parliament, and persons involved in advancing the cause of a private bill to be discussed.76 For example, whether contempt of the House had been committed by tampering with a witness would depend on the facts of each case.77 Accordingly, if a witness is sued for what he said before a committee of the House of Commons, the House could hold the plaintiff in contempt, notwithstanding that the witness may claim privilege of Parliament in the court proceedings.78 Similarly, the House could find in contempt anyone who sued a petitioner for delivering a petition to a Member of the House of Commons. However, allegations that there has been interference with the ability of Members of the Armed Forces to communicate with Members of Parliament (with impunity in respect of the military hierarchy)79 does not constitute a question of privilege because the serviceman is not then engaged in a proceeding in Parliament 80 While so engaged in a parliamentary proceeding, and en route to and returning therefrom, persons having business with the House of Commons enjoy freedom from civil arrest and the freedom from attending as a witness or as a juror in a court matter; therefore, any improper interference may amount to contempt. This is because the business of the 73 74 75 76 77 78 79 80

Journals, February 20, 1975, p. 308-10. Debates, June 2, 1981, p. 10164, 10168. See further Debates, Legislative Assembly of Alberta, June 19, 1989. See Chapter 11. Bourinot, 4th ed., p. 58. H.C. 84 (1935) (U.K). See Chapter 3 and Coffin v. Donnelly (1881), 6 Q.B. 307. Debates (1974-5-6), p. 278-9, 342-4, 375; June 2, 1981, p. 10164, 10168. Debates, June 2, 1981, p. 10164, 10168.

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House in which they are involved, not merely as spectators but as participants, such as witness, counsel, petitioner, etc., is, by its nature, of the highest public interest. Thus, by the lex parliamenti, the House of Commons has the power to protect them. As in the case of the Member, however, they enjoy no immunity from arrest in criminal matters under any circumstances except while actually engaged in a proceeding in Parliament. There do not appear to be any Canadian precedents of persons being so obstructed; yet, because the House of Commons need not be so constrained by lack of precedent, it may in its judgment fmd a person or persons in contempt after an examination of the facts in any particular case.81

Corruption in execution of functions of Members of House of Commons Standing Order 23 of the House of Commons provides that "The offer of any money or other advantage to any Member of this House, for the promoting of any matter whatsoever depending or to be transacted in Parliament, is a high crime and misdemeanour, and tends to the subversion of the Constitution." Acceptance of a bribe by a Member would also constitute contempt (Criminal Code, s. 119(1)). The essence of bribery in Parliament is aptly described in the Standing Order, in that it "tends to the subversion of the Constitution." In 1873, the House of Commons took into custody Alderman Heney of the City of Ottawa when a Member alleged that he had been offered a bribe by Heney. Heney was released a few days later by virtue of a prorogation and nothing further was done in the following session.82 In 1962, a former Member of the House of Commons, was convicted of unlawfully and corruptly agreeing in 1956 to accept money from one Bergeron for the use of his influence in his official capacity as a Member of Parliament in respect of the sale of property owned by Bergeron to the Government of Canada, contrary to s. 100(1)(a)(ii) (now s. 12(1)(a)(iii)) of the Criminal Code. Bergeron had previously been tried twice for the same offence but on both occasions the jury disagreed. That the offence is considered serious is demonstrated by the Court of Appeal of Ontario setting aside a suspended sentence and probation for two years and substituting therefor a sentence of five years. The standard of conduct imposed by the court is as follows: 81

Bourinot, 4th ed., p. 58; Debates, October 10,1989, p. 4457-61. Debates, November 17, 1987, p. 10887-8. Journals (1873, 2nd sess.), p.134, 139.

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The responsibility of a Member of Parliament to his constituency and to the nation requires a rigorous standard of honesty and behaviour, departure from which should not be tolerated. If, in violation of their responsibilities the services of Members of Parliament can be bought then justice and freedom cannot survive, nor can this nation long survive as a place where free men can live." While Standing Order 23 refers only to offering money for the promotion of any matter before Parliament, the House would treat equally severely the acceptance of money by a Member for anything a Member may do as part of his parliamentary duties. In the criminal proceedings involving Bruneau's actions as a Member, in order to obtain a conviction it was not necessary to show that he accepted money for something he did as part of his parliamentary duties." In the fmal analysis, the House of Commons may set whatever standard it sees fit in respect of the conduct of a Member (see Chapter 11).

Misbehaviour before the House or a committee All kinds of misconduct in the presence of the House or of a committee may be treated as contempts on the ground should they be an affront to the dignity of the House. Serving a court process within the precincts, such as writ of summons, or a subpoena on a day the House is sitting constitutes a contempt.85 Misconduct or misbehaviour in the traditional sense would include acts that disrupt or have a tendency to disrupt or interrupt the House or committees by such acts as shouting, throwing objects, or waving placards.88 Doing these same things within the precincts while the House is sitting could also amount to contempt. Many instances have occurred where disorderly conduct has taken place, even to the extent of temporarily87 suspending the House, but the general position of the House is that the dignity of the House would be best served by taking no action in such cases. The penal jurisdiction of the House is invoked as sparingly as possible and only where absolutely necessary. For example, while instances88 of persons disturbing the proceedings by hurling objects onto the floor of the House from the galleries may have quickly led to a successful motion of censure and even

83 84 85 86 87 88

R. u. Bruneau, [1964] 1 C.C.C. 97 at 103-4. See also Bourinot, 4th ed., p. 57. See Chapter 10. May, 21st ed., p. 115-6. See Debates, April 11, 1990, p. 10485-9; November 6, 1990, p. 15177-81. See Debates (1969-70), p. 6796. Debates (1969-70), p. 6796; (1972), p. 3644, 3695, 3724; (1973-74), p. 9096-7; (1974), p. 2114.

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imprisonment, the House in its wisdom chose to ignore it, and in only two instances did the local Crown Attorney decide to prosecute.89 Also, the House has been reluctant to take action against those attempting to disrupt the proceedings in this way because of the attendant publicity it would provide them. However, the House may take stronger measures as a result of a recent committee report recommending that those responsible should be punished or charged.° Any persons appearing before a committee of the House are expected to conduct themselves properly, whether witnesses, counsel, petitioners, parliamentary agents, or the general public. Untruthful, equivocating, prevaricating, insulting, and trifling actions have been held in the U.K. to be contemptuous, as has the refusal to answer questions.91 When Mr. R.C. Miller refused in 1913 to answer questions put to him in the committee and then in the House, he was jailed92 by order of the House executed by the Speaker's warrant, and when, 100 years ago, Mr. MacDonnell, a visitor who had been invited to sit on the floor of the Chamber (the practice then), called out to a Member of the House that he was a "cheat and a swindler," he was twice removed from the floor of the Chamber. He subsequently repeated it in a brief note to the Member. His personal apology to the Speaker from the Bar of the House to which he had been summoned to appear undoubtedly saved him from severe reprimand.93

Disobedience to statute law relating to the Houses of Parliament or to the rules or orders of the House or of a committee Disobedience to rules or orders represents an affront to the dignity of the House, and accordingly the House could take action, not simply for satisfaction but to ensure that the House of Commons is held in the respect necessary for its authority to be vindicated. Without proper respect, the House of Commons could not function. Thus, disobedience may well be considered contempt, bearing in mind that the House will, in mitigation of any punishment that may be imposed, be mindful of the surrounding circumstances. 89

See supra, Chapter 7. The Speaker found a prima facie case where there was a recent disturbance and the matter was referred to the Committee on Privileges. It reported to the House March 6, 1991. There was no motion to concur. However, the Committee recommended that those responsible for disturbances should be punished or charged (the "Macaroni" caper). 91 May, 21st ed., p. 116. 92 Journals, February 20, 1913. 93 Journals, May 12-13, 1879. The U.K. Debates of May 24, 1830 show that a stranger, William Clifford, who was put in custody on May 21,1830 for improper conduct in the gallery, was discharged because, in the words of Mr. Robert Gordon, M.P., Mr. Clifford was "labouring under incorrect views upon certain subjects which renders him in my opinion, a fit subject for the mercy of the House." 90

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Disobedience of rules or orders is an obvious contempt94 and would include refusing to attend at the Bar of the House after the House had so ordered, refusing to personally attend and to produce the documents requested by a committee (the formal contempt would only be recognized when the committee reported the incident to the House and the House took action) or otherwise disposing of them and refusing to answer questions put by the committee or by the House 95 Statute laws affecting the House of Commons, such as tabling of documents, may constitute contempt if not adhered to.96

Obstructing, interfering with, or preventing execution of orders of House or committee Obstructing, interfering with, or preventing execution or orders of the House or of a committee would be akin to aiding and abetting a person to commit an offence. Taking action to prevent an order of the House from being carried out could result in contempt because it also represents an affront to the authority of the House.97

Conduct of a Member: raising complaints against Members in the House of Commons A second procedure, akin to privilege because it would entail the disciplinary power of the House and would gain the same precedence in debate, relates to the conduct of a Member. A Member of the House of Commons who, for example, has admitted to deliberately misleading the House would probably forthwith be the subject of a motion for contempt (see (U.K.) C.J. (1962-3), p. 246). A Member who has published an improper reflection on a Member would also forthwith be the subject of a question of privilege,98 but otherwise, "Simple justice requires that no Honourable Member should have to submit to investigation of his conduct by the House or a committee until he has been charged with an offence"; it must be conduct that either amounts to a breach of privilege, or that 94

In certain circumstances what may appear to be an "obvious contempt" is tempered by and subject to custom and practice (see Debates, June 18,1981, p. 10738, where the order of the House was subject to a practice not referred to in the order). as Debates, February 20, 1913 and see further May, 19th ed., p. 138-140. 96 Debates, April 19,1993, p. 18104-6. The Committee on Privileges so reported June 12, 1993. There was no motion to concur. Parliament was dissolved June 23, 1993. See also J.D., Assemblee nationale, Quebec, 11 mars 1993, p. 5292-4. 97 See May, 21st ed., p. 117. See Debates, February 28,1991, where the Solicitor General said he was prevented by the Privacy Act from complying with an order of Committee on Justice and Solicitor General to produce the requested reports. 98 The gist of using unparliamentary expressions in the House is that such conduct is out of order, unless and until the Member "charges" the other by means of a substantive motion under Standing Order 42(1). But when a Member says the same expression outside the House, the gist of that conduct, if it is raised in the House, is whether the expression amounts to contempt of the House, which is the proper subject of a question of privilege.

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disqualifies a Member, or that amounts to contempt of the House, e.g. "Taking of an office of profit, entering into contracts with the government which involve a pay or advantage of the Member, in both of which cases there are elements ofpersonal gain; conviction of treason or other felonies or crimes."99 To allege that a Member has misled the House is a matter of order rather than privilege and is not unparliamentary,199 whether or not it is qualified by the adjective "unintentionally" or "inadvertently." To allege that a Member has deliberately misled the House is also a matter of "order," and is indeed unparliamentary. However, deliberately misleading statements may be treated as a contempt.101 In the Canadian House of Commons, Members attempt to get such matters before the House on a "question of privilege" when there is merely an allegation of contempt rather than an admitted matter and the problem arises because the use of unparliamentary language is not permitted in the House and therefore questions of privilege and motions in support must be purged of such language.102 If the conduct of a Member is to be formally discussed or debated in the House of Commons, such as a charge of entering into a contract with the federal government for a fee, or the propriety of the Assistant Deputy Chairman of Committee of the Whole participating in a partisan debate in the House,103 or of deliberately misleading the House, it cannot be done on a "question of privilege," because until admitted or so found by the House, as the case may be, such allegations are unparliamentary and cannot be uttered, and the fact that the accused Member denies it is irrelevant. Nor can it simply be done in passing while one is embarked on a debate on a motion, for example, the second reading of a bill; nor could the House discuss such a subject by way of amendment to any motion. As was said in the U.K. House of Commons in 1965, "If you wish to make an abusive accusation about the conduct of another Hon. Member, you should argue the matter by tabling a substantive motion to enable you to do it. In other circumstances, it would not be in order."194 The conduct of a Member may only be discussed in the House of Commons by way of a substantive or distinct motion, i.e. a self-contained proposal submitted for the approval of the House and drafted in such a 99

Pallett case, Journals, June 19, 1959, p. 581-6; followed, Journals, November 10, 1967, p. 495. 100 Debates, March 7, 1974, p. 257. 101 (UK.) C.J. (1962-63), p. 246; May, 21st ed., p. 119. The Member admitted to the House that he had lied to the House. 102 Debates, February 28, 1978, p. 3293-5, also explaining an earlier ruling of April 19, 1977, p. 4766 103 See the interesting exchange in Debates, November 26, 1985, p. 8821-4. 104 Speaker, U.K. Debates, June 15,1965, c. 245, 714. See May, 21st ed., p. 180-1. See also Alberta Hansard, April 28, 1993, p. 2464

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way as to be capable of expressing a decision of the House. Such a motion may contain the "abusive accusation" that would otherwise be unparliamentary language.1" Furthermore, the Member charging another Member's conduct "ought to have the burden of taking it before the Committee."106 However, "there is no precedent at all which supports the thesis that a Member, by making such a charge, puts his seat on the line...in order to make such a charge."107 An example in Canada of the misconduct of a Member being called into question and the motion being permitted to be moved and given precedence occurred on June 4, 1956 in respect of the conduct of the Speaker.108 Notice of the substantive motion was given Friday, June 1, 1956, and it was placed on the Monday Order Paper under "Motions," taken up immediately and placed again under "Motions" the next day.1°9 On June 19, 1959, the Leader of the Opposition was denied the opportunity of moving his substantive motion, because while it dealt with the conduct of a Member, the motion did not set out a serious accusation or charge 110 In Canada, in the Daoust case of 1876, the House of Commons reached back to an 1866 conviction for forgery" in respect of which the committee report found that Mr. Daoust had not thereby vacated his seat because a new trial had been permitted and eventually an order of nulle prosequi was entered. TheAnglin case of 1877 involved the Speaker of the day. It turned on the payment of public money and on whether he had accordingly vacated his seat. The Speaker was found to be disqualified. He resigned after prorogation and was re-elected in the by-election during the prorogation and again elected Speaker at the beginning of the session. The notorious Rykert case of 1890 concerned the Member, Rykert, who was accused of using his influence to obtain a valuable timber limit for a friend in the Northwest Territories, for which his wife received $70,000. The 105

106 107 108 109 110

111

Debates, June 14, 1978, p. 6402-4. A substantive motion requires notice and is placed on the Notice Paper and Order Paper. No precedence is given it, however, until the Speaker after debate fords that it involves a "charge". Debates, July 25, 1975, p. 7940. Debates, June 7, 1977, p. 6388; but see infra, note 120, where Guss Porter, M.P., resigned in the Home Bank affair. Journals (1956), p. 692 ("Black Friday"). See Order Paper, June 4, 5, 1956. Journals 1959, p. 581-6 (Pallett case). See Journals, March 16, 18, 1876.

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procedure adopted involved a motion asking for an inquiry into his conduct. The committee reported that his conduct was "discreditable, corrupt and scandalous" (May.5, 1890). Rykert had resigned May 2, 1890, and the committee report was adopted May 12, 1890. An equally infamous case involved the Member McGreevy in 1891. Corruption was alleged and McGreevy refused to answer questions in the Committee.112 He was subsequently expelled by the House113 and charged in criminal court with conspiracy. In 1894,114 a Mr. Turcotte had his conduct with respect to the payment of public moneys investigated to determine whether he had thereby vacated his seat.115 It was alleged that his firm had supplied groceries to the government, for which it had received public money. The motion reads as follows: That the matters therein stated be referred to the Select Standing Committee on Privileges and Elections, to inquire fully into the said allegations, with power to send for persons, papers and records, and to examine witnesses upon Oath or Affirmation and that the said Committee do report the result of their inquiries and whether the said Arthur Joseph Turcotte has vacated his seat. It was successfully amended to delete the last few words relating to "whether the said Arthur Joseph Turcotte has vacated his seat."116 The trifling amount of $5.50 reported in the Auditor General's report, which was said to have been paid by the Crown to a Mr. Schell, M.P., in 1903, compelled Mr. Schell to raise it in the House. A resulting investigation cleared him of any wrongdoing. The report was adopted by the House of Commons.117 Mr. Lanctot, M.P., was accused in 1911 of receiving advantages from government stores and shops, but the committee reported the charge altogether disproved and added that while the accuser (also a Member) honestly believed Lanctot was guilty, had he made a private investigation, he would and should not have made the charges. The House adopted the 112 113 114 115

116 117

Journals (1891), p. 55, 402, 512, 531. Ibid., p. 561. See R. v. Connolly et al (1891), 22 O.R. 220 at 234. Journals (1894), p. 155 More or less the same form and practice is used in the U.K. The case of Sir Stuart Samuel in 1912 in the U.K. House of Commons was based on a motion that a "Select Committee be appointed to consider whether he had vacated his seat as a Member of the House in consequence of the firm of Samuel Montagu & Co., in which firm he is a partner, having entered into transaction with the Secretary of State for India in Council"; UK. Journals, November 22, 1912. Journals (1894), p. 156; the report of the Committee found the charges not proved and it was adopted after debate (Journals, (1894, p. 441-6). Journals (1903), p. 325, 331, 350.

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committee report after rejecting an amendment to adopt the draft minority report.118 In 1924, in the Home Bank case, Murdock, the Minister of Labour, was charged by another Member with withdrawing his money from the bank after receiving information of its impending failure. The committee reported that the offence was entirely disproved. The committee report was adopted.119 In none of the cases cited, from Daoust in 1870 to the Home Bank case in 1924, was the matter raised on a question of privilege, nor was privilege alleged in the motion of referral. The cases involved matters of which the House had notice, having been put into possession of relevant documents. Thus, a Member's conduct may be the subject of a substantive motion after notice in which the use of what is otherwise unparliamentary language may be required to adequately define the charge alleged, be it conduct amounting to contempt, an indictable offence, or generally conduct that would compel the Member to vacate his seat. A plea of guilty to criminal charges of fraud and breach of trust by a Member in connection with public funds that were provided to the Member for Chambly was raised May 25, 1989 as a question of privilege. The Member who raised the question of privilege was prepared to move a motion to expel the offending Member. The Speaker reserved his decision. However, in the interval, the Member resigned May 30, 1989.120 A 1940 U.K. case involved Mr. Boothby, m2,121 who promoted inside and outside the House of Commons the claims of three women on Czech assets in the U.K. on a commission of 10 percent, which amounted to £24,000. The House permitted the motion of Mr. Churchill to appoint a Select Committee to investigate the conduct and activities of Boothby in connection with payments out of assets in the U.K of claims by the 118 119

120

121

Journals (1910-11), p. 224, 362, 400-1. Journals (1924), p. 299, 401, 442. (the report read in part "The evidence taken by the Committee shows that Honourable Jas. Murdock on the 15th of August, 1923 [the Home Bank failed August 17, 1923], drew out of the Home Bank of Canada at its Ottawa Branch, the sum of $4,050, but there is no evidence to show that before so drawing out said sum he had received information as a Cabinet Minister, of the probable failure of said Bank. The evidence also shows that the only information Mr. Murdock had of the probable failure of said Bank was received as a private citizen, from Honourable G.N.Gordon (Deputy Speaker), in a friendly interview on the 9th of August, 1923." Nevertheless, the debates of the day show that the accusing Member, E. Guss Porter, felt compelled to resign his seat under the circumstances. He was defeated in the subsequent by-election later that year.) Debates, May 25, 1989, p. 2219-29; May 30, 1989, p. 2321. See also Debates, December 11, 1992, p. 15083-4, in regard to a Member who was found guilty of the same charges by a jury. U.K. Debates (1940), vol. 365, p. 829.

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government of and institutions in Czechoslovakia "to report... whether the conduct of the Hon. Member was contrary to the usage or derogatory to the dignity of the House or inconsistent with the standards which Parliament is entitled to expect from its Members. »122 "On the authorities it appears open to an honourable Member to confront the House with charges against another Member, implicit in documents in the possession of the House, but in my view the charge must be there."123 Accordingly, where the issue is a serious one related to the conduct of a Member, the usual "privilege" procedure may not always be used. The proceedings may also be initiated by a substantive notice of motion and a charge setting out facts that involve a serious matter or a serious offence that, if true, may require the Member to vacate his seat. The affirmative finding by the committee in the Rykert case and the McGreevy case prompted immediate action. Rykert resigned and McGreevy was expelled following an attempt to resign. With regard to the precedence with which matters respecting the conduct of Members are or should be accorded, the British House of Commons provides opportunity for such matters to be raised at the same time as regular privilege matters are raised under routine proceedings.124 No such opportunity is as formally provided in the Canadian House of Commons, but in the past such matters have traditionally been treated as privilege proceedings for the purpose of the order in which they are to be taken up. It is clear that any motion respecting the conduct of a Member that is accepted by the Speaker for debate will be afforded an immediate opportunity to be dealt with by the House,125 whether or not it deals with a matter as serious as the alleged improper conduct of the Speaker of the House.

Conclusion For any person to say that a Member was guilty of serious misconduct, such as receiving money for promoting a private bill, or for influence peddling, or that the Speaker was not impartial, could amount

122

123 124 125

H.C. 5 (1940-41), para. 56 (UK). The Committee in its report concluded that Boothby's conduct was contrary to the usage or derogatory to the dignity of the House and inconsistent with the standards that Parliament is entitled to expect from its Members. Nevertheless, no further action was taken. Speaker, Journals, June 19, 1959, p. 584. May, 19th ed., p. 346. Journals (1956), p. 692.

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to contempt of Parliament.126 If a Member said this in the House, he would be required to withdraw the words because they are unparliamentary. If the Member wished to pursue this further in the House, he would be required to give notice of a substantive motion citing the conduct and in effect charge the Member in question. Only then would the Speaker permit the conduct of a Member to be debated in the House. If a Member declared outside the House that the Speaker was not impartial, the proper procedure called for would be for another Member to raise a question of privilege citing the declaration or publication and either cite him for contempt or move that it be sent to the Committee.127 In the Pallett case of 1959 involving a Member's conduct unrelated to a proceeding in Parliament, the proceedings were not commenced by a "question of privilege" but rather by a substantive motion for which notice was given and which, in the opinion of the Speaker, did not disclose a charge and thus could not be investigated by the House of Commons. While the Member who moved the motion strenuously argued that it was a proper question of privilege,128 and while the Speaker found that it was not a question of privilege,129 it is suggested that it was a motion relating to the conduct of a Member that simply did not involve a "charge," and in that particular instance it was not a question of privilege because Mr. Pallett's alleged activities were unrelated to a parliamentary proceeding but rather involved one of a Member's other responsibilities, serving his constituents. However, when concerned with the Member's conduct, it is irrelevant that the conduct relates to a proceeding in Parliament. To be able to discuss that conduct in the House, the Member must be "charged" with a serious accusation. Where a Member is charged with what amounts to a contempt of the House, such as deliberately misleading the House, or other matters referred to in the Pallett case of 1959, the Speaker would permit a debate to proceed on the substantive motion that would be required to be moved. On two occasions in the Canadian House of Commons, matters involving a Member's conduct were raised on a "question of privilege" by the Member personally involved but both matters proceeded to

126

127 128 129

Journals, December 22, 1976. See Debates, March 23, 1993, p. 17404-5, where the Speaker found a prima facie case (and the matter was referred to the Committtee on Privilege) The impartiality of an acting Speaker was questioned but the matter was not proceeded with after the complaining Member withdrew his remarks on March 25, 1993. Journals, November 1, 1962, p. 201-2; Debates, November 1, 1962, p. 1169-70. The committee never met to discuss the matter and no report was made to the House. Debates, June 17, 1959, p. 4809. Ibid., June 19, 1959, p. 4931.

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committee with unanimous consent.13° In the event that another Member wished to have these same matters debated, the matters would have to be brought forward on notice and in the form of a "charge" before the Speaker would permit a motion to be moved to refer it to committee. In the sense that the House may discipline Members for improper conduct, the practice relating to taking up the conduct of Members is a matter of privilege.

Determination of eligibility to sit and vote A third procedure akin to "privilege" (because it would be given precedence and discussed without delay) would be the case of whether a Member was disqualified to sit and ineligible to vote. These matters may only be resolved ultimately by the House, and they are "privilege" matters because the House has the power to rule that a Member is ineligible to sit and vote,131 and to expel the Member. The determination of whether a Member is ineligible to sit and vote is a matter to be initiated without notice and would be given precedence by its very nature. Formerly, the issue of disqualification and eligibility to vote was tied in with a motion respecting the conduct of a Member,132 but would probably now be dealt with after the House has decided on the issue of conduct.133

Constructive contempts Publication of false or perverted reports of Debates The U.K. law of Parliament as of 1867 relating to the publication of proceedings still applies to Canada134 if the House wishes to invoke its extreme application; publication of debates in the past in the U.K. have been declared to be a breach of privilege, especially false, partial, or perverted reports of debates. This has not been done in England for some years. that: 130

On July 16, 1971, the U.K. House of Commons formally resolved

Mr. Axworthy's case, Debates, April 22, 1980; Journals (1980), p. 347; Mr. Nielsen's case, Debates, May 14, 1970; Journals (1970), p. 917-8. 131 See Debates, March 1, 1966, p. 1939-40, regarding the right of a Member to vote in the House of Commons. See also Standing Order 20. 132 See supra in respect of the case of Turcotte in 1894. 133 Case of Fred Rose, M.P., Journals (1947), p. 8, where a motion declaring him incapable of sitting and voting (because he was in prison) was adopted; this was also the procedure in the McGreevy case of 1891; see Journals (1891), p. 55-60, 402, 407, 414, 422, 561. See also Standing Order 20. 134 By virtue of s. 18 of the Constitution Act, 1867 and the Parliament of Canada Act, R.S.C. (1985), c. P-1, s. 4.

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Notwithstanding the Resolution of the House on March 3, 1762 and other such resolutions, this House will not entertain any complaint of contempt of the House or breach of privilege in respect of the publication of the debates or the proceedings of the House or of its Committees, except when any such debates or proceedings shall have been conducted with closed doors or in private or when such publication shall have been expressly prohibited by the House. Since that date, no complaint based on a report of a debate has been made in the U.K. House of Commons.135 The reason why a resolution such as the one in 1762 has not been invoked in the U.K. and in Canada is because the press has been allowed to report the proceedings for well over 150 years, and "practically speaking, therefore, it is idle to say that the publication of parliamentary proceedings is prohibited by Parliament."136 However, the House of Commons of Canada will not stand by if, in its view, there is a discrepancy between the edited version of a newspaper's purported transcript of the proceedings of the House and the report in the Debates. In the case of the Montreal Gazette in 1975,137 the Speaker found a prima facie case and it was referred to committee. The committee subsequently reported that the article contained serious omissions and should have been referred to as "extracts" rather than as the "edited, unrevised Hansard transcript of the House of Commons proceedings."138 Accordingly, the House of Commons of Canada remains prepared to entertain legitimate questions of privilege where false, partial, or perverted reports of debates or proceedings are published. In practice, a Member is permitted to air a grievance under the guise of a question of privilege if he feels he has been misrepresented by the press.139

Premature or improper publications or disclosure of the proceedings of the House of Commons or of one of its committees The House of Commons has rarely met in secret (the last two occasions were during each of the World Wars) but should any Member or 135 136 137 138

139

May, 21st ed., 1989, p. 122. Per Cockburn C.J. in Wason u. Walter (1868), L.R. 4 Q.B. 73 at 95. Journals, July 25, 1975, p. 743. Journals (1974-75-76), p. 781-2. It should be noted, however, that the Committee added that it was "compelled to refer to this (discrepancy) in order to impress upon the media the need for fair and impartial reporting." See also Debates, March 22, 1983 p. 24028, and report of Committee on Privileges, April 23, 1984. Journals, June 23, 1977, p. 1204-5. It seems to be the practice also in the U.K. Commons (May, 21st ed., p. 304-5).

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servant of the House or any person publish those proceedings it would be a contempt of Parliament. Committees normally meet in camera only to prepare their reports and, while the publication of any such proceedings represents an interference with its work, the House of Commons of Canada has never considered the premature publication per se by a newspaper or television of proceedings held in camera as a breach of privilege.14° Unlike secret sessions, the purpose of which is to keep matters secret, in camera proceedingi are held to enable Members to feel free to discuss and deliberate, and particularly to enable them to reach a decision by means of compromise without the glare of publicity and, unless it is alleged that a particular person gave the in camera proceedings to the press or some other misconduct is alleged specifically, a Speaker will be reluctant to find a prima facie case of privilege.141 Therefore, when a Member discloses in the House how certain named Members voted on a motion that took place during an in camera meeting of a committee, that constitutes a contempt of the committee.142 While British practice holds that premature publication per se of in camera proceedings amounts to contempt, it is because of a specific resolution of the U.K. Commons to that effect.143 On a motion of the Solicitor General of Canada that a committee be permitted to sit in camera for a particular purpose,'" it was agreed that the Committee on Justice and Legal Affairs was authorized to hold in camera meetings to consider the progress report of the Solicitor General on the implementation of a sub-committee's report on the penitentiary system in Canada and to report thereon. The main object of the resolution was for the committee to hear and consider the progress report. Accordingly, any disclosure of the proceedings of the committee would nevertheless not pave the way for a valid question of privilege, because any subsequent publication would not amount to disobedience of an order of the House. That is to say, the House did not prohibit publication of the proceedings of that committee. The general issue of referring to the Committee on Privileges the question of a premature publication in the news of a committee's report would also have the unhealthy result of one committee examining the 140 141 142 143 144

Journals, June 23, 1977, p. 1209. Journals, June 32, 1977, p. 1209; October 22, 1975, p. 781-2; Debates, April 22,1985, p. 3968-9. Journals, December 18, 1987, p. 2014-6. See also Newfoundland House of Assembly, June 17, 1988, Report of Standing Committee of Privileges and Elections. See the resolution ofJuly 16,1971 of the U.K. House of Commons, adopted October 31, 1980. Journals, December 6, 1977, p. 180.

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work of another committee.'" Under the right circumstances, however, one committee will in effect examine the events in another committee to determine whether the chairman properly followed the committee's instructions.'"

Reflections on Members and on the House Abraham and Hawtrey'sA Parliamentaty Dictionary points out that "to constitute a breach of privilege a statement reflecting on the conduct of a Member in his capacity as a Member need not be untrue, but it must tend to lower the House in the eyes of the public."147 There are actions that, while not directly in a physical way obstructing the House of Commons or the Member, nevertheless obstruct the House in the performance of its functions by diminishing the respect due it.'" As in the case of a court of law, the House of Commons is entitled to the utmost respect; thus, when someone publishes libellous reflections on the House, they will be treated as contempt of the House. Furthermore, reflections upon Members, the particular individuals not being named or otherwise indicated, are equivalent to reflections on the House.149 Any reflections of course must relate to the Member's parliamentary work.159 Bribery of a Member is probably the most serious accusation one could make, and to make an accusation that a substantial number of unnamed Members of Parliament have been in receipt of bribes is manifestly a case of contempt,151 because it amounts to a reflection on the House. For a newspaper to allege that a Member as owner of a numbered company was a paid lobbyist is prima facie a matter of privilege152 and referred to committee. The report of the committee did not make any recommendations but found that the newspaper's allegations were unsubstantiated and that these allegations adversely affected the reputation of the Member and the privileges of the House. There was not agreement in the report about whether the newspaper met acceptable 145 146 147 148 149 150 151 152

Journals, June 23, 1977, p. 1209. Journals (1968), p. 513, 695-6. 3rd ed. (London: Butterworths, 1970), p. 44. See Debates, October 10, 1989, p. 4457-61. May, 19th ed., p. 125. Senate Debates, April 1, 1993, p. 3036-7; Report of committee, May 6, 1993, concurred in by the Senate, June 10, 1993. Choquette case, Journals, May 7, 1976, p. 1275; May 21, 1976, p. 1306-7. Debates, March 22, 1983, p. 24028. See also Bernhardt, Pete; The Contempt Power of the Canadian House of Commons — the Case for Reform, 1992, LLM thesis, U of Ottawa, Chapter 4, for an analysis of this event.

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standards of fair reporting. The newspaper was reporting on proceedings in a bankruptcy hearing (report was tabled April 23, 1984). A straightforward motion that the newspaper publication in question was a contempt of Parliament would also permit the House to succinctly make its views known, and while this route has not been used in the Canadian House of Commons since April 25, 1894 save with unanimous consent (December 22,1976),153 it more than meets the test of aprima facie case of contempt when the publication represents an obvious interference with the proceedings of the House of Commons. In the event the House was not of the same view, it could vote the motion down. A cartoon with text has been found to constitute a contempt.154 Bourinot points out that many cases will be found in the older legislative record of Canada where the legislature or one of its Members has taken action with respect to attacks upon them.155 Members may be obstructed by writings reflecting on their parliamentary duties while engaged in a proceeding in Parliament, just as Members are protected in what they say during a proceeding in Parliament. Contemptuous references hold the Member in disrespect of his parliamentary conduct and thus the House is held in disrespect. The House of Commons is prepared to find contempt in respect of utterances within the category of libel and slander and also in respect of utterances that do not meet that standard. As put by Bourinot, "any scandalous and libellous reflection on the proceedings of the House is a breach of the privileges of Parliament, but the libel must be based on matters arising in the usual transaction on the business of the House..." and "libels upon Members individually...must concern the character or conduct of Members in that capacity" (4th ed., p. 51). This must be balanced against the "freedom of the press which is one of the fundamental rights of our 153 154 155

SeeDebates, February 13,1981, p. 7218, March 2,1981, p. 7771, where an opportunity arose. May, 19th ed., p. 145, referring to H.C. 39 (1956-57) (U.K.). 4th ed., p. 52, and precedents cited in the case of William Lyon McKenzie, Upper Canada Journals (1832), p. 33-55. For a Member of the House of Commons to charge "that honourable Members bribed reporters from the Press Gallery" has been held to be a prima facie case of privilege, Journals (December 19,1974), p. 228. The motion was only permitted to go to committee after a recorded division. The Committee subsequently received, to its satisfaction, a letter from the offending Member that the remarks attributed to him were expressed and intended to be received in a lighthearted vein and that no breach of privilege of the House was even intended (report of committee, Journals, March 6, 1975, p. 349). With the advantage of hindsight, the matter should probably have been treated as one of "order," i.e. the Member who made the remark was in effect using "unparliamentary" language. To be truly a question of "privilege," there would have to be an admission that bribery did occur. Otherwise, one Member may, by substantive motion on notice, "charge" that another received a bribe.

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society and one which ought not to be interfered with unless it is in fact in contempt...."156 The principle set out in one of the reports of the Privileges Committee in the British House of Commons157 was adopted by the Speaker of the Canadian House of Commons in 1976.158 The proposal made in paragraph 42 is fully consistent with the principle which your committee believe to be right, that the House should be slow and reluctant to use its penal powers to stifle criticism or even abuse, whether of the machinery of the House, of a member or of an identifiable group of members, however strongly the criticism may be expressed and however unjustifiable it may appear. Your committee regard such criticism as the life blood of democracy. In their view the sensible politician expects and even welcomes criticism of this nature. Nonetheless, a point may be reached at which conduct ceases to be merely intemperate criticism and abuse and becomes or is liable to become an improper obstruction of the functions of Parliament. For such cases, however rare, the penal powers must be preserved and the House must be prepared to exercise them. In your committee's opinion it would be an indefensible abuse of power if a member could evade such a defence by invoking the penal jurisdiction of the House. The citizen has prima facie a right to make fair comment upon such activity of a member as is a matter of public interest, his right is even stronger to speak and publish the truth of a member's conduct. These rights should not in the normal way be defeated by the use of the penal jurisdiction of the House. The exceptions to this general principle are likely to be rare. But if the rights of a citizen, though enforceable in the courts of law, are so exercised as to be likely improperly to obstruct the member in the performance of his parliamentary duty, it must be within the power of the House to restrain him.

An earlier report of the Committee on Privileges had put it this way: Your Committee recognize that it is the duty of the House to deal with such reflections upon Members as tend, or may tend, to undermine public respect for and confidence in the House itself as an institution. But they think that when the effect of particular imputations is under consideration, regard must be had to the importance of preserving freedom of speech in matters of political controversy and also, in cases of ambiguity, to the intention of the speaker. It seems to them particularly important that the law of parliamentary privilege should not, except in the clearest case, be invoked so as to inhibit or discourage the formation and free expression of opinion outside the

156 157 158

Journals, June 23, 1977, p. 1025. H.C. 34, December 1, 1967 (U.K.). Debates, April 9, 1976, p. 12668.

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House by Members equally with other citizens in relation to the conduct of the affairs of the nation.159 Any suggestion of partiality or bias on the part of a presiding officer such as the Speaker, a chairman of a Committee of the Whole or a chairman of a standing or special committee automatically shows disrespect and amounts to contempt.'" Other improper reflections on the Speaker are also subject to House action.161 Allegations in a newspaper that a Member has advance knowledge of the budget and of amendments to bills based on the budget, and that this knowledge was conveyed to businessmen, were found to be a prima facie case of privilege.162 To reflect improperly on a vote in the House and the motives of some Members is a breach of privilege.163 A newspaper editorial alleging slander, hypocrisy, and cowardice, inter alia, on the part of a Member while speaking in the House was held to be a breach of privilege.1" For a non-Member during a proceeding in Parliament to address a Member as a cheat and a swindler is a breach of privilege.165 For one Member similarly to address another Member would be a matter of order, i.e. the use of unparliamentary language. Every case has to be judged on its merits. While accusations of committee Members acting "like a hanging jury in a Kangaroo Court" and that they "maligned and insulted opponents of the seal hunt" and of accepting only favourable evidence while rejecting unfavourable evidence, "is very strong and might be considered to constitute contempt of Parliament, against this must be weighed the requirements of a free press reporting and commenting objectively on parliamentary activities."1" Arguably, the Speaker may have found aprima facie case in this instance if the Member had raised it at the earliest opportunity Allegations in a newspaper that Members attending a parliamentary NATO conference were negligent in their duties were

159 160

161 162 163 164 165 166

H.C. 247 (1963-64), (report dated June 16, 1964), para. 7 (UK). See also Report of Senate Committee on Privileges, May 6, 1993. Journals, April 25,1894, p. 108-9; Journals, December 22,1976, p. 270, which matter was not moved as a matter of privilege but with unanimous consent under the existing Standing Order. Debates, November 1, 1962, p. 1169-70. Journals, July 25, 1975; Debates, March 23, 1993, p. 17404-5. Journals, April 17, 1873, p. 167-9; April 7, 1873, p. 1334 (Elie Tasse case). Debates, Cinq Mars case, May 29, June 6, June 14, 1906. Journals, February 24, 1880. Debates, June 9, 1969, p. 9899-900.

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found to be a prima facie case of contempt.167 On the other hand, the House of Commons defeated a motion to refer to committee a newspaper editorial allegedly seriously misconstruing a committee report and that reflected on Members in general and Members in particular (ironically, the editorial was reporting on an earlier privilege matter respecting alleged improper overtures influencing a Member to change political allegiance).168 Nevertheless, the Speaker had found a prima facie case. To set out in a newspaper article an allegation that the Members of a political party are sitting in the House as a result of illegal election practices is certainly libellous. It is not a contempt of Parliament because it does not reflect on a Member's parliamentary duties but rather relates to matters over which Parliament had given jurisdiction to the courts under the Dominion Controverted Elections Act; nevertheless, the Canadian House of Commons in 1965 resolved that the matter be referred to the Chief Electoral Officer.169 The case is exceptional in that 1.

While not technically "privilege," it is a matter that the majority of Members of the House of Commons felt ought to be considered as such in order to be brought to the attention of the Chief Electoral Officer.

2.

While election practice is a matter for the courts under the Dominion Controverted Elections Act, the incident demonstrates that the House nevertheless has the right by virtue of its corporate power to provide for its proper constitution, as established by the law, to inquire into the qualifications of a Member whenever a doubt arises and decide whether a new writ of election ought to issue.170

3.

The incident arose when the Speaker's rulings were still subject to appeal. (The Speaker had ruled that there was no question of privilege involved.)

A prima facie case of privilege was held to have been established when a newspaper article alleged that a person in the gallery of the House directed the attack of a particular Member of Parliament against a legislative measure before the House,171 although the House voted down the motion to send the matter to committee. Language spoken during a parliamentary proceeding that impugns the integrity of Members would be unparliamentary and a breach of order 167 168 169 170

Debates, November 29, 1962, p. 2132-4. The Committee never met. Debates, June 18, 1964, p. 4431-5. Journals, February 24, 1965, p. 1069-71. See Chapter 11.

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contrary to the Standing Orders, but not a breach of privilege. Spoken outside the House by a Member, the same language reflecting on the Member's parliamentary capacity would be considered contempt of the House; it has been inadvertently treated as a matter of unparliamentary language that should be withdrawn172 rather than brought to the attention of the House by way of privilege, which is the proper practice.'" The same language spoken by a non-Member would, of course, also be brought to the attention of the House by way of privilege proceedings. Because he presides inside the House, the Speaker will not unilaterally accept jurisdiction in respect of words spoken or written by Members outside the House in the sense that he will not normally ask a Member to retract words spoken outside that if spoken inside the House would be considered unparliamentary. However, if one Member speaking outside the House reflects improperly on the conduct of another Member's parliamentary activities and the matter is raised as a matter of privilege in the House, the Speaker certainly has jurisdiction to examine those same words and determine if there is a prima facie case of privilege or contempt of the House. Speakers have done so in Canada174 and in the British House of Commons.'" The present British practice respecting reflections on Members, enabling the Speaker to take into account whether the complaining Member may have other remedies such as recourse to courts before finding that there is aprima facie case,176 is not followed in the Canadian House of Commons. In 1975, the Speaker permitted a Member to proceed with a motion after the Member advised the House that he had instructed his lawyer to take all appropriate action in respect of the same complaint.177 Yet it appears to have been one of the reasons why the Speaker of the Senate decided not to find a prima facie case. Since the Senator in question had told the Senate that she put the matter before the courts, the Speaker said the judgment of that court "will shed some light on the facts and afford (the Senator) the full measure of remedy to which she may be entitled" (Senate Debates, November 16, 1994, p. 920).

171 172 173 174 175 176

177

Debates, October 24, 1966, p. 9004-5. Debates, June 4, 1964, p. 3919-20. Debates, June 5, 1964, p. 3971; June 10, 1964, p. 4139-41. Debates, November 1, 1962, p. 1169-70; June 4, 1964, p. 3971; February 22, 1968, p. 6919-20; February 20, 1984, p. 1559-61. May, 21st ed., p. 127. UK. Debates of the House of Commons, February 6, 1978, p. 1155-1198, adopting the recommendations of the Third Report of the Committee on Privileges, H.C. 417 (1976-77), contained in paragraph. 5, inter alia. Debates, July 25, 1975, p. 7937.

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Criteria to assess Before the Speaker gives precedence to a motion dealing with alleged contemptuous reflections, he must attempt to strike a proper balance between the following two principles: the principle that Parliament should be protected from improper obstruction of its functions and, the principle of freedom of speech of the citizen to criticize the institutions or membership of Parliament.178

Contempt relating to the precincts of Parliament Because the House is deemed to be present in every part of the precincts, misbehaviour within the precincts of the House is misbehaviour in the presence of the House when it occurs on a day the House or one of its committees is sitting, will be sitting, or has sat.179 In other words, it is not the precincts that are sacred but the function of these precincts.

Assault on Members Accordingly, while assaults on Members that occur outside the precincts and that are unrelated to the Members' parliamentary work do not amount to contempt, the same assault occurring within the precincts, yet unrelated to a proceeding in Parliament, would constitute contempt of the House.180

Invasion of privacy The invasion of the privacy of a Member of the Senate or of the House of Commons within the precincts of Parliament by any person also constitutes a prima facie question of privilege.181 This includes the interception of a private communication182 on the precincts.

Two competing interests In the event a matter involving the precincts that smacks of the administration of justice comes before the Committee on Privileges, to determine whether the facts constitute a contempt of the House, 178

179

180 181 182

Report from Select Committee on Parliamentary Privileges, H.C. 34 (1966-67), para. 53, cited before the Canadian House of Commons Standing Committee on Privileges and Elections, August 11, 1975 in a Montreal Gazette case. See supra, Chapter 10. Service within the precincts of notice of an action has also been considered a prima facie case of privilege (See Debates, Alberta Legislative Assembly, May 4, 1987). See Canadian case of Gerin-Lajoie in 1866, supra, Chapter 10, and H.C. 36 (1946-47) (U.K.); and H.C. 31 (1945-46)(U.K.) Debates, October 17,1973, p. 6973, 6943 — a meeting of the caucus of a political party on the precincts was the subject of electronic eavesdropping by a journalist. Criminal Code, R.S.C. (1970), c. C-34.

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Members should balance two important yet competing interests. On the one hand, a Member of the Senate and a Member of the House of Commons are amenable to the criminal law of Canada except when they are taking part in a proceeding of Parliament. The criminal law of Canada applies everywhere in Canada except during a proceeding of Parliament. On the other hand, the Senate and the House of Commons of Canada have the right to regulate their own internal affairs, including the right to police and manage the precincts without interference from the courts,183 and any breach of that right may constitute a contempt of the House.184

Administration of justice within the precincts The administration of criminal justice must take account of the precincts in respect of matters unconnected with a proceeding in Parliament, i.e. an attempt by the RCMP to interrogate a Member regarding documents taken from a government department185 and an attempt to execute a search warrant,188 i.e. the lexparliamenti is also part of the law of Canada. The contrary is the case when criminal justice is being administered beyond the precincts, even though a Member is involved, and in respect of a matter unconnected with a proceeding in Parliament.187 Furthermore, the administration ofjustice was not held up when a Member was pursued into the precincts for escaping custody after a conviction for conspiracy.188 In the Gregoire case of 1964-65189 the evidence showed that the RCMP were advised by the Clerk of the House that they could not come onto the precincts for the purpose of arresting Mr. Gregoire, and he was accordingly arrested outside the precincts. Mr. Gregoire's offences were speeding on a federal parkway and failure to pay parking tickets at an airport, for which he was convicted and following which a warrant was issued for his arrest. On the other hand, by finding that there was no

183 184

185 186 187 188 189

Bradlaugh v. Gossett (1884), 12 Q.B.D. 271; R. v. Graham-Campbell, ex parte Herbert, [1935] 1 KB. 594; see Chapter 11. The Speaker must balance these same two interests when asked by police forces to execute a search warrant on the precincts. The Speaker has consulted with the House leaders in this regard. Debates, November 30, 1979, p. 1890-1. See Proceedings of Special Committee on the Review of the Parliament of Canada Act for a description of the procedure when the police wish to execute a search warrant on the precincts (January 18, 1990). See also R. v. Bernier and R. v. Fontaine in Table of Cases and supra, Chapter 11. Journals, (1973-74), p. 567; Gregoire case, Journals (1964-65), p. 1142. Debates, November 30, 1979, p. 1890-1. Journals (1964-65), p. 1142; Fred Rose (1946-47). See the case of Lord Cochrane, infra, note 191. Journals (1964-65), p. 1142; Proceedings of Standing Committee on Privileges and Elections.

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contempt involved, the U.K. House in 1813199 did not take exception to police arresting a Member of the House of Lords, Lord Cochrane, in the Chamber of the House of Commons on a sitting day; Lord Cochrane, however, had been convicted of a criminal conspiracy, and had escaped from the King's Bench Prison. Rather, the Committee on Privileges said it was novel, and there was no precedent to guide it, but the privileges of the House were not violated. Thus, while in the cases of Gregoire and Lord Cochrane we see two matters respecting the arrest of a Member on the precincts on a sitting day, what is quite apparent is the difference in the gravity in each case. In the RCMP case of 1973, the police were investigating missing government documents, rather more serious than an arrest following conviction for speeding and failing to pay parking tickets, yet removed from the case of someone who has been convicted of conspiracy; the committee nevertheless found that the act of the RCMP being on the precincts without consent constituted a well-founded question of privilege.

Police require permission of Speaker While the provisions of the Criminal Code regarding invasion of privacy like the rest of its provisions apply to the precincts of Parliament, police forces may not, by the law of parliamentary privilege, operate within the precincts of the House of Commons without the permission of the House or of the Speaker. Therefore, the police may not lawfully intercept private communications within the precincts without the permission of the House of Commons or its Speaker. To do so on a sitting day would amount to a contempt of Parliament because it amounts to offering an indignity to the House. It would seem therefore to follow that no indignity would be offered to the House if the interception within the precincts without permission occurred on a non-sitting day. However, apart from the contempt based on the "function" principle, because each House of Parliament of Canada has the exclusive right to manage and police its internal affairs and therefore its precincts, each House is entitled to "oversee" within the precincts the operations of other police forces whether or not the House or one of its committees is sitting. The Committee on Privileges of the House of Commons of Canada has indirectly suggested that the Speaker, on behalf of the House, should be asked permission by outside police forces prior to coming onto the precincts on official business.191 190 191

(U.K.) C.J. (1812-13), p. 604. Journals (1973-74), p. 567. While one is loath to suggest that a Member of the House of Commons may not invite whomever he (she) pleases onto the precincts, it may not be sufficient answer for police coming on the precincts on official business to say that the permission of a Member who is the object of their activity was obtained because it is the House that is the subject of any contempt, not the Member, and therefore, only the House or the Speaker may give the necessary permission.

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Non-sitting days The Supreme Court of Canada in 1904192 also recognized that while the legislature may not be sitting, the Speaker has the power to maintain order193 within the precincts by revoking the public's licence to enter. Without straining the ratio of this decision, arguably, it represents support for the right of the House of Commons through its Speaker to continue to police its precincts whether or not the House is sitting. Outside police forces therefore ought to seek permission before officially coming on the precincts physically or electronically. Although the "privileges" of the House are defined, contempt of the House has no limits.194 Therefore, the act of police coming onto the premises on official business on a non-sitting day whether physically or electronically would at least constitute a prima facie case of contempt of the House.195 The House would then have to decide the issue of contempt. Finally, it is to be observed that under the "function" principle, it is not only actions within the precincts directed against a Member on a sitting day that may amount to contempt. Service or execution of process on any person on the precincts on a sitting day may constitute a prima facie case of privilege (see supra, this chapter).

Procedure involved in moving a motion based on a question of privilege in the House of Commons Conditions precedent Notice. Where a matter of privilege arises out of the proceedings of the House, it may be taken up immediately without any notice.'" Unless forty-eight hours' written notice has been given in the normal way for motions generally, any Member proposing to raise a question of privilege, other than one arising out of proceedings of the House, must give to the Speaker a written statement of the question at least one hour prior to raising the question in the House.197 In practice, the written notice has not always contained details of the alleged question 192 193 194 195

196 197

Payson v. Hubert (1904), 34 S.C.R 400. See also Chapter 10. See supra. The British Columbia Legislature found the RCMP to be in contempt of the Legislature for having intercepted on the precincts during a period that the House was sitting, but specifically made no finding in relation to the interception of the Member's interception while the House is not sitting: Journals, B.C. Legislature, (June 6, August 22, 1980). The Special Committee on Privileges of the Yukon Legislature also found the RCMP was in contempt of the Legislature for intercepting on the precincts: Report (1980), Third Session, Twenty-fourth Legislature, Yukon Territory. Standing Order 48(1). Standing Order 48(2), Debates, March 15, 1972.

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of privilege but simply stated that "a question of privilege will be raised"; however, Speakers have indicated that to conform to the Standing Order, the notice should be accompanied by a written statement of the question,198 including details to assist the Chair in preparation.199 In other words, oral notice is not sufficient.= Notice may also be given under Standing Order 54, which provides that forty-eight hours' notice shall be given of a resolution; it will then be placed on the Notice Paper, but its position on the Order Paper will be held in abeyance pending a ruling that it represents a prima facie case and is accepted by the House.201 Motions respecting privilege rarely fmd their way onto the Order Paper because they are normally disposed of the day the motion is put.202 It must be raised at the first opportunity. Matters relating to the rights, immunities and privileges of Members of the House or matters of contempt are of such importance that the regular business of the House is put aside so that the Members may immediately discuss the matter. Accordingly, the other condition precedent for raising a question of privilege is that it must be raised at the first opportunity. Members are given the benefit of the doubt in this respect since the Speaker is reluctant to rule out privilege matters on technical grounds.203 Nevertheless, Members have been thwarted in initiating privilege proceedings because of not bringing the matter forward at the first opportunity.204 Each case will be judged on its merits. While the "first opportunity" does not require the Member to extend himself to obtain the next plane to Ottawa after seeing an article in the local newspaper of a far-flung constituency, he is nevertheless expected to be diligent and to raise the issue in the House as soon as practicable. In finding that there was a delay of six days after an article appeared in The Montreal Star before it was raised in the House, the Speaker stated: The fundamental rule that a question of privilege should be raised immediately and without delay should be enforced. I appreciate that 198 199 200 201 202 203 204

Debates, October 30, 1980, p. 4251. Debates, November 7,1980, p. 4552; see Debates, December 10,1980 —lack of detail is fatal. See also Debates, January 28, 1988, p. 12360. Debates, October 31, 1980, p. 4307-8. Pallett case, Debates, June 17, 1959, p. 4807. See Order Paper for December 7, 1978. Debates, November 3, 1978, p. 782, 787. Debates, June 9, 1969, p. 9899; October 22, 1964, p. 9316. See Senate Debates, November 16, 1994, p. 919-20. See case of the complaint against M. Jacob (Charlesbourg) by Mr. Hart six months after the event: the Speaker felt the matter of alleged seditious activity was too important not to allow the matter to be raised, Debates, March 12,1996, p. 562 and the report of committee presented June 18,1996.

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in some cases there might be extenuating circumstances, as where a newspaper is published in a remote section of the country, or if the offending article is published in a language other than that of the aggrieved Member. In such circumstances a delay might be permitted.205

The motion A proper question of privilege must be eventually followed by a motion usually to refer the matter to the Committee on Privileges.206 The Speaker, accepting as factual what is said by the Member who raises the question, then has the duty to decide whether on their face those facts could reasonably be held to be a breach of privilege. If he decides in the negative, the matter ends there and no motion is put to the House. However, if he decides that the facts could reasonably be held to be a breach of privilege, he then puts the motion formally to the House in order for the House to decide whether the matter should be sent to Committee. Until the motion is actually put to the House, the House is not seized of it, and therefore, the Member may amend or withdraw his proposed motion without the consent of the House. "I do not accept this proposition that the motion is not subject to revision with the consent of the mover, or rather at the instance of the mover, if it is bad and he wishes to remove the error provided that it has not been put in possession of the House."207 Furthermore, the Speaker is reluctant to "allow a matter as important as that (i.e. privilege) to fail on the ground of form."208 This is the present practice, whereas on March 10, 1966, the Speaker felt he could not accept the motion as presented but agreed that there was aprimafacie case of privilege.209 The traditional acceptable motion should: 1.

Refer simply and briefly to the complaint raised by the Member.

2.

Except in the case of the House disposing of the matter forthwith (see the case of Ian Waddell, M.P., infra this chapter, under CALLED TO THE BAR OF THE HOUSE), then refer the complaint to the committee on privileges.

For example: "That all articles contained in the July 24th and July 25th Montreal Gazette relating to the conduct of the Member for 205 206 207 208 209

Debates, June 9, 1969, p. 9900. Debates, June 10,1964, p. 4139-40, citing the traditional practice set out in Abraham & Hawtrey, and in Bourinot, 4th ed. Journals, January 16, 1961, p. 148; see also Debates, May 18, 1960, p. 3994. Debates, April 19, 1977, p. 4766. Journals (1966), p. 269.

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Kenora—Rainy River vis-à-vis the November 18th Budget, including most especially the allegations that the said Member had advance knowledge of the said Budget and conveyed that knowledge to businessmen and the discrepancy in the editing of the Gazette's purported transcript of the proceedings of this House as compared to the report in the House of Commons Debates, be referred to the Standing Committee on Privileges and Elections."210 "That the alleged accusation by Mr. Auguste Choquette that a substantial number of the Members of the House of Commons have been in receipt of bribes, be referred to the Standing Committee on Privileges and Elections."211 "That the letter sent by the Solicitor General of the day to the Hon. Member for Northumberland—Durham on December 4, 1973, and the testimony of former RCMP Commissioner Higgitt on October 24, and November 1, 1978 before the royal commission of inquiry (McDonald Commission) concerning the practice of the RCMP in preparing letters for the signature of the Solicitor General, be referred to the Standing Committee on Privileges and Elections for investigation and report."212 "That the matter of threats of Ms. Kelly Crichton against Ms. Cheryl Eckstein, be referred to the Standing Committee on House Management."213 "That the matter of the non-observance of the tabling requirements for Order in Council PC 1992-2715 and other documents in the House of Commons be referred to the Standing Committee on House Management."214 Members frequently raise a question of privilege without intending to move a motion in order to bring forth a complaint, grievance, or other matter to the attention of the House. This differs from the British practice, where it would be quite irregular to do so and would not be accepted by the Speaker. The Canadian practice is more relaxed. While it is far from condoned, it is nevertheless not considered in the formal sense "irregular " However, under these circumstances, the Speaker is free to interrupt the Member during his remarks where they fall short of disclosing a proper question of privilege.

210

Journals, July 25, 1975, p. 743. Ibid., May 7, 1976, p. 1275. 212 Debates, December 6, 1978, p. 1857. 213 Debates, December 4, 1992, p. 14631. 214 . Debates, April 19, 1993, p. 18104-6. 211

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Whereas the practice at one time provided that the alleged contemner be brought to the Bar of the House,215 the present practice is to refer the matter in question, whether it be libellous reflections on Members216 or any alleged breach of privilege, such as allegations of bribery217 or misconduct of a Member,218 to the Committee on Privileges. To have someone attend at the Bar to be questioned respecting the alleged contempt or breach of privilege would be too cumbersome, particularly where witnesses would be called. Each question to the person at the Bar must be the subject of a debatable and amendable motion, and the Speaker would then put the question. It is nevertheless open in flagrant cases of contemptuous conduct to move that the facts in question constitute a breach of privilege, or that they constitute a libel on the House or on a particular Member, or both.219 This was the case when the House found that an editorial in The Globe and Mail constituted a gross libel on the Speaker and its publication a gross breach of the privilege of the House, albeit it was done by means of unanimous consent under proceedings other than privilege.220 The same motion would have been acceptable under privilege proceedings because it was a case of flagrant and obvious contempt.221 The motion may not incorporate both a declaration of contempt and a reference to committee. It must be one or the other because the role of the committee is to find whether there is a case of breach of privilege, i.e. to investigate and report whether in its view the facts, which the Speaker held and the House resolved ex facie was a case of privilege, really do prove to be a case of contempt. In theory, the House and committee could arrive at two different findings, and did so in the U.K. in the Strauss case.222 To sum up, the motion does not present a problem where there is a valid question of privilege because the Member is afforded an opportunity 215

216 217 218 219 220 221

222

Journals, April 17,1873, p. 133,: case of Elie Tease, November 3, 1843, p. 134-5,142; case of Alderman Heney, February 17, 1880; case of MacDonnell; Cinq Mars case, Debates, June 6, 1906, p. 4709-10. Debates, October 24, 1966, citing HaLsbury, 3rd ed., vol. 1, c. 28, p. 466. Journals (1974-75-76), p. 228, 1275. Ibid., p. 743. Journals, April 28, 1894, p. 1958 ff. Journals, December 22, 1976, p. 270. Debates, October 24,1966, p. 8999. While it may be difficult enough for a Speaker to be objective in respect of whether alleged libelous reflections on him are based on privilege, it must have been even more trying when the Speaker of the British House of Commons, on April 11, 1960, had to determine whether or not alleged libellous remarks by his wife constituted a breach of privilege, but he was able to take comfort in the knowledge that "my ruling cannot in any way detract from the correct and absolute right of this House to deal with such a matter precisely as it thinks fit" (U.K. Debates, vol. 621, c. 890-1, 1087, and referred to in P.S. Pachauri, p. 208). C.J. (1957-58), 260; H.C. 305 (1956-57); H.C. 227 (1957-58) (U.K.).

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to change it, and in practice, the motion would not be formally put unless it was in order. In fact, the Member is invited to purge it of error with the assistance of the officers of the House of Commons.223

Procedure in the House when the complaint is not founded on written or spoken words Where the complaint shows an obvious and flagrant case of contempt or breach of privilege, the House would, if the Speaker finds a prima facie case of privilege, entertain and adopt a motion that the person in question or the act in question is in contempt of the House or is guilty of a breach of privilege.224 Normally, however, the motion refers the complaint to the Committee on Privileges, because the facts usually are not flagrant or at least may be tempered by explanation and require an investigation, for which the Chamber is not at all suitable—for example, in the case of the Member for Lapointe when he was arrested on Parliament Hil1,226 in the case of members of the RCMP interviewing a Member's staff on the precincts,226 and in a case where it was alleged Members were accepting bribes.227 The alternative of calling the alleged contemner directly to the Bar at the outset would be quite unwieldly and unlikely to ever occur again. When the subject of a complaint is a Member and the Speaker is satisfied that there is a semblance of "privilege" to the complaint, the Speaker will not normally rule on the matter until the Member has been heard or at least given ample opportunity before ruling in his absence.228 Normally, the complaining Member will wait until the subject of the complaint is in his place in the House before he raises it. No practice has developed to give the alleged contemner notice beforehand.229

Procedure in the House when the complaint is founded on written or spoken words The most common example of a complaint founded on written or spoken words is the newspaper article or editorial. An obviously flagrant 223 224 225 226 227

228 229

Debates, March 9, 1978, p. 3608. See case of disrespect towards the Mace and the Sergeant-at-Arms, Debates, October 31, 1991, p. 4309-10. Debates, February 16, 1965, p. 11356-62. Ibid, September 4, 1973, p. 6179, 6181. Journals (1974-75-76), p. 1275. See also prima facie cases, e.g. Debates, May 6, 1985 p. 4439, November 6, 1990 p. 15177-9, February 20, 1984, p. 1559-61, and Debates, December 4, 1992, regarding alleged threats to a witness before a parliamentary committee. See supra, Introduction. The practice in the UK. is to give notice: May, 21st ed., p. 139.

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case will provoke a motion to resolve that the article is libellous and that its publication is a contempt of the House;230 that is to say, once the Speaker finds that the article constitutesprima facie contempt, a Member may move that the article constitutes a contempt of the House.231 Under less extraordinary circumstances, the motion will refer the article in question to the committee.232 The motion has been moved by the Prime Minister,233 and by the Leader of the House,234 but is normally moved by the Member raising the matter. Generally speaking, the facts themselves will suggest a motion to refer the matter to the committee. For example, the Sperry and Hutchison Company case of 1960235 and the Steelworkers Hamilton Area Council case of 1965236 involved the alleged misuse of parliamentary publications and required investigation. Similarly, an advertisement in a (Ukrainian language) newspaper in Toronto by a former Member, who is identified in the ad as the current Member, was found to be a prima facie case and referred to the Committee on Privileges.237 An article in La Presse reflected adversely on the contribution of the Canadian delegation of Members of Parliament to the NATO parliamentary conference held in Paris in 1962;238 and when Mr. Auguste Choquette, the former M.P., alleged in 1976 that a substantial number of Members of Parliament were taking bribes,239 it was the type of factual situation that required an investigation to determine if there was any foundation for the remarks, or to permit Mr. Choquette to substantiate his charges.246 The Speaker will also be required to be familiar with the alleged contemptuous article in order to rule if it is aprima facie case of contempt; furthermore, the Speaker will have to be satisfied that the article in fact exists. Accordingly, the complaining Member should either read the article or the material parts thereof to the House or ask that the Clerk of the House read the article where it is a particularly long article.241

230 231 232 233 234 235 236 237 238 239 240 241

Journals, April 25, 1894, p. 108; December 22, 1976, p. 270. Debates, February 13, 1981, p. 7218; March 2, 1981, p. 7771. Ibid., November 1, 1962, p. 116-8. See for example, cases concerning the Montreal Gazette. Journals, April 25, 1894. November 1, 1962; December 22, 1976. Debates, February 15, 1960, p. 1055, 1104. Ibid., May 23, 1966, pp. 12677-9. Debates, May 6, 1985, p. 4439. Ibid., November 29, 1962, p. 2132-3. Journals, May 7, 1976, p. 1275. The Committee found that his remarks had no foundation and he could not substantiate them. See report of Committee, Journals (1974-75-76), p. 1305-7. Debates, June 4, 1964, p. 3917 ff.; October 20, 1966, p. 8890.

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The alternative of moving that the alleged contemner attend at the Bar where he is heard in defence and then cited for contempt was last followed in 1906 in the Cinq Mars case.242 It would have to be an extraordinary case before the House of Commons would proceed in the same way today.243 Any proceedings at the Bar of the House would be required to be done by motion, i.e. since the House acts by way of motion, the form of questions to anyone at the Bar would be the subject of a motion that would be debatable and thus amendable — a manifestly unwieldy procedure best suited for the committee. In general, the Canadian practice in respect of complaints founded on the written or spoken word is not as formal as the practice currently in effect in the British House of Commons.

Where a Member is the subject of a question of privilege Where a question of privilege raises the issue of remarks or written words uttered by a Member of the House of Commons outside the House that allegedly constitute contempt,244 the Speaker will not always wait to hear from the alleged contemner before he rules on whether there is a prima facie case of contempt.245 The former British practice of having the Member withdraw during the debate on the motion246 after he has been given an opportunity to defend himself is no longer followed in the British or Canadian House of Commons247 There has probably been only one motion respecting alleged contemptuous writings by a Member put formally to the House of Commons since 1867, and in that instance, there was no debate 24 There have, however, been unsuccessful attempts to raise a question of privilege in respect of statements made by Members outside the House,249 and the alleged contemner has always taken part in the discussion of whether the 242 243 244

245 246 247 248 249

Journals (1906), p. 342, 345-6, 370-7. Debates, October 24, 1966, p. 8999. These same remarks if said in debate in the House would be a breach of order, not privilege, provided, however, that a Member may call into question another Member's conduct by substantive motion in which otherwise unparliamentary expressions may be used (U.K. Debates, June 15, 1965, v. 714, c. 245; Debates (1977-78), p. 3293-5). See also supra; Conduct of a Member: Raising Complaints Against Members in the House of Commons. Debates, May 17, 1960, p. 3952; November 1, 1962, p. 1167-8; December 19, 1974, p. 2383-4. May, 21st ed., p. 139-40. Ibid. Debates, November 1, 1962, p. 1167-8. Journals, February 22, 1968, p. 709-10; September 28, 1971, p. 833-4; Debates, May 29, 1973, p. 4193.

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Speaker should find that the facts constitute a prima facie case of contempt. This may be compared with the prescribed procedure when the conduct ofany Member, his election, or his right to hold his seat comes into question. This would take place only after the Speaker found that the motion may be put. In such cases Standing Order 20250 provides that the Member may make a statement, then must withdraw.251 An apology by the offending Member will invariably close the matter without the necessity of putting the motion to a vote.252

Precedence Once the motion to refer the matter to the Privileges Committee has been formally put to the House and resolved in the affirmative, the motion is given immediate precedence over any other pre-arranged business.

Motion is amendable and takes precedence until disposed of The motion, however, is itself subject to amendment and the rules relating to amendments, as well as being subject also to dilatory motions such as a motion to adjourn the debate or to proceed to orders of the day, but if the debate on the motion is still in progress at the normal time for adjournment, it will be placed on the Order Paper on the following sitting day under "Routine Proceedings — Motions" to be again taken up and given the same precedence until otherwise disposed of.253

Procedure in the Privileges Committee254 The procedure and practice that prevails in standing committees of the House extends also to the Committee on Privileges, and the power of that Committee is no more and no less than the power of any other standing committee. Standing Order 108 empowers the standing committees to enquire into all matters referred to them and to send for persons, papers, and records. While the committee is also master of its own procedure, and while the committee may with impunity deny a witness natural justice, 250

251 252 253 254

Standing Order 20. "If anything shall come in question touching the conduct, election or righ of any Member to hold a seat, that Member may make a statement and shall withdraw during the time the matter is in debate." The same procedure does not necessarily apply when pecuniary interest in a vote is involved. See Standing Order 21. Debates, May 18, 1960, p. 3993-4; June 19,1995 p.14091-2. Debates, December 6, 1978, p.1877; Order Paper, December 7, 1979. See Chapter 11 re power of committee.

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nevertheless, the committee is guided by the basic rule of natural justice, i.e. that the person be given an opportunity to be heard.255 While the committee may call for persons, papers, and records, it cannot punish. This power rests with the House, and thus the committee may only recommend punishment by report to the House and may only report any incident of misbehaviour, such as failing to appear or refusing to answer questions, to the House for a decision.256 The committee need not be guided by the rules of evidence in force in the courts because, as in the case of parliamentary proceedings to remove a superior court judge, the committee, like the House itself, is also governed by considerations of public policy and may use "evidence which a court of justice would not consider legal evidence."257 Furthermore, "the House of Commons is not subject to the control of Her Majesty's Courts in its administration of that part of the statute law which has relation to its internal procedure only. What is said or done within its walls cannot be inquired into in a court of law."258 While, as a general rule, counsel is not permitted to take an active part in the proceedings of a committee, persons appearing are permitted to have counsel in attendance. The House of Commons has, however, permitted counsel to take part once proceedings have reached the stage of the Bar of the House by addressing the House on behalf of the person who is the subject of these proceedings.259

255

266 267

268

259

See proceedings of Privileges and Elections Committee respecting its powers and procedures in the proceedings of August 11, 1975, re the Montreal Gazelle, John Reid, M.P.; case of RCMP and Flora MacDonald, M.P., proceedings of Sept. 4, 1973; case of Auguste Choquette, former RP, proceedings of May 7, 1976. See also presentation of General Legal Counsel of the House of Commons to the Standing Joint Committee on the Scrutiny of Regulations on the Powers of Parliamentary Committees, November 16,1994. Members may not only be asked to attend but may be ordered by the House. Ministers of the Crown are in a different position. See Journals (November 22,1990), p. 2280 when the Standing Committee on the Environment in its 5th Report to the House agreed to the following motion: "That the Chairperson report to the House that since the Hon. Minister of the Environment has refused to respond to the correspondence sent to him by the Committee and has refused to appear before the Committee, the Committee requests the support of the House in this matter." Miller case, February 20, 1913. Mn Secretary Peel, U.K. Debates (1828), p. 1902, on the debate respecting the removal of Sir Jonah Barrington, a Superior Court judge. (Referred to in committee proceedings relating to the case of the RCMP and Flora MacDonald, MP., August 11, 1973, and in committee proceedings to remove a Canadian Superior Court judge. See Journals (1967), p. 1724, Appendix 60 to Journals.) Bradlaugh v. Gossett (1884), 12 Q.B.D. 271 at 278, citing Blackstone, vol. 1, p. 163. Entrenched constitutional manner and form provisions, however, should be followed by the House. See Chapter 14. See case of R.C. Miller, Journals, February 20, 1913. Sir Jonah Barrington was represented at the Bar of the House of Commons, May, 1828 (U.K.) by Mt Denman, presumably later Denman Ch.J. in Stockdale v. Hansard.

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Witnesses before committees are counselled to answer questions that the committee has agreed to ask, because the House has the power to punish for refusing to answer.266 It has been the practice for the Law Clerk and Parliamentary Counsel (now General Legal Counsel) to be asked to assist the Committee on Privileges, for example, by submitting a paper on the general area of privileges of Parliament, and also particularly with respect to the specific order of reference on which he or she is questioned. The practice in the U.K is for the Clerk of the House to perform this task. In Canada, the proceedings in committee are normally held in public, but are held in camera in the U.K.

Report to the House from Privileges Committee; its consideration In the U.K., those reports from the Privileges Committee that fmd a complaint of contempt or breach of privilege to be justified, but that do not suggest that the House take further action, are usually debated and adopted or rejected by the House.261 In Canada, it is a rare case to have a report from the Committee on Privileges relating to privilege being dealt with by the House of Commons itself.262 The reports of the committee regarding the conduct of Members unrelated to proceedings in Parliament have in the past been invariably debated in the House and disposed of. The present practice involving reports from the Committee on Privileges would involve adoption of the report only if further action flowed as a natural consequence — for example, punishment. The last time a report from the Privileges Committee relating to a question of privilege that had been referred to it was debated and adopted in the House was probably on June 11, 1894,264 in respect of two persons who failed to appear as witnesses. A motion to adopt such a report would 260 261

262

263 264

See supra, Chapter 11; The Right to Institute Inquiries and to Require the Attendance of Witnesses and the Production of Documents. May, 21st ed., p. 137-8. Of the 51 reports from the Committee in the period 1945-77, nine reports were debated and the overwhelming majority of the balance consisted of reports where the Committee has found a complaint of contempt or breach of privilege to be justified, but have suggested that the House would "best serve its dignity" by taking no further action. See Debates, February 25, 1993, p. 16440 (adoption of 65th Report of the Standing Committee on House Management) for the exception. The committee recommended that the Speaker write to the parties involved. See also Senate Debates, June 1, 1993, where the 5th Report of the Standing Committee on Privileges, Standing Rules and Orders concerning the alleged question of privilege of Senator Carney, which was presented May 6, 1993, was adopted. See supra this chapter, Conduct of aMember: Raising Complaints AgainstMembers in House of Commons. In the R. C. Miller case of 1913, the matter had been before the Public Accounts Committee and had not been referred to as a matter of privilege.

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be subject to the usual rules respecting any report received from a committee. There has been probably only one occasion265 this century to adopt a committee report respecting privilege, save in relation to the conduct of a Member (see supra the cases from that of Daoust, 1876, to Home Bank, 1924), because the reports have not reported any matter that required further action by the House. Where, however, a committee reports an event that requires action by the House, the rules of the House provide that a debate may commence thereon not less than two days after the report has been tabled. However, the motion for same does not have precedence.

Called to the Bar of the House Mr. R. C. Miller was called to the Bar of the House in 1913. This would now take place only after the House had adjudged the case and was prepared to admonish or commit.266 Mr. Roberts was called to the Bar of the Legislative Assembly of Quebec in 1922 before he was jailed by Act of the legislature. The most recent call to the Bar of the House occurred on October 31, 1991, when a Member was called to the Bar of the House and reprimanded by the Speaker for interfering with the Sergeant-at-Arms and the Mace.267

Procedural effect of Speaker not finding a prima facie case A finding that noprima facie case exists does not preclude the matter being brought up in another way where precedence would not be accorded; for example, by setting it down as a private Member's notice of motion. "In finding that a question of privileges of the House is not prima facie involved in this motion, I am making a procedural decision the effect of which will not prevent the further discussion by the House of the matters in issue. The effect is to refuse precedence to this discussion but not to prevent it. No barrier is raised to the presentation of this matter under different circumstances on another occasion."268

265 266 267 268

Debates, February 25, 1993, p. 16440. For review of such occurrences see Norman Ward, Called to the Bar of the House of Commons (1957), 35 C.B.R 529. See Debates, p. 4309-10. Journals, June 19, 1959, p. 586; March 10, 1972, p. 56.

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

Introduction On the last occasion when the courts and the House of Commons in England seriously divided over the issue of which institution had jurisdiction over the lex parliamenti or privileges of Parliament (in particular, the privilege of publishing defamatory matter that had been tabled in the House of Commons but otherwise formed no part of its proceedings), the courts resolved in favour of the subject. It required an Act of Parliament,1 ultimately, to resolve the issue and permit the House of Commons thereafter to publish such material with impunity.2 The fact that it was required to be resolved by an Act of Parliament is of itself misleading, because the same legislation also provided that the Act was without prejudice to the privileges of Parliament 3 However, while the House of Commons in the U.K. has yet to formally relinquish its claim that it alone is the institution that may define its privileges, the last time they were claimed in such broad terms was in 1837, and England's highest court recently noticed the change in attitude attributable to Westminster.4

Scope of chapter This chapter will trace the history of the struggle in the U.K. leading to the present position respecting jurisdiction. The position in England in 1867 does not differ in any remarkable degree from the present position. The "struggle" was more than rhetorical even after Charles I in 1641 entered the Commons in search of outspoken Members. Apart from the 1 2 3 4

Parliamentary Papers Act, 1840, 3 & 4 Victoria, c. 9 (UK). Stockdale u. Hansard (1839), 9 Ad. & EL 1,Parliamentary Papers Act, 1840, now s. 7, 8, and 9 of the Parliament of Canada Act, R.S.C. (1985), c. P-1, s. 7, c. S-8. Note 1 supra, s. 5. See Pepper u. Hart, [1993) 1 All E.R 42 (H.L.) supra, Chapter 4.

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court in Jay u. Topham (1689)5 being called before the House and taken into custody, the House of Commons in England was, during the course of the considerable litigation following the decision of Stockdale v. Hansard in 1839,6 putting lawyers in jail for failing to attend the House in answer to its requests to attend and answer for having sued officers of the House and others who were acting pursuant to an order of the House.7 A similar event occurred in Newfoundland in the Kielley v. Carson case.8 When the court found the process by which Dr. Kielley was held in custody to be void (i.e. the order of the House of Assembly committing Dr. Kielley), the House ordered that the judge and sheriff be imprisoned, and "On the morning of August 13, 1838, the citizens of St. John's were treated to the spectacle of a venerable judge of the Supreme Court, being marched through the town to a common goal by the Sergeant-at-Arms bearing the mace."9 We will also examine the history of the Canadian position, taking into account legislation and case law and the "old dualism."10 Chapter 14 will then deal with the Charter and its effect, taking into account the recent decision of the Supreme Court of Canada.11

The position in the UK. The Parliament that existed before the separation into the House of Lords and the House of Commons in about the mid-fourteenth century was really the Council of the King with varied functions. It was a court of law, advisory council, and exchequer, and it is impossible to draw any definite line between Parliament and court. The twelfth century had seen the beginning of the courts, but the justices of the King's Bench were also members of the Council, and a case heard at a full meeting (a Parliament) of the Council was heard by, amongst others, the justices of the King's House.12 The Council would act in the name of Parliament, and in fact was Parliament. While separate courts probably emerged with their trained judges during the time of Henry II, these courts were still the Council and, 5

12 State Tr. 821. See infra, note 57. 7 Stockdale v. Hansard, supra, note 2; Howard v. Gosset (1845), 10 Q.B. 411, 116 E.R. 158, reversed at (1847) 10 Q.B. 459. 8 (1842), 4 Moo. P.C.C. 63, 13 E.R. 225 (P.C.). 9 J. Courage, Parliamentary Privilege in Newfoundland: The Strange Case of Kielley v. Carson, Can. Parl. Rev., 4, 10 (Fall 1981). 10 This refers to both the courts and the legislatures each claiming jurisdiction over parliamentary privilege. See in Re Parliamentary Privilege Act 1770, [1958] A.C. 331, referring to May, 16th ed., p.173. See also May, 21st ed., p. 145. 11 N.B. Broadcasting v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319. 12 It is interesting to note that judges were also legislators in Canada until the early nineteenth century. See infra, note 78. 6

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as was seen in Thorpe's Case" of 1452, the Lords sought the advice of the King's Bench as a normal practice. The Rolls of Parliament, which are the only real source of parliamentary history before the start of the Journals of the House of Commons in 1547, show that a large part of the work of "Parliament" was what we should call judicial, consisting of those cases that had proved "too hard or too novel" for the judges in the separate courts. Thus, until the time of the Tudors, Parliament was not thought of primarily as a legislature. The judicial functions overshadowed the legislative; Parliament still seemed primarily a law-declaring machine. It was still, in reality, "the High Court of Parliament."14 Of the law of this High Court of Parliament, or the lex parliamenti, Coke said: ...and as every court ofJustice hath laws and customs for its direction, some by the common law, some by the civil...so the High Court of Parliament....15

Regarding where the lex parliamenti should be decided, he went on: ...it is lex et consuetudo parliamenti that all weighty matters in any

Parliament moved concerning the Peers...or Commons in Parliament, ought to be determined, adjudged, discussed by the court of the Parliament, and not by the civil law, nor yet by the common laws; which was declared...concerning the Peers...by the King and the Lords...and for the Commons...by...law and custom of Parliament....16

With respect to the position the courts should take in the matter of privilege, or of the lex parliamenti: ...and this is the reason that judges ought not to give any opinion of a matter of Parliament because, it is not to be decided by the common laws but secundum legum et consuetudinem parliamenti: and so the judges in divers Parliaments have confessed....17

While it is clear that Parliament in all its constituent elements, being at once the court of last resort and the legislature, could make laws and thus set its privileges, it was not clear what privileges belonged to the House of Commons, which was, at the time of the separation, its least significant element. The only privilege that was in issue prior to printing parliamentary papers in the mid-seventeenth century was the privilege of freedom from arrest that had existed from the first Council of the King in feudal times. (This was a considerable right, since it included the Member's servants and goods.) The privilege from being impleaded was also probably enforceable. 13 14 15 16 17

(1452), 5 Rot. Parl. 239. McIlwain, p. 16-38. 4 Institute 15 (1644). Ibid. Ibid.

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First privilege claimed was freedom from arrest The House of Lords always had whatever privileges were necessary, because it was part of the original King's Council and enjoyed the King's Peace, yet the only necessary privilege that was associated with a Member was being able to attend the Council or Parliament without having an execution being levied upon his person or that of his servants or goods. So it was natural that the first privilege claimed by the House of Commons was freedom from arrest.

n Thorpe's Case (1452) The first case respecting parliamentary privilege before the courts is said to have been Thorpe's Case in 1452,18 where the issue was whether a Commons man, in fact the Speaker, Thorpe, could be kept in prison for civil debt while Parliament was sitting. The Commons appealed to the House of Lords for redress and the Lords in turn asked the advice of the judges, which was then an established practice. While the court said they would hold for the Member if it came before them, Fortescue C.J. was of the view that they ought not to answer the question; it had not been done before because the High Court of Parliament "is so high and so mighty, in its nature that it may make law...and the determination and knowledge of...privilege belonged to the Lords of the Parliament and not to the Justices."18 Consequently, the case has been used as early authority for the proposition that each House of Parliament is judge of its own privileges. The Lords nevertheless directed that Thorpe remain in prison, and the House of Commons simply elected another Speaker.

n Ferrers' Case (1542) During the reign of Henry VIII in 1523, Sir Thomas More was the first Speaker to claim privilege of freedom of speech for the Commons," although this petition is not recorded in the Roll of Parliament: Ferrers' Case twenty years later showed a more independent Commons relying on its own authority to liberate one of its Members.21

Suits Against Members n Benyon v. Evelyn (1664) From the "hands off" position of Fortescue C.J. in 1452, the Court of Common Pleas (Bridgeman C.J.) two hundred years later said inBenyon v. 18 Supra, note 13. 19 Ibid. 20 Hall's Chronicle, 1890 ed., p. 653, referred to by Evans C.J.H.C. in Re Clark and A.G. 21

Can. (1977), 81 D.L.R. (3d) 33 at 53. Supra, Chapter 11.

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Evelyn22 that the defendant Member, Evelyn, could be sued for debt while Parliament was sitting and that issuing the writ was not against the privileges of Parliament. The ratio of the case, however, was that the action should be barred by the statute of limitations and thus the finding respecting privilege was unnecessary. The case is nevertheless significant, because while the plaintiff argued that an earlier resolution of the House forbade impleading a Member and thus the statute of limitation during the interregnum did not apply, the court denied that decisions of the House regardingprivileges should necessarily be accepted by the courts as conclusive.23 That resolutions or resolves of either House of Parliament, singly, in the absence of the parties concerned, are not so concludent in courts of law, but that we may (with due respect nevertheless had to those resolves and resolutions) nay, we must give our judgment according as we, upon oath, conceive the law to be, though our opinions fall out to be contrary to those resolutions or votes of either House.24

Suits Against Returning Officers n Barnardiston v. Soame (1674) The attitude of the court in the Benyon v. Evelyn matter was reversed in 1674 in Barnardiston u. Soame.25 The plaintiff, a parliamentary candidate, sued the defendant returning officer in the King's Bench for a false return. The plaintiff won at trial but it was reversed on appeal. The Court of Exchequer Chamber held on appeal that the trial of elections and the functions of returning officers were matters of privilege within the exclusive jurisdiction of the House of Commons. However, the court also went on to refer to the right of the Houses to determine the extent of all of their privileges. Soon after the revolution of 1688, the House of Lords affirmed the decision of the Exchequer.26

22 23

24 25 26

(1664) 0. Bridg. 324, 124 E.R. 614. Hatsell seemed to think that the instituting of suits against Members was successfully resisted in the House of Commons (vol. 1, c. 3, p. 173); see Debates in the U.K. House of Commons on First Report from the Committee in the case of Sir Francis Burdett, vol. xvii, App., p. 88; the above is cited in 124 E.R. 614 at p. 621-2, fn. (r). However, on June 8,1810, the U.K. House of Commons negatived a motion declaring the commencement of an action against a Member to be a breach of privilege: U.K. Debates,vol.17 , p. 513. Benyon o. Evelyn is also important because it raised many of the main principles that were to be adopted later by the courts. See 48 Rev. Rep 326 and 416. 6 State Tr. 1063, aff'd 6 State Tr. 1117 (H.L.). House of Lords Journals, June 25, 1689.

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Effect of Speaker's Warrants v. Habeas Corpus n Earl of Shaftesbury (1677) A case for the supremacy of the House of Lords arose in 1677, involving the Earl of Shaftesbury,27 who had been held in contempt of the House of Lords and was committed to the Tower for suggesting in debate that the Parliament was dissolved. The Court of King's Bench before whom counsel for the Earl brought an application for habeas corpus felt that it had no jurisdiction in respect of a warrant "for high contempt" without any details being set out.28 This position, it will be seen, is still the law in the U.K., and until the Charter, also the law in Canada.29

Speaker Acting in Pursuance to an Order of the House n Sir William Williams (1684) The Speaker, Sir William Williams, in 1684 was fined for carrying out an order of the House to print and publish a paper well known at that time as "Dangerfield's Narrative." This case has been condemned, because while it was an illegal act for the House of Commons to order defamatory publication, the Speaker's action in authorizing the publication pursuant to the order of the House was protected by the Commons protestation of 1621, which was affirmed by the Bill of Rights, 1689.30 Accordingly, the court quite improperly found it had jurisdiction in these circumstances. Denman Ch.J., in Stockdale v. Hansard, took great exception to this decision.31

Suits Against Officers of Parliament • Jay v. Topham (1689) Jay v. Topham in 168932 involved a decision against Topham, the Sergeant-at-Arms of the House of Commons, for taking a Member, Jay, into custody pursuant to an order of the House. Topham informed the House and the House resolved that in failing to uphold Topham's plea before the court that the court had no jurisdiction in the matter, the judgment of the Court of King's Bench was "illegal, and a violation of the privilege of Parliament, and pernicious to the rights of Parliament." The 27 6 State Tr. 1262. The Earl was further held in contempt by the House of Lords for having applied to the Court of King's Bench; see note 26 at 1300. 29 SeeBurdett v. Abbot (1811), 14 East 1. This case concerning the Earl of Shaftesbury is important primarily for the matter of the warrant. 30 1 Will. 8z Mar., sess. 2, c. 2, Article 9. 31 3 State Tr. N.S. 723 at 863; 9 Ad. & El.1 at p. 124-6; and see also Bayley J. in 14 East 1 at 159. See also supra, Chapter 5, notes 9, 10. 32 (1689), 12 State Tr. 821. 28

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two judges were brought before the House and questioned and taken into the custody of the Sergeant-at-Arms. The judges were in effect called upon to explain their judgment, and while they said before the House that it would have been proper to plead that it was outside the jurisdiction of the court if the entire matter had been transacted in the House, Topham's petition to the House shows that the judges apparently refused to entertain his plea that they had no jurisdiction. It was the last time the House of Commons in the U.K. brought a judge before the House and committed him to prison, and the treatment of the judges by the House of Commons has been the object of severe judicial censure.33

Suits Involving Elections n Ashby v. White (1703) In 1703, the case of Ashby u. White arose, in which the House of Lords, in upholding the dissenting judgment of Holt C.J.,34 resolved35 that a man who has a right to vote at an election for Members of Parliament may maintain an action against the returning officer for refusing to allow him to vote. His right to vote was a franchise that was determinable at law and was not a matter that was first required to be determined by the House of Commons, because the question of eligibility to vote arose only incidentally in the case where the House of Commons was involved in the trial of a controverted election. The case is celebrated because of the unresolved conflict that the decision represented for the two Houses. The House of Commons attempted to overcome the decision of the House of Lords because of its effect on the House's interpretation of privilege. It will be recalled that in Barnardiston v. Soame,36 the House of Lords affirmed the judgment that held that the trial of election and functions of the returning officer were matters of privilege within the exclusive jurisdiction of the House of Commons, i.e. a parliamentary candidate may not sue the returning officer for a false return. Thirty years later, in Ashby v. White, the House of Lords held that the court has the right to entertain an action by an elector against a returning officer for refusing to let him vote, concurrent with the privilege of the House of Commons, while trying a case of controverted election, to determine whether the elector has a right to vote. In other words, "the courts of law are not bound by the opinion of the commons House on matters of election."37 Ashby v. White also thus stands for the right to vote.

33 See May, 21st ed., p. 148, where he cites Lord Ellenborough in Burdett v. Abbot, supra, at page 109; and Denman Ch.J. in Stockdale u. Hansard, at page 869. 34 2 IA. Raym. 938, 92 E.R. 126 (H.L.). 35 The actual vote was 50 for, 16 against: Journals House of Lords, January 14, 1703. 36 Supra, note 25. 37 Per Denman Ch.J. in Stockdale v. Hansard (1839), 48 Rev. Rep. 326 at 419.

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nR. v. Paty (1704) The two Houses never reconciled. The House of Commons found Ashby's action in prosecuting White a breach of privilege and resolved that it was the right of the House of Commons to examine and determine matters relating to the election of its Members and that it was a breach of privilege to bring an action in court to determine the right of persons to vote.38 The House of Lords passed a counter-resolution. An even greater conflict arose the next year. In 1704, Paty and four others (the Aylesbury men) were committed to jail by the House of Commons. The action39 stemmed from the same election involved in Ashby v. White. When they were brought before the Queen's Bench by writs of habeas corpus, the warrant of the Speaker of the House of Commons showed on its face the cause of commitment, which was for having commenced an action against the returning officers of Aylesbury for refusing their votes. The majority of the court held that the warrant could not be set aside for reasons of irregularities, and that the court had no jurisdiction, the House of Commons being the proper judge of its own privileges. Holt C.J. dissented by saying that while the House had power to commit for contempt, this power was examinable by the courts and if the warrant disclosed no breach of privilege (as he held there was not, in this case), there was no contempt, and Paty et al should be discharged. When the House of Commons was informed that Paty had attempted to commence appeal proceedings, which would bring the matter before the House of Lords, the House of Commons resolved that an address be presented to the Queen emphasizing its right to commit for contempt and its exclusive jurisdiction in the matter, and that counsel and others involved in prosecuting the writs of habeas corpus were "guilty of conspiring to make a difference between the Lords and Commons"40 and ordered them to be committed into the custody of the Sergeant-at-Arms.41 This conflict was not resolved. The House of Lords attempted to assist counsel by means of resolutions prohibiting their arrest or detention, and resolved that in committing the five men of Aylesbury, the Commons had "claimed a jurisdiction not warranted by the Constitution."42

39 40 41

42

Jurisdiction over such matters in the U.K. was eventually given to the courts in 1868 (31 & 32 Victoria, c. 125), and in Canada, it was given to the courts in 1874 (37 & 38 Victoria, c. 10). R. v. Pat>, (1704), 2 IA. Raym. 1105, 91 E.R 431. U.K. C.J. (1702-04), p. 550, cited in May, 21st ed., p. 149-50. Erskine May sets out that the Sergeant-at-Arms had to admit defeat in pursuing one counsel: "he got out of his chamber in the temple, two pairs of stairs high, at the back window by the help of his sheets and rope" (19th ed., p. 186). U.K. L.J. (1701-04), p. 677-8.

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The House of Lords also denied the right of either House to create new privileges.

Review In reviewing to this point the evolution of the issue of jurisdiction, one of the themes that is most evident is the complete lack of confidence that would be felt by any litigant of the day in the area of parliamentary privilege and, for that matter, the trepidation that would be felt by counsel for such a litigant and for themselves. It will be seen that the courts had started to insist on examining the lex parliamenti as they would any other branch of the general and public law, albeit in the face of continued opposition from the House of Commons. What had begun as an obvious reluctance by the courts in Thorpe's case became a strong dictum in Benyon v. Evelyn, and eventually a decision of the House of Lords sitting as a court of appeal in Ashby v. White went a long way by holding that there was at least a concurrent jurisdiction; even though the House of Commons had jurisdiction to determine who is eligible to vote when engaged in the trial of a controverted election, the courts also had jurisdiction to determine rights (such as the right to vote) in the context of a recognizable cause of action. The confusion arose out of the role of the old High Court of Parliament. It was both a court and a legislature, and accordingly possessed greater powers than the King's Bench. However, it was not until centuries after the separation and some time after the House of Commons" and the House of Lords each began insisting upon rights that they had only as a constituent element of the High Court of Parliament that the courts began to: 1.

call into question decisions of the House on a matter of privilege;

2.

consider that the lex et consuetudo parliamenti, rather than being a separate law unknown to the courts, was part of the general and public law and was examinable as in the case of admiralty or ecclesiastical law; and

3.

question that resolutions of either House respecting privilege were binding on the courts as a judicial precedent.

For example, in 1762 in the U.K., Lord Mansfield held that the House had no power to impose a fine, having abandoned it many years previously.44 Not until the nineteenth century was there resolution (if at all) of the disharmony that existed between the King's Bench and the House of 43 Ferrers' Case (1542), 0. Bridg. App. 625, 124 E.R. 782; see also Chapter 11. 44 R. v. Pitt (1762), 3 Burr. 1335, 96 E.R. 214.

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Commons, because as late as 1771, the court in the case of Brass Crosby45 was yet maintaining that it had no knowledge of the laws and privileges of the House. This argument in fact was put forward as late as 1839 in Stockdale v. Hansard by the Attorney Genera1.46

Further Suit Against Officers of Parliament nBurdett v. Abbot (1811) In 1811, the Speaker of the House of Commons47 and the Sergeant-at-Arms48 were sued for trespass as a result of the Sergeant-at-Arms taking action pursuant to a warrant of the Speaker that was in turn authorized by a resolution of the House of Commons. The plaintiff Member of the House of Commons had been found guilty of breach of privilege for having published a libelous reflection on the rights and privileges of the House. The House ordered that he be imprisoned, and the Speaker issued his warrant accordingly. In executing the warrant, the Sergeant-at-Arms broke into and entered the plaintiff's house after the plaintiff said he refused to submit to the warrant, as he considered it illegal. In examining the history of parliamentary privilege, the court noted that the House of Commons started to punish for contempt in the sixteenth century, particularly in Ferrers' Case and Hall's Case of 1580 (which is the first instance of a libel published by the House49), by having offenders committed and expelled and also fined. Ellenborough Ch.J. referred also to Lord Holt's dissenting judgment in Ashby v. White, which was confirmed by the House of Lords, and to Holt's judgment in R. v. Paty, where he did not mention the right of the House of Commons to commit but where he questioned the right of the House of Commons to commit for a "breach of privilege" unknown to the law (i.e. the act of suing a returning officer for refusing to receive the plaintiff's vote). In fact, the court in Burdett v. Abbot found that the power to commit exercised by the Houses of Parliament was exercised by each House "ever since their separation"50 and "was not limited to contempts committed in the face of the House."51 While the competence of the House of Commons to commit for a contempt and breach of privilege is not to be questioned, the court pointed 45 46 47 48 49 50 51

(1771), 3 WiLs. 188, 95 E.R. 1005. 3 State Tr. N.S. 723 at 774-5. Burdett v. Abbot, supra, note 30. Burdett v. Abbot; Burdett v. Colman (1817), 5 Dow 165, 3 E.R. 1289. 14 East 1 at 142. Ibid., at 141. Ibid., at 148.

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out that competence to commit for all matters and in all cases had never been asserted or claimed on the part of either House of Parliament, and that the House of Commons did not claim to a general criminal jurisdiction. The court in Burdett u. Abbot went on: If a commitment appeared to be for a contempt of the House generally, I would neither...inquire further: but if it did not profess to commit for a contempt, but for some matter appearing on the return, which could by no reasonable intendment be considered as a contempt of the court committing, but a ground of commitment palpably and evidently arbitrary, unjust and contrary to every principle of positive law, or natural justice; I say, that in the case of such a commitment (if it ever should occur, but which I cannot possibly anticipate as ever likely to occur) we must look at it and act upon it as justice may require from whatever court it may profess to have proceeded.52 The reason given by Ellenborough Ch.J. for such a power to commit was that it was "essentially necessary for the House of Parliament to have it; indeed that they would sink in utter contempt and inefficiency without it. Could it be expected that they should stand high in the estimation and reverence of the people if whenever they were insulted, they were obliged to wait the comparatively slow proceedings of the ordinary course of law for their redress?...they certainly must have the power of self-vindication and self-protection in their hands...: they have such power."53 The judgment was eventually confirmed by the House of Lords.54 Since the House of Commons did not take any action (such as committing counsel for the Member), this demonstrated to the court that the Commons' right to commit is part of the general and public law and examinable in the courts55 because the House voluntarily submitted that ancient and undoubted privilege to the courts by ordering the Attorney General to plead to the jurisdiction in that case (Burdett v. Abbot).

Stockdale v. Hansard (1839) Twenty-eight years later, the issue of jurisdiction arose again in the confrontation between the House of Commons and the Queen's Bench in Stockdale v. Hansard.56 Once again the House of Commons voluntarily submitted its privileges to the court while it, at the same time, committed both the Sheriff of Middlesex, for refusing to refund the money levied following judgment in one of Stockdale's four actions, and Stockdale and 52 53 64

55

56

Ibid., at 151. Ibid., at 152. (1817), 5 Dow 165 at 199. Burdett v. Abbot and Lord Shaftsbury's Case (1677), 6 State Tr. 1262, regarding the House of Lords, are the two leading cases in respect of the conunital power against the authority of the courts not to release on bail or on habeas corpus. May, 19th ed., p. 182; 21st ed., p. 150-1. (1839), 9 Ad. & El. 1; 112 E.R. 1112, 48 Rev. Rep. 326.

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his solicitor, the former for having the sheriff levy and the latter for commencing the fourth action on behalf of Stockdale while Stockdale was in prison.

Facts The sequence of events was as follows: 1. In 1836, Stockdale sued Hansard for the publication of a report on prisons that had been tabled in the House and in which a book he had published was described in a manner that he conceived to be libelous. Hansard pleaded the order of the House to print the report. Denman Ch.J. said this was no defence and the jury found for Hansard, because they considered the description of the book as contained in the report to be accurate. 2. In 1837, a committee of the House examined remarks of Denman Ch.J. that the order of the House was no defence, and ultimately the House resolved: (a) that the publication of parliamentary reports, votes, and proceedings was an essential incident to its jurisdiction; (3) that the House had sole and exclusive jurisdiction to determine upon the existence and extent of its privileges; (c) that to dispute these privileges by court action was a breach of privilege; and (d) that for any court to assume to decide upon matter of privilege inconsistent with the determination of either House of Parliament was contrary to the law of Parliament 57 3. Stockdale nevertheless commenced another action. The House did not respond by acting upon or implementing its resolution, but rather directed the Attorney General to defend the action by pleading the privileges of the House and the resolutions it had adopted following the first action. 4. In this second action58 the court denied the defence of privileges of the House and the resolutions of the House aforesaid. The court found for the plaintiff and awarded damages and costs. 5. The House once again did not act upon its earlier resolutions but rather ordered that the damages and costs be paid under the special circumstances of the case. It also determined that while the plaintiff and his legal advisers would not be punished, in case of future actions Hansard should not defend the action, and the parties to the action and legal advisers should be punished for their contempt. 57 58

U.K. C.J. (1837), p. 418. Supra, note 56.

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7.

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Another action was nevertheless brought by Stockdale for another publication of the same report. Hansard did not defend the action and the plaintiff got judgment against Hansard in default, and damages were assessed. The Sheriff of Middlesex levied for the amount of the damages but delayed paying the money to Stockdale because he had been served in the meantime with copies of the resolutions of the House aforesaid. At the opening of Parliament in 1840, the House committed Stockdale to the custody of the Sergeant. When the sheriffs were asked to refund the money for which they had levied as a result of the default judgment, they refused, so they too were committed for contempt, and subsequent habeas corpus proceedings proved unsuccessful — the Sheriff paid the money to Stockdale.59

8. 9.

Howard, Stockdale's solicitor, was reprimanded by the House. While in prison, Stockdale commenced a fourth action by the same solicitor who was in turn committed to prison by the House; once again Hansard was ordered by the House not to defend the action and once more judgment was entered against the defendant Hansard.60 10. Since it was apparent that even prison could not put an end to the institution of legal proceedings by Stockdale and his solicitor, the ultimate defence to any such action for the publication of parliamentary papers, a statute, was provided by the enactment of the Parliamentary Papers Act, 1840. It was during the second action that the court, composed of Denman Ch.J. and three others, heard the Attorney General, Sir John Campbell, in defence of the alleged privilege of Parliament and resolution of 1837. This landmark case remains the most important in matters of parliamentary privilege, containing as it does one of the best accounts of the law of Parliament and the view of the courts in respect of their power to decide on questions of privileges of Parliament.

The decision Denman Ch.J. made the following points in arriving at his decision to give judgment for the plaintiff: 1. While the Attorney General argued that the order of the House is not to be questioned by an inferior court (a) The order to publish a libel that had been presented to Parliament but otherwise was not part of the proceedings of 59 60

See the case of Sheriff of Middlesex (1840), 11 Ad. & El. 273. See Howard v. Gosset (1845), 10 Q.B.D. 359, where Howard sued the Sergeant-at-Arms and others for having taken him into custody and committed him to prison. (See also May, 21st ed., p. 153-4.)

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Parliament was illegal and an unknown privilege, since the Attorney General could not prove it was a privilege on the grounds of necessity, practice, or universal acquiescence, and "supposed necessity soon dwindled...down to a very dubious kind of expediency;"61 the practice since 1640 of publishing papers uninjurious to the character of a fellow subject." With regard to acquiescence, the court pointed out that early acquiescence was the lesser evil to "incurring the displeasure of the offended House" ;62 "the eighteenth century is replete with instances of the House of Commons abusing its privileges."63 (b) The court must look at the grievance of the plaintiff to determine whether it involves a right for which there is a remedy, and whether the defendant has a good defence in law. (c) To say that the order of the House may not be questioned in any way is to say that the House of Commons is supreme when only Parliament is supreme: "the proposition is therefore wholly untenable, and abhorrent to the first principles of the constitution of England."64 2.

While the Attorney General stated that the courts may have no knowledge of the privileges of Parliament, his argument here ran in a circle; in any event, in 1704, Lord Holt in R. v. Paty65 denied this presumption of ignorance; in reality, the reluctance of Fortescue C.J. in Thorpe's Case66 to assume jurisdiction has been construed into a judicial decision that in their own courts the judges would decline to enforce privilege if it comes before them in the form of an exaggerated claim by the House of Commons.

3.

While the report of the House denied any jurisdiction in the courts to decide on matters of privilege, the Attorney General conceded that when a matter of privilege comes before the courts not directly but incidentally, they may, because they must, decide it; otherwise, he said, there would be a failure of justice. Apart from acknowledging that this concedes that the courts have at least some knowledge on the subject, Denman Ch.J. pointed out that the rule was difficult to apply. In any event, he said Ashby v. White67 decided that courts could decide directly (the right of a person to vote) what the House of Commons also may decide indirectly (i.e. the issue of the right of the

61 62 63

64 65 66 67

48 Rev. Rep. 326, at 429. Ibid., at 432. 48 Rev. Rep. 326, at 334 (see Chapter 12 supra, note 13). Ibid., at p. 399. (1705), 2 Ld. Raym. 1105, at 1114, 91 E.R. 431. Supra, note 13. Supra, note 34.

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same person to vote that arises during the hearing of a trial of a controverted election).68 4.

When the Attorney General argued that each House is the sole judge of its privileges, each House is really claiming anything as its privileges. But the Attorney General admitted that either House could not make declarations of general law, i.e. they would have no weight. Accordingly, any declaration by the House must be inquired into by the courts to determine whether it be a matter of privilege or a declaration of general law. If it is a matter of general law "it cannot cease to be so by being invested with the imposing title of privilege";69 "the power claimed is arbitrary and in-esponsible."70

5.

The court must determine whether the subject matter does fall within the jurisdiction of the House of Commons; if it does, the court cannot question its judgment; but for the House of Commons to contend that it can bring any subject matter within its jurisdiction by declaring it to be so because it is a court, the court replied that even a court cannot give itself jurisdiction by adjudging that it enjoys it.71

6.

Furthermore, while declaring this publication to be their privilege, the House of Commons admits that it cannot create new privilege. However, how can a court determine whether a particular claim is part of its privilege without inquiring into it to determine whether it is a new privilege or an existing privilege?72

n Ratio Decidendi The ratio of Stockdale v. Hansard is clear: the courts will not accept the decisions of the House in any matter that comes before them but are entitled to inquire as to whether it is a matter within their jurisdiction, i.e. whether there is a proper claim of privilege. The court embarked on the inquiry and determined that the claim of the House of Commons that it had the privilege of publishing defamatory matter with impunity was not proven.

The Present Position in the U.K. The courts continue to recognize the need for an exclusive Parliamentary jurisdiction where the dignity and efficiency of the House

68 69 70 71 72

48 Rev. Rep 326, at 424-6. Ibid., at 424. Ibid., at 426. Ibid., at 427. Littledale J., at 437.

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cannot be upheld without it." Furthermore, "whatever is done within the walls of either assembly must pass without question in any other place."74 This was followed by Bradlaugh u. Gossett in 1884, which declared in no uncertain terms that the courts have no jurisdiction over acts relating to the internal management of the House.75 The English courts have, as follows, on two occasions summed up the present position respecting jurisdiction. In 1963 Scarman J., in arriving at the conclusion that parliamentary privilege protected a peer from arrest on a writ of attachment, the purpose of which was to compel performance of acts required by civil process rather than to punish for contempt of a criminal court, said that while Parliament would consider the nature of the process and all the circumstances of the case before deciding whether to regard the arrest of a Member of either House as an invasion of privilege, he, sitting in the High Court of Justice, need not take the law to be applied from the practice of the House (of Lords). "I think that I have to look not only to the practice of the House but also to the common law as declared in judicial decisions in order to determine in this particular case whether privilege arises, and if so its scope and effect" 76 (emphasis added). More recently, in 1993 the House of Lords in Pepper u. Hart said: Although in the past the courts and the House of Commons both claimed the exclusive right to determine whether or not a privilege existed, it is now apparently accepted that it is for the courts to decide whether a privilege exists and for the House to decide whether such privilege has been infringed (see Erskine May, Parliamentary Practice (21st ed., 1989) (p. 147-60).

Thus, Erskine May, p. 150, says: In the 19th century, a series of cases forced upon the Commons and the courts a comprehensive review of the issues which divided them, from which it became clear that some of the earlier claims to jurisdiction made in the name of privilege by the House of Commons were untenable in a court of law: that the law of Parliament was part of the general law, that its principles were not beyond the judicial knowledge of the judges, and that it was the duty of the common law to define its limits could no longer be disputed.

Again it is said (p. 154): Though events have revealed no single doctrine by which all issues of privilege arising between Parliament and the courts may be resolved, many of the problems of earlier years which are dealt with above have 73 74

Burdett u. Abbot (1811), 14 East 1 at 152 and 159. Stockdale v. Hansard, supra, note 62 at 403.

75

(1884), 12 Q.B.D. 271.

76

Stourton v. Stourton, [1963] 1 ALL E.R. 606 at 608, cited in May, 21st ed., p. 157.

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been substantially solved. Neither House is by itself entitled to claim the supremacy over the courts of law enjoyed by the undivided medieval High Court of Parliament. Since neither House can by its own declaration create a new privilege, privilege may be considered to be capable of being ascertained and thus judicially known to the courts.77 It will be seen that it is not incorrect to say that the British and Canadian positions regarding jurisdiction are not at all dissimilar. One distinction is that there is no written Constitution in the U.K. that would compel the Houses of Parliament to adhere to any of its relevant provisions. Accordingly, unlike Canada (or Australia), the English judiciary will restrain itself from interference in any part of the law-making processes of Parliament (see infra).

The position in Canada The issue of jurisdiction in matters of parliamentary privilege was never in dispute in Canada from the first occasion in the nineteenth century when questions came before the court. The Canadian courts followed the practice of the King's Bench in England and in reality granted to the legislative assemblies and councils powers that were subsequently attributable only to the U.K. House of Commons by the lex parliamenti.78 Thus, in the case of Tracey,79 the court of King's Bench for the District of Quebec, in permitting the Legislative Council of Quebec to imprison a newspaper publisher for contempt by publishing a libel against the House, granted it more power than it had. The Privy Council in Kielley v. Carson spelled out in 1842 the authority of colonial assemblies respecting their privileges in the absence of specific authority.99 It held, contrary to earlier decisions of the Canadian courts and assemblies, and its earlier (1836) decision in Beaumont v. Barrett, that the assemblies did not have the penal power of 77 78

79

so

[1993] 1 ALL E.R. 42 (H.L.) at 73-4. See Kielley v. Carson (1842), 4 Moo. P.C.C. 63; 13 E.R. 225 (PC.). One exception took place in 1812 in Upper Canada when the Chief Justice (who was also Speaker of the legislative council) was found to be "guilty of a violent breach of the privilege" of the legislative Assembly for having released a person on habeas corpus who had been committed by the Legislative Assembly. The reason (given in the form of a reply to a message from the legislative council to the Legislative Assembly) was because the Speaker's warrant was defective: it did not properly recite the order of the Legislative Assembly on which it was based, nor did it recite that the Speaker was authorized to issue his warrant. Notwithstanding this explanation, the Legislative Assembly adopted an address to the Prince Regent informing him of the violation and that it represented an interference on the part of the judicial authority (Journals, Upper Canada Legislative Assembly, February 29; March 2, 1812). (1832), Stuart's Reports L.C.K.B. 478; see also references at p. 517 of the report in the case of Ludger Duvernay. See also McNab u. Bidwell & Baldwin (1830), Draper 144 (C.A.). See further ex parte Monk (1817), L.C.R. KB., 120. See also Chapter 11. (1842), 4 Moo. P.C.C. 63.

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the U.K. Commons but only the power to defend itself by removing a person who obstructed the proceedings. Section 18 of the Constitution Act, 1867 laid the foundation for the courts to be able to examine the law of parliamentary privilege as they would examine the public and general law of Canada. Pursuant to s. 18, the Parliament of Canada passed what is now s. 5 of the Parliament of Canada Act, which clearly shows that the law of parliamentary privilege is examinable by the courts: Such privilege, immunities and powers are part of the general and public law of Canada, and it is not necessary to plead the same, but the same shall, in all courts in Canada, and by and before all judges, be taken notice of judicially. In fact, the same Act appears to anticipate an inquiry concerning the privileges, immunities, and powers of either House by providing in s. 6 that in such an inquiry any copy of the Journals of either House printed or purported to be printed by order of either House were so printed. While a number of cases involving some aspect of parliamentary privilege have come before the Canadian courts, there has never been a confrontation like that which occurred in Stockdale v. Hansard. The courts in Canada from the earliest times have recognized the right of the legislature to commit for contempt.81 It was previously seen that Kielley v. Carson changed that in 1842. In 1885 the Ontario Court of Appeal in R. v. Bunting held that: The courts have truckled too much to the assumed privileges of Parliament but the cases of Ashby v. White and Stockdale v. Hansard have stripped the law of Parliament of all mystery; and have brought it, as part of the general law, within the judgment of the legal courts of the country.82 In that instance, the court held that a set of facts could provide on the one hand cause for criminal prosecution by the courts, and on the other, cause for being found to be in contempt of the legislature, i.e. two different offences. Thus, while Bunting and the other accused could be charged for attempted bribery of Members of the Ontario legislature, the legislature could also hold the same persons in contempt. The Bunting case confirms Denman's position in Stockdale v. Hansard that the court determines the extent of a claimed privilege of Parliament, as it would look into the legal justification for any right claimed.

81 82

See exparte Monk in regard to freeing a person at prorogation (1817), Stuart's Reports L.C.KB. 120, and McNab v. Bidwell (1830), Draper 144 (CA). (1885), 7 O.R. 524 at 538 (CA).

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In Wallace v. AG. B.C.,83 it was held that the court does have power to define the limits of the privilege of the B.C. legislature, although the legislature, is not bound by its decision. This was in relation to provincial legislation regarding the independence of the Member from the Crown.

nRe Clark and A.G. Can (1977) (a) The decision of the court As a result of the decision of Evans C.J.H.C. in Re Clark and AG. Canada," the House of Commons debated the interpretation of parliamentary privilege made by the court (see infra). This case involved a motion by five Members of the House of Commons for judicial review of the Uranium Information Security Regulations, SOR/76-644, seeking a declaration that, inter alia, the "Regulations do not prohibit Members of the House of Commons from releasing or disclosing any such documents in the course and in the furtherance of Parliamentary debate." Evans C.J.H.C. cited the arguments in the U.K. on the side of the House of Commons and on the side of the courts, which are set out in May85 and which were referred to by the House of Lords.88 The House of Commons claims that its admitted right to adjudicate on breaches of privilege implies in the theory the right to determine the existence and extent of the privileges themselves. It has never expressly abandoned its claim to treat as a breach of privilege the institution of proceedings for the purpose of bringing its privileges into discussion or decision before any court or tribunal elsewhere than in Parliament. In other words, it claims to be the absolute and exclusive judge of its own privileges, and that its judgments are not examinable by any other court or subject to appeal. On the other hand, the courts regard the privileges of Parliament as part of the law of the land, of which they are bound to take judicial notice. They consider it their duty to decide any question of privilege arising directly or indirectly in a case which falls within their jurisdiction, and to decide it according to their own interpretation of the law.

He noted that the House of Lords merely reflects that "the old dualism remains unsolved"87 and went on to set out May's conclusion at page 202: Since the House of Commons has not for a hundred years refused to submit its privileges to the decision of the courts, it may be said to have given practical recognition to the jurisdiction of the courts over 83

(1977), 82 D.L.R. (3d) 423 (B.C. S.C.).

84 85

Re Clark and AG. Can (1977), 81 D.L.R. (3d) 33.

86

Re Parliamentary Privilege Act 1770, [1958] A.C. 331 at 353-4 (PC.). Supra, note 84 at p. 52.

87

19th ed., p. 200-1.

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the existence and extent of its privileges. On the other hand, the courts have always, at any rate in the last resort, refused to interfere in the application by the House of any of its recognized privileges. It is a remarkable fact that the modern solution of the problem was anticipated by Clarendon at the beginning of the struggle between the House of Parliament and the courts. "We are," he represents the Commons as saying, "and have always been confessed the only judges of our own privileges: and therefore whatsoever we declare to be our privilege is such: otherwise whoever determines that it is not so makes himself the judge of that whereof the cognizance only belongs to us." And he solves the "sophistical riddle" by showing that the proposition is only true if "rightly understood." "I say the proposition rightly understood: they are the only judges of their privileges, that is, upon the breach of those privileges which the law had declared to be their own, and what punishment is to be inflicted upon such breach. But there can be no privilege of which the law doth not take notice, and which is not pleadable by, and at law."88 In summing up the British position, Evans found that "[clonsequently, the Courts apparently have an implicit jurisdiction to deal with questions of parliamentary privilege."89 With respect to Canada, however, he found that on the basis of Roman Corp. v. Hudson's Bay Oil & Gas Co., "...the Courts of law in Canada have jurisdiction to adjudicate on matters involving the privileges of Members of Parliament." In so finding, he overruled the objection of the respondent that the courts had no jurisdiction to determine the nature and extent of parliamentary privilege and that Parliament is the source, and sole judge, of the privilege of its Members. He also pointed out that one of the questions he was asked to determine was whether the regulations override or abridge parliamentary privileges.98 Section 5 of the Parliament of Canada Act also says that these rights, immunities, and privileges are part of the general and public law of Canada and are to be taken notice of judicially. In his judgment, Evans concluded as follows (in respect of this aspect of the judgment only):91 Following the authorities set out above, I have come to the conclusion that a Member of Parliament may utilize information proscribed by SOR/76-644 in Parliament and may release that information to the media. However, I hold that the privilege of the Member cannot be extended to protect the media if they choose to release the information to the public. Nor do I consider that the "real" and 88 History of the Rebellion, Book P/, quoted by Mcllwain, p. 240-1. Supra, note 84 at 52. 90 Ibid., at 51. 91 Ibid., at 58. 89

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"essential" functions of a Member include a duty or right to release information to constituents. The cases indicate that the privilege is finite and I would not be justified in extending the privilege to cover information released to constituents.

(b) Debate in House of Commons concerning Re Clark and A.G. Canada (1977) The judgment, particularly in respect of this paragraph, was raised in the House of Commons by Opposition House Leader Mr. Walter Baker92 on November 16, 1977. He felt that while it accorded with judicial interpretation, he was "not sure it is consistent with procedural authorities and rulings by Mr. Speaker in this House."93 The discussion in the House was not unanimously for or against the judgment. It nevertheless provided a rare examination into the jurisdictional issue, albeit all too brief. Mr. Baker submitted inter alia that the conclusion reached by Evans C.J.H.C. "violates the right of the House to determine the extent of privilege."94 This was strongly supported by the Right Honourable John G. Diefenbaker95 and by the Speaker" when they both stated that the rights, immunities, and privileges of Members of the House of Commons are to be decided by the House and not by any other body or court outside the "High Court of Parliament." . Mr. Stanley Knowles97 and Mr. Sinclair Stevens," on the other hand, submitted that the judgment was incorrect when Evans C.J.H.C. suggested that Members could not convey to their constituents things they had learned in the House and that journalists must be careful about reporting what goes on in the House.99 92 93 95

96 97 98

99

As he then was; subsequently Hon. Walter Baker, P.C., the Member for Nepean—Carleton. Debates, p. 934. Debates, p. 935. Ibid., p. 936. Ibid. As he then was; subsequently Hon. Stanley Knowles, PC., the Member for Winnipeg North Centre. As he then was; subsequently Hon. Sinclair Stevens, P.C., the Member for York—Simcoe. Debates, November 16, 1977, p. 936-8. If the Member published information to the media, because such an action would not be part of a proceeding in Parliament the Member would not be clothed with parliamentary immunity. (See Chapter 5 relating to proceedings in Parliament.) While under these same circumstances the media would not, a fortiori, be in any better of a legal position than the Member, the fact that the Member disclosed the information in Parliament would permit the media to report on what was said in the same way that anyone may report on what was said in Parliament (see Chapter 7), particularly since the ingredient of "secrecy" would then be absent.

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The participation of the Government House Leader, the Hon. Allan J. MacEachen, P.C., related principally to the proposed motion based on the alleged question of privilege, and suggested that there was no evidence that a Member had been impeded in the performance of his duties. He agreed with Maym that the House of Commons is unable to claim supremacy in the field of privilege that was enjoyed by the undivided High Court of Parliament: the present supremacy of Parliament is legislative and has nothing to do with the privilege jurisdiction of the House of Commons acting singly. Again referring to May, he said both Houses of Parliament admit they cannot claim a new privilege by simply declaring one; thus privilege is implicitly objective and ascertainable by the courts. When the Speaker subsequently ruled on the technical question of whether the matter raised by the Opposition Leader was a valid "question of privilege,"101 he repeated that "the privilege, rights, and immunities of Members of this House are in the first place to be decided by this House and not by another body."102 This was unfortunate, because the power of the House lies not in deciding what their privileges are but rather in deciding what actions may constitute a breach of the privileges known and recognizable as such by the courts, or a contempt of Parliament. The previous Speaker had in fact said in 1971:103 "In my view, parliamentary privilege does not go much beyond the right of free speech in the House of Commons and the right of a Member to discharge his duties in the House as a Member of the House of Commons." The privileges of the Members of the Senate and of the House of Commons of freedom of speech, freedom from arrest, exemption to attend court as a witness, and the right to ignore a jury notice are matters of law, and only Parliament may change the law. If another privilege was to be added or provided to Members or to the House of Commons itself — for example, reinstituting the same privilege to Members' staff that had been afforded to their servants until removed by statute in the eighteenth century, or reinstituting fines for contempt]." this could only be done by the Parliament of Canada and not simply by order of the House of Commons. However, where, for example, a person disobeys an order of the House and refuses to answer a question put to him by the House, the 100 101

102 103 104

May, 19th ed., p. 201; Debates, November 24, 1977, p. 1208-10. He ruled that there was no particular privilege alleged to have been infringed but rather it was an abstract matter in that the question that Mr. Baker had raised was really whether the judgment of Evans C.J.H.C. could in the future curtail the activities of a Member. Debates, December 5, 1977, p. 1540. Debates, April 29, 1971, p. 5337-8. See supra, note 42. The National Assembly of Quebec and the Houses of Parliament in Australia have enacted that they may impose fines.

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House alone may find that person in contempt of Parliament and commit the person. A court may examine the cause of the commitment if it is set out in the Speaker's warrant and may find that it discloses no breach of a known privilege. In the U.K. a court may not look behind a warrant that does not cite the cause of the commitment.105 While this was the law of Canada until 1982, the Charter has now required a person "charged" or "detained" to be informed of the reasons for their arrest or detention (see Chapter 14).

Internal Proceedings The courts agree that legislative bodies have exclusive jurisdiction over their own "internal proceedings." However, it is for the courts to determine whether a matter is an "internal proceeding. ”106 While the words of Article 9 of the English Bill of Rights, 1689 confirm the long-standing claim of the Houses of Parliament for security from outside interference, jurisprudence has narrowed the meaning of the broad terminology: "Art. 9 — that the freedom of speech, debates and proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament. " In Stockdale v. Hansard, the court rejected the Commons' claim to having exclusive jurisdiction over its privileges and established a judicial right to an independent determination as to what is privileged. N.B. Broadcasting, [1993] (1 S.C.R. 319) recently confirmed that the courts defer to the internal proceedings of legislative bodies (p. 384). Thus it affirmed the dicta in Bradlaugh v. Gossett that the Houses of Parliament are "the sole judge of the lawfulness of its proceedings" (p. 386). N.B. Broadcasting held and confirmed that the courts do not have jurisdiction when the matter of privilege in issue is one without which the legislative body could not uphold its dignity and efficiency. One of those matters of privilege is the right of the legislative body to control its internal affairs and proceedings free of interference from the Crown or executive, the courts or the public. Jurisprudence has also broadened the meaning of the terminology. The courts have ruled that they may not interfere in matters outside the debating Chamber or committee, such as the applicability of liquor laws within the precincts.1°7

105 106 107

See Chapter 11. The subject was also discussed in Chapter 11 in regard to the powers of legislative bodies. See R. v. Graham-Campbell, ex parte Herbert, [1935] 1 KB. 594.

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The exception would be where the legislation specifically applies to the Houses of Parliament or another legislative body.108 The courts have expanded the term "proceedings in Parliament" set out in the Bill of Rights,1689. This is evident by the phrases used by the courts — for example, "internal affairs of the House";1°9 "whatever is done within the walls of either assembly must pass without questions in any other place";no "It's said that the House of Commons is the sole judge of its own privileges, and so I assume as far as the proceedings in the House and some other things are concerned. "111 Accordingly, protection by privilege appears to be provided also to matters of internal affairs and matters such as employee-employer relations and non-parliamentary events within the precincts,112 the regulation of which has not been set out in a statute, and thus also subject to the Charter. Examples of internal proceedings or internal affairs include Bradlaugh v. Gossett (order excluding Member Bradlaugh "until he shall engage not further to disturb the proceedings of the House") and Gabias v. Legislative Assembly of Quebec and A.G. Quebec (orders excluding Member Gabias from Assembly). In both instances their rights claimed were exercisable only in the House or assembly. Examples of matters that are not "internal proceedings" and that thus prompt the intervention of the courts into the proceedings are Landers u. Woodworth, Bradlaugh v. Erskine, Kielley v. Carson, and Fielding v. Thomas. In each of these instances the person was suing an officer of the legislative body for actions taken against them in the name of the legislative body and that affected their liberty. Accordingly, the court looked into the validity of the privilege set out in its orders or resolutions and claimed in litigation between parties where the legislative body asserts the privileges as a defence. It becomes therefore necessary to determine their legality to do justice between the parties to the action (see Chapter 14). It will be noted that in these instances the court in effect "looked at" the orders or resolutions of the legislative body. There are other exceptions to the internal proceedings rule. They involve entrenched mandatory manner and form provisions of the Constitution.

108

For example, see Parliamentary Employment and Staff Relations Act, 1986, Stat. of Canada, 33-34-35 II, C. 41 (see also Chapter 11); Official Languages Act, R.S.C., 1985, C. 0-3, s. 2; Non-smokers' Health Act, Stat. of Canada (1988), c. 21, s. 2. 109 Lord Hewart C.J. in R. v. Sir R.F. Graham-Campbell and others, ex parte Herbert, [1935] 1 KB. 594 at 602. 110 Denman Ch.J. in Stockdale v. Hansard, 9 A.J.E. 1 at 114. tit Littledale J. in Stockdale v. Hansard at p. 162. 112 See Pachauri, p. 57-9.

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The Supreme Court of Canada ruled in 1985113 that the requirements of s. 133 of the Constitution Act, 1867 and of s. 23 of the Manitoba Act, 1870 respecting the use of both the English and French languages in the records and Journals of the House of Parliament of Canada (and of the legislatures of Quebec and Manitoba and the Acts of the Parliament of Canada and of the legislatures of Quebec and Manitoba) are mandatory and must be obeyed. Accordingly, that aspect of Bradlaugh v. Gossett affirmed in N.B. Broadcasting (at p. 386) wherein in "settling or departing from its own codes of procedure the House can practically change or practically supersede the law" no longer applies to Canada when consideringprocedure entrenched in the Constitution to be adopted in a House of Parliament or assembly. Those constitutional requirements regarding parliamentary procedure would include matters of quorum (s. 35) and voting (s. 36) in the Senate, quorum (s. 48) and voting (s. 49) in the House of Commons, the procedure to continue a House of Commons (s. 4, Charter), s. 53 and 54, concerning the procedure for the introduction of money bills, and s. 55, regarding the necessity for Royal assent.

113

The Manitoba Language Rights, [1985] 1 S.C.R. 721. The Constitution of two (2) Commonwealth countries provided the courts in those countries to rule that the Constitution prevails over certain orders of the legislative assembly. In Robati v. The Privileges Standing Committee of the Parliament of the Cook Islands and Speaker of the Parliament of the Cook Islands, the Court of Appeal of the Cook Islands (in effect three (3) judges of the New Zealand Court of Appeal), in an application by the defendant to strike out the claim of Robati, held that the order of the Parliament suspending indefinitely (until he apologized) the Member Robati for an "offence" that did not exist at that time was contrary to the constitutional provision that said an enactment (including "rule") may not "authorize the conviction of any person of any offence except for the breach of a law in force at the time of the act or omission." Equally, the Parliament did not have the right to impose an indefinite suspension in the absence of any provision in the Constitution permitting such a course (February 7, 1994, C.A. No. 156/93). The Cook Islands Court of Appeal relied on another Commonwealth decision out of the Supreme Court of Zimbabwe, viz. Smith v. Mutasa (1990), 1 L.R.C. (Const) 87. Ian Smith had been the Prime Minister of Southern Rhodesia. He had twice been found guilty of contempt of Parliament. After the second time, he was suspended by the House of Assembly for one year. He was also deprived of his salary and allowance. He sued only for their restoration. The Constitution provided that Parliament may provide for its privileges but unlike the U.K. Commons, the Zimbabwe Parliament may not enjoy privileges, rights and powers that are inconsistent with fundamental rights guaranteed by the Constitution. Furthermore, Parliament may impose only penalties or punishments that are authorized by statute. The Privileges, Immunities and Powers of Parliament Act of Zimbabwe provides for certain punishment and penalties for breaches of privilege and contempt but the Act does not provide for the suspension of a Member's salary and allowances in cases of contempt. Accordingly, the House of Assembly in suspending the Smith salary and allowances for one year acted unlawfully. The court also said that Smith had a proprietary right to his salary and allowances and since the Constitution protects such rights, the Legislative Assembly contravened the Constitution by depriving him of his salary and allowances, i.e. it exceeded itsjurisdiction.

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As regards procedural requirements laid down by the legislative body itself, or other non-Constitution enactment, it seems likely that Bradlaugh v. Gossett otherwise remains good law in Canada.114 Accordingly, "internal proceedings" are proceedings that do not affect the rights of persons that may be exercisable outside the House of Commons because those rights are within the proper jurisdiction of the courts. Thus the order to print the defamatory paper in Stockdale v. Hansard was not an "internal proceeding"; there the court did examine the proceedings of the House to determine legality. Should the same situation now arise, of course, the Parliamentary Papers Act, 1840 (Parliament of Canada Act, s. 7, 8, and 9) would be a complete answer to the claim.115 Therefore, where an order of the House does not affect the rights of a person that the person would ordinarily exercise outside the House, but only rights that are exercisable in the House, that is an "internal proceeding" in which the courts would not interfere. Orders of the House affecting the liberty of the subject are by this definition not "internal proceedings" and any such action of the House would be examinable by the courts to determine whether the privileges of Parliament justify the action. The case of Landers v. Woodworth in 1878, fully discussed earlier,116 is an example of the court appearing to delve into an internal proceeding of a legislature. The courts, from the trial judge to the Supreme Court of Canada, dealt in detail with the events in the legislative Chamber leading

114

115 116

(Footnote 113, cont'd) In replying on the Smith case, the Cook Islands court put it this way: "While the Supreme Court was prepared to uphold the right of Parliament to deal with matters of privilege without scrutiny by the courts, and uphold also the principle of the supremacy of Parliament, it drew a distinction in the case of Parliament, having acted unlawfully and contrary to its Constitution. In that case Parliament had the power to deal with Smith in respect of his remarks as a matter of privilege, but none of the prescribed penalties for such a matter included the power to suspend salary. Parliament had accordingly purported to act beyond its legal powers, and the Supreme Court was prepared to accept jurisdiction to deal with the matter." By way of prologue, the defendants in the Cook Islands case who had brought an application to strike out Robati's action and had been turned down by the Court of Appeal then appealed to the Judicial Committee of the Privy Council but were equally turned down and the application was dismissed. (See 76, The Parliamentarian, July 1995, p. 193-4.) But see Barry L. Strayer, The Canadian Constitution and the Courts: the Function and Scope of Judicial Review, 3rd ed. (Toronto: Butterworths, 1988), p. 222, and Katherine Swinton, Challenging the Validity of an Act of Parliament: the Effect of Enrolment and Parliamentary Privilege" (1976), 14 (Osgoode Hall L.J.) 345. See Swinton also in distinguishing "parliamentary privilege" from "parliamentary sovereignty" at p. 388. See Appendix. See supra, Chapter 11.

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up to the order ordering Woodworth to withdraw, and questioned the legislative fording of contempt against Woodworth, a course of action that appeared contrary to the Bill of Rights, 1689, Article 9, which declares that proceedings in Parliament may not be questioned elsewhere, and Stockdale v. Hansard — "whatever is done within the walls of either assembly must pass without question in any place."117 However, in Landers v. Woodworth the court was not only involved in an internal proceeding but, more important, was also considering the liberty of the subject in an action for trespass for assault and was required to examine the legal defence advanced by the Nova Scotia Assembly. The court found that the Assembly did not have the power asserted (see Chapter 14). Meanwhile, in England in 1884 Bradlaugh v. Gossett118 declared in no uncertain terms that the courts have no jurisdiction over acts relating to the internal management of the House and provides a good example of an "internal proceeding." The plaintiff Member of the House of Commons complained of the actions of the House and particularly its order denying him the statutory right to take the oath. The rights of the Member in this case were exercisable only in the House, i.e. the right to sit.119 Accordingly, the court had no jurisdiction in the matter. Bradlaugh voted without having gone through the form of making and subscribing the oath required by statute and was charged under the same Act.129 Bradlaugh v. Gossett is the law of Canada.121 Some 50 years later, the courts in the U.K. also held that a magistrate was correct in refusing to permit the prosecution of certain Members of the House of Commons responsible for arranging for liquor to be served and sold within the precincts of the House without obtaining a licence from the authorities, because that was also an internal matter of the House of Commons.122 Finally, because it is for the courts to determine the existence, extent, and scope of parliamentary privilege, the courts need also determine whether or not the facts reveal that they are dealing with an "internal proceeding." 117 118 119

120 121

122

Lord Denman Ch.J., supra, note 57, 9 Ad. & EL at 114.2 at 114. 12 Q.B.D. 271. But see Katherine Swinton, Challenging the Validity of an Act of Parliament: the Effect of Enrolment and Parliamentary Privilege (1976), 14 Osgoode Hall L.J. 345 at 392. See AG. Can. v. Bradlaugh (1885), 14 Q.B.C. 667. Bourinot, 4th ed., p. 41. R. v. Graham-Campbell, ex parte Herbert, [1935] 1 K.B. 594.

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Who defends the privileges of the House of Commons or Senate before the courts in Canada In Commission royale d'Enquete v. Boulanger,123 the Court of Appeal of Quebec was not satisfied that a private Member had a right to defend the privileges of the Quebec legislature. However, Evans C.J.H.C. did not take exception to counsel for the petitioners in the action, all of whom were private Members, including the Leader of the Opposition, raising the issue of the privileges in the context of an action for a declaration that, inter alia, federal regulations did not prohibit Members from disclosing certain documents during a parliamentary debate.124

nFrom 1867 to the present Section 18 of the Constitution Act, 1867 also laid the foundation for the courts to be able to examine the law of parliamentary privilege as they would examine the public and general law of Canada. Pursuant to s. 18, the Parliament of Canada passed what is now s. 5 of the Parliament of Canada Act, which clearly shows that the law of parliamentary privilege is examinable by the courts: Such privilege, immunities and powers are part of the general and public law of Canada, and it is not necessary to plead the same, but the same shall, in all courts in Canada, and by and before all judges, be taken notice of judicially. The position in England in this regard is different because it is not settled in the U.K. that the courts may treat the law of privilege as part of the general and public law.125 In fact, the same Parliament of Canada Act appears to anticipate an inquiry concerning the privileges, immunities, and powers of either House by providing ins. 6 that in such an inquiry any copy of the Journals of either House printed or purported to be printed by order of either House shall be admitted as evidence without proof that copies were so printed.

The present Canadian position respecting jurisdiction The courts may examine the lex parliamenti as they would any other branch of the general and public law of Canada.126 The enactment of 123 124 125

126

[1962] Que. Q.B. 251 at 261. Supra, note 84. See also N.B. Broadcasting. May, 21st ed., p. 200-1. For example, see the position of the Attorney General of England in Pepper v. Hart regarding parliamentary privilege, [1993] 1 All E.R. 42 at 73. See also the present position of the U.K. courts respecting jurisdiction, also at p. 73-4. Parliament of Canada Act, R.S.C. (1985), c. P-1, s. 5.

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s. 5127 of the Parliament of Canada Act sets out that the courts of Canada have authority to examine into any claimed privilege of the House of Commons or of the Senate. The privileges, immunities, and powers referred to in s. 5 are those referred to ins. 4 of the same Act, which in turn refers to those held by the U.K. House of Commons in 1867, plus such privileges, immunities, and powers as are from time to time defined by Acts of Parliament of Canada, not exceeding those held and exercised by the U.K. House of Commons and by the Members thereof respectively. The only specific privilege enacted since 1867 is the power to administer the oath to witnesses.128 The House of Commons and Senate of Canada have the right to punish both breaches of their privileges and contempt. This necessarily carries with it the right to determine what their privileges are and what constitutes contempt. However, it is only for this purpose that one can say that the House of Commons and Senate are the sole judges of their privileges (see supra, note 88).

As Ellenborough Ch.J. said in Burdett v. Abbot, at p. 150: "A competence to commit for all matters and in all cases has never been asserted or pretended to on the part of either House of Parliament: the House of Commons does not pretend to a general criminal jurisdiction," and at p. 151: If it did not profess to commit for a contempt, but for some matter appearing on the return, which could by no reasonable intendment be considered as a contempt of the court committing, but a ground of commitment palpably and evidently arbitrary, unjust, and contrary to every principle of positive law, or natural justice; I say, that in the case of such a commitment, (if it ever should occur, but which I cannot possibly anticipate as ever likely to occur,) we must look at it and act upon it as justice may require from whatever court it may profess to have proceeded.

Thus, a finding of contempt that may not be supported in principle or historically, for example, for an act that has no bearing on a parliamentary proceeding, may prompt a court to hold that the legislative body had no jurisdiction to so find. As a result of judicial review in cases involving questions of the existence or extent of particular privileges, the privileges of the House of Commons and Senate are now as well recognized and established and as accurately defined as any of the rules and principles of common law, although their scope and extent has not been clear.129

127 128 129

Ibid. See supra, Chapter 11, The Right to Administer Oaths to Witnesses. See, for example, Roman Corp. v. Hudson's Bay Oil & Gas Co., Re Ouellet, Chapter 5, supra.

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The claim by the U.K. House of Commons that it may be the sole and exclusive judge of its own privilege has now been abandoned.133 In the light of s. 5 above, such a claim could not be substantiated in law in Canada yet was advanced by the respondent in Re Clark and AG. Canada. In addition to the recognition given by the U.K. House of Lords and House of Commons to the courts over publication of events that transpired in the House by tacit and deliberate acceptance,131 instances have been uncovered in Canada to show that the House of Commons, Senate, or a legislature before or since 1867 (other than in 1977 in the Holise of Commons)132 has never taken exception to judicial review involving privileges and proceedings of the House or legislature, as the case may be. In Landers v. Woodworth in 1878, the Supreme Court of Canada was noteworthy in delving into the events that transpired in the legislative Chamber and based its decision on a finding that those events did not constitute a breach of the privileges of the Nova Scotia legislature.133 As recently as 1973, the Supreme Court of Canada in Roman Corp. u. Hudson's Bay Oil & Gas Co. was dealing with an issue in which the lower courts had dealt with debates in the House of Commons and their publication, and not only whether the publication was privileged but also whether the words spoken in Parliament were protected. No one raised

130 131

132 133

H.C. 34, December 1, 1967, p. 90 (U.K.); see supra this chapter concerning Pepper u. Hart. The House of Lords took no action when Lord Abingdon was found guilty of criminal libel in 1795 when he re-published in several newspapers at his own expense a speech he had made in the House of Lords; the House of Commons in 1813 turned down a request by Creevey to intervene when he was found guilty of libel also for publishing remarks that he had made in the Commons. Similarly, when Mr. Lechmere Charlton was committed by the court for contempt of court in 1837, the House of Commons committee on privilege reported that his claim to be discharged from prison should not be admitted (U.K. Journals (1837), p. 56-7). Some years before that case occurred, Lord Chancellor Brougham declared that committal by order of the court was "no violation of the privileges of Parliament after the Members of Parliament have violated the rights and privileges of this court, which is of as high a dominion and as undisputed ajurisdiction as the High Court of Parliament itself." In 1874 Mr. Whalley, Member for Peterborough, was committed by Sir Alexander Cockburn, Lord Chief Justice of the Queen's Bench, for contempt of court, and fined £250. His Lordship communicated the fact to the Speaker, reciting the circumstances. This letter was read to the House on the first meeting of Parliament in that year and, the explanation being accepted as satisfactory, the House declined to interfere. It seems pretty clear from historical records that Parliament in recent times has been most willing to accept the decision of the courts in matters of privilege: see (1927), 4 Can. Bar Rev. 299. See also E. Campbell, Parliamentary Privilege in Australia (Melbourne: Melbourne University Press, 1966), p. 66 (footnote 36). See supra, text concerning Re Clark and AG. Canada. (1878), 2 S.C.R. 158 at 197; see also Payson v. Hubert (1904), 34 S.C.R. 400, where the Supreme Court of Canada dealt with events that occurred on the precincts and that had been ordered by the Speaker while that same legislature was adjourned; a perfectly legitimate inquiry for the courts because the civil and criminal law applies everywhere in Canada save when they form part of debates and proceedings of Parliament and the legislatures.

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this in the House of Commons, although the Court confirmed the privilege.134 Also, the Court of Appeal of Ontario in 1885 was of the view that Ashby v. White and Stockdale u. Hansard135 had brought the issue of parliamentary privilege "within the judgment of the legal courts of the country,"136 and the Chief Justice of the High Court of Ontario in 1977137 expressly said that the courts have jurisdiction to adjudicate on matters involving the privileges of Members of Parliament. Accordingly, the courts of Canada have jurisdiction to determine in any case coming before them whether any claimed breach of privilege in law involves a known privilege of Parliament.138 The courts, however, accept that they do not have any jurisdiction over the "internal proceedings" of the House of Commons or of the Senate or of a legislature. Apart from what takes place officially in the House and in committee, this also includes areas of administrative concern, such as the sale of liquor on the premises and the rights of employees in their relations with the House of Commons or Senate — that is to say, when, as in R. v. Graham-Campbell, the House of Commons was acting collectively in a matter that fell within the area of the internal affairs of the House.139 It includes whether the proper procedure was followed when an Act was passed.149 The exception is where the procedure to be followed is entrenched in the Constitution.141 When proceedings of the House affect the rights of persons that are exercisable outside the House, the courts have jurisdiction as they would in any case where those rights are affected. If a proceeding of the House affects the rights of persons exercisable outside the House, the person who published the proceedings or the servant who executed the order (for example) will be within the jurisdiction of the courts. In such a case, a court may inquire whether the act complained of is duly covered by the order, and whether the privilege claimed by the House does, as pleaded, justify the act of the person who executed the order.

134 135 136 137 138

139 140 141

See also Chapter 12, supra. See supra, notes 35 and 56 respectively. R. v. Bunting, supra. Supra, Re Clark and AG. Canada. The U.K. courts have found that the U.K. House of Commons could not claim the privilege of imposing a fine for contempt. Scarman J.'s remarks in Stourton v. Stourton are equally applicable to Canada (see supra). [1935] 1 KB. 594 at 602. Note however, that employee-employer relations have to a great extent been legislated and thus subject to the Charter (see supra, note 108). See Chapter 11, notes 36-37. See supra regarding constitutional manner and form provisions and Chapter 11, at notes 36 to 42.

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While it would clearly be otherwise in the case of a public bill,142 the courts have asserted the right to interfere by injunction to prevent an application to Parliament in respect of a private bill,'" although the case has yet to arise in the U.K., where the courts have actually permitted such an injunction; l44 the one instance in which it was granted in Canada145 will unlikely be followed in the future.'" Furthermore, once a matter is before either House of Parliament, to question it or impede it in another jurisdiction would be contrary to Article 9 of the Bill of Rights, 1689 and could amount to contempt. Any exceptions would have to be specifically provided for by statute.147 Bourinot, in citing Anson, summed up the issue of jurisdiction this way: It seems now to be clearly settled that the courts will not be deterred from upholding private rights by the fact that parliamentary privilege is involved in their maintenance and that, except as regards the internal regulation of its proceedings by the House, courts of law will not hesitate to enquire into alleged privilege, as they would into local custom, and determine its extent and application.'" That summation remains equally valid today. The only change will entail the penal power, or penal jurisdiction, of the Houses of Parliament or legislative assemblies. This will be dealt with in Chapter 14.

142 143 144 146 146 147

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(1955), 33 C.B.R. 215 at 216, Prof. Bora Laskin as he then was; N.W.T. Public Service Assn. v. Comm,: of NWT (1979), 107 D.L.R. (3d) 458 (N.WT. CA.). Steele v. North Metro. Ry. Co. (1867), 2 Ch. App. 237. Ibid., at 331; May, 19th ed., p. 860. Berthiaume v. Du Tremblay, [1955] Que. PR. 328. Rail & Water Terminal of Montreal Ltd. v. Compagnie de Gestion de Malone Inc., [1976] C.S. 102. In respect of private bills, an exception is provided by s. 56 of the Supreme Court Act, R.S.C. (1985), c. S-26; in respect of other matters, see s. 55 of the same Act and the most recent instance of its use, Reference Re Legislative Authority of Parliament to Alter or Replace the Senate (1979), 102 D.L.R. (3d) 1. The Supreme Court of Canada recently held in Reference Re Amendment of the Constitution of Canada (Nos. 1, 2 and 3) (1981), 125 D.L.R. (3d) 1 at 30 (S.C.C.) that "[c]ourts come into the picture when legislation is enacted and not before." 4th ed., p. 41.

CHAPTER 14

The Canadian Charter of Rights and Freedoms and Parliamentary Privilege

Introduction Prior to the adoption of the Canadian Charter of Rights and Freedoms' (Charter) in 1982, it was clearly settled that questions of parliamentary privilege would not deter the courts from upholding private rights. The Charter 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. The Charter envisages protecting the citizens from arbitrary actions of the government. Parliamentary privilege on the other hand exists to allow legislative bodies and their members to carry out their constitutional functions while protected from the Crown or the executive branch of government, from the courts in respect of their internal proceedings, and from the citizens, particularly for what is said in the legislative body. The adoption of the Charter remains the subject of debate. Its supporters have argued that the Charter means a net gain in popular power. Shortly before the Charter's enactment, a government pamphlet said that the Constitution is "one of the most valuable possessions the people of a democratic country can have."2 It went on to affirm that "Constitutional entrenchment of a Charter of Rights and Freedoms limits the power of both provincial and federal governments in favour of the rights of individual citizens. It gives people the power to appeal to the courts if they feel their rights have been infringed or denied. The Charter

2

Constitution Act, 1982, enacted as Schedule B to the Canada Act, 1982 (U.K.) (1982), c. 11. The Constitution and You (Ottawa: Government of Canada), p. 6.

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does not transfer any powers or authority from the provincial governments to the federal government — rather it transfers power to all Canadians."3 Another supporter invoked democracy as one strategy tried to tar the opposing premiers with preferring "to trust politicians rather than impartial and non-partisan courts in the protection of the basic rights of citizens in a democratic society. It is evident that the Canadian people prefer their rights protected by judges rather than politicians." The Supreme Court of Canada has pointed out its duty to "uphold the Constitution" and to be its "protector and preservor" and "guarantor"5 because the "judiciary is the guardian of the Constitution."6 Opponents, however, have spoken differently. One said that the "popularity of the Charter was based primarily on a belief that one basic policy would flow automatically from the Charter — the better protection of fundamental rights and freedoms" and that this proceeded from "a blind, and most anachronistic view of the judicial process [which denied] the policy-making role of the judiciary."7 In a similar vein, another commentator wrote of a Canadian "innocence about judicial power and a very unrealistic image of the judicial role."8 Indeed conventional wisdom in legal circles for the past half-century taught that courts are not merely interpreters of the law.8 Examples of this attitude existed even prior to the last half-century. In 1899 Lord Haldane said that "the function of an imperial judge of the first order 'sitting in the supreme tribunal of the Empire is to do more than decide what abstract and familiar legal conceptions should be applied to particular cases' but that it was 'his function to be a statesman as well as ajurist' to lay 'down the new law...necessarily his own'."16 Chief Justice (of Canada) Duff in turn said in 1925 "occasions must arise when something more is called into play than learning and mastery of legal

3 4 5 6 7 8 9

10

Ibid, p. 12, 13. David Milne, The New Canadian Constitution (Toronto: James Lorimer 1982), p. 222. Reference Re Language Rights under the Manitoba Act, 1870 (No. 1) (1985) 19 D.L.R. 4th 1 at 25, 26. Hunter & Southam, [1984] I S.C.R. 145 at 156. Peter Russell, The Political Purposes of the Canadian Charter of Rights and Freedoms (1983), 61 CBR 30 at 42, 43. Donald Smiley, The Canadian Charter of Rights and Freedoms (Toronto: Ontario Economic Council, 1981), p. 55. Edward McWhinney, The Canadian Charter of Rights and Freedoms: The Lessons of Comparative Jurisprudence (1983), 61 C.B.R. 55 at 67. Judicial Review VII (1899), p. 279-80.

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principle...and there are times unquestionably when the chief desideratum is something akin to statesmanship."11 The purpose of the Charter may therefore be clear to constitutionalists: it is to diminish the powers of the legislative and executive branches of government, including those powers that are conferred by the Constitution.12 It may be clear to the Supreme Court of Canada: "to restrain government action and to protect the individual."13 With respect to the "old dualism," i.e. both the courts and the Houses of Parliament each claiming jurisdiction over parliamentary privilege,14 the Charter has added a quiver to the judicial arrow.

Relevant provisions of the Charter The Canadian Charter of Rights and Freedoms provides for fundamental freedoms, such as freedom of the press (s. 2); democratic rights, including the right of citizens of Canada to vote (s. 3); legal rights, including the right to life, liberty, and security of the person (s. 2); the right, on arrest or detention, to be informed promptly of the reasons therefor, to have the validity of the detention determined by way of habeas corpus, and to be released if the detention is not lawful (s. 10); if charged with an offence, the right, amongst others, to be informed without unreasonable delay of the specific offence and to be tried by an independent and impartial tribunal (s. 11); and equality rights (s. 15). The Charter guarantees those rights and freedoms, subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society (s. 1). The Charter applies to the Parliament and Government of Canada in respect of all matters within the authority of Parliament and to the legislature and government of each province in respect of all matters within the authority of the legislature of each province (s. 32). Furthermore, the Charter is part of the Constitution of Canada, the Constitution is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is of no force or effect (s. 52(1)).

11 12 13 14

Annual Dinner of the Ontario Bar Association, May 22,1925. Taken from Problems of Canadian Sovereignty, Maurice 011ivier (Toronto: Canada Law Book, 1945), p. 247. Peter Hogg, Constitutional Law of Canada 1992, 2nd p. 34 — 8.2. RWDSU v. Dolphim Delivery Ltd., [1986] 2 S.C.R. 573 at 593. A few years earlier, touching on the subject of parliamentary privilege and the court, then Professor Bora Laskin wrote prophetically that "(T)he probable end of the matter would be an assertion of the respective independence of courts and legislatures (or legislative assemblies) when respectively called upon to exercise their functions. Law at this point dissolves into politics." (1955) 33 C.B.R. 220. See also Bernhardt, p. 198-202; Munn, Chapter 3.

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The Charter provides for its enforcement by enabling anyone whose rights or freedoms so guaranteed by the Charter have been infringed or denied to apply to a court to obtain a remedy (s. 24(1)).

Parliamentary Privilege The Houses of Parliament, each of the ten provincial houses of assembly and the two territorial assemblies and their members have also had, since their creation, certain immunities, or "parliamentary privileges," that enable them to carry out their constitutional functions. These privileges are also legal rights. Privilege in the legal sense is an exemption from some duty, burden, attendance, or liability to which others are subject. Thus parliamentary privilege, though part of the general and public law of Canada,15 is an exemption from the ordinary law.16 However, like any other "law," parliamentary privileges are now subject to s. 52(1)17 of the Charter unless they do not come within the application section, s. 32, or unless they also form part of the Constitution, in which case they could not be abrogated by another part of the Constitution, the Charter. It is not incorrect to say that until the advent of the Charter, the deference that courts extended to most of the non-legislative activities of a House of Parliament or legislative assembly was in the name of parliamentary privilege. In 1993, the Supreme Court of Canada in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), hereinafter N.B. Broadcasting,18 addressed the issue of whether and how the Charter applies to the provincial legislative assemblies and their proceedings. Although the case concerned the right of the Nova Scotia House of Assembly "to exclude strangers" in context of the TV media, the five separate reasons delivered by the court impact directly on the powers, privileges, and immunities of the House of Commons and the Senate.

N.B. Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly) The facts are straightforward. The N.B. Broadcasting Co. applied to the Nova Scotia Supreme Court, Trial Division, for an order allowing it "to film the proceedings of the House of Assembly with its own cameras." It claimed it could film the 15 16 17

18

Parliament of Canada Act, R. S. C. (1985), CI-1, s. 5. See Chapter 3. 52(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. [1993) 1 S.C.R. 319.

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proceedings from the public gallery with unobtrusive, modern, silent, hand-held cameras requiring no special lighting or electrical equipment. The Speaker in his evidence said the proposal would interfere with the decorum and orderly proceedings of the House. Apart from controlling decorum, the House would have no control over the production and use of the film. At the time of the court application, the media had access to the public gallery to witness proceedings, and to Hansard. The House of Assembly, however, in the exercise of its privileges, prohibited the use of television cameras except on special occasions.

Lower Court decisions The trial judge granted the application. The Appeal Division confirmed the Broadcasting Co.'s right of access, under s. 2(b) of the Charter, to televise the proceedings with its own unobtrusive cameras. It left open, however, the question as to whether any limits could be placed on this right of access. The Supreme Court of Canada allowed the Speaker's appeal and set aside the decisions of the lower courts.

Supreme Court of Canada decision The court delivered five separate opinions in its 7-1 decision allowing the appeal. McLachlin J. delivered the majority opinion, with L'Heureux-Dube, Gonthier, and Iacobucci J.J. concurring. La Forest J. agreed and added reasons of his own. Lamer C.J. and Sopinka J. gave separate reasons. Cory J. gave dissenting reasons. The majority held that the act of the House of assembly in excluding television cameras from the public gallery was an exercise of a constitutionally inherent privilege to exclude strangers from the House and its precincts. The basis of this inherent privilege is the preamble to the Constitution Act, 1867 in context of historical tradition and the pragmatic principle of necessity: the legislature must be presumed to possess such constitutional powers as are necessary for its proper functioning. The majority affirmed the existence of two categories of privilege: (1) constitutionally inherent privilege; (2) privilege that is not constitutionally inherent. Both the Charter and the first category of privilege are part of the Constitution. The first category of privilege is therefore not subject to judicial review under the Charter, because one part of the Constitution may not abrogate another part of the Constitution. Therefore, once it is established that the privilege is constitutionally inherent, as in this case, the exercise of that privilege is not subject to judicial scrutiny. If, however, it is not so established, the privilege is subject to such scrutiny. The majority specifically rejected Lamer C.J.'s view that a textual and purposive interpretation of s. 32 of the Constitution Act, 1982 led to the conclusion that the Charter did not apply to a legislative assembly.

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La Forest J. agreed with the majority, adding his own reasons, which, he said, are ultimately perhaps more matters of perspective than substance (but see infra, p. 317). Lamer C.J. said that because of the history of judicial deference to legislative assemblies, a textual and purposive analysis of s. 32 of the Charter shows that the Charter did not apply to a legislative assembly alone, and accordingly the exercise of their inherent privileges by members of the assembly is not subject to Charter review. He therefore did not address the issue of the constitutional status of privileges, notwithstanding his comprehensive review of the history of parliamentary privilege. To put it another way, both Lamer C.J. and McLachlin J. for the majority agreed that some parliamentary privileges, such as the right to exclude strangers, are inherent to the legislative assembly. However, they disagreed on how the Charter affects those inherent privileges. Lamer C.J. held that these inherent privileges are not subject to Charter review because the legislative assembly does not fit within the terms of the application section, s. 32 in this context. On the other hand, McLachlin J. for the majority found that the Charter may apply to some activities of the House of Assembly. While the courts have deferred to the privileges of legislative assemblies, McLachlin J., however, said those privileges that are inherent are not subject to Charter review, because they also form part of the Constitution, and one part of the Constitution may not abrogate another. Sopinka J. concluded that no privilege had constitutional status. He affirmed, contrary to Lamer C.J., but in agreement with the majority, that s. 32 does apply to a legislative assembly. The words "within the authority of the legislature" include the exercise of privilege, whether by legislation, rule, or practices of the legislative assembly. While finding that the Charter applied, he said the breach was saved by s. 1. He disagreed with the majority that the preamble to the Constitution Act, 1867 gives certain privileges constitutional status, because this would mean entrenchment of such privileges, and entrenchment would necessitate a constitutional amendment under s. 43 or s. 38 of the Constitution Act, 1982 in order to make any change to such entrenched privilege. Cory J., in dissent, agreed with the majority that s. 32 of the Charter applies to a legislative assembly. He affirmed, however, that it should apply with a large and liberal interpretation based on the expectations of the ordinary and reasonable citizen, to whom the legislative assembly is the essential element of the "legislature" and a fundamental and integral part of the "government" of a province. Privileges do not have constitutional status exempting their exercise from Charter review. The exercise here by the House of Assembly was contrary to the Charter.

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Analysis of majority judgment Reasoning for the majority, McLachlin J. rejected the argument put forward by Lamer C.J. that by virtue of the language of the application section, s. 32,19 the Charter can never apply to the actions of the legislative assembly. Whiles. 32 refers to "Parliament" and the "legislature" of each province, in McLachlin J.'s opinion the Charter as a whole did not support a narrow reading of s. 32 such that these terms meant the legislative bodies and the Queen acting together. Nor was McLachlin J. persuaded by Lamer C.J.'s argument that a purposive approach required curial deference to everything a legislative body did. Rather, she noted that such deference is attached only to their privileges. The legislative assembly could be a government actor subject to the Charter in matters unrelated to privilege20 and fall within the rationale for regarding such bodies as government actors, because legislation is not the only way in which a government actor may infringe a Charter right or freedom. Absent specific Charter language to the contrary, however, the long history of curial deference to the independence of the legislative body, and to the rights necessary to the functioning of that body, cannot be lightly set aside, even conceding that our notions of what is permitted to government actors have been significantly altered by the enactment and entrenchment of the Charter (McLachlin J. at p. 372).

Accordingly, McLachlin J. rejected the argument that the Charter can never apply to any of the actions of a legislative assembly. The majority then considered whether the privilege in issue, to expel strangers from the legislative assembly, was a constitutional power. If the privilege is constitutionally inherent, even if the Charter applied to the body, it could not be abrogated by the Charter. McLachlin J. said the House of Assembly has the constitutional power to exclude strangers from its 19

20

S. 32 (1). This Charter applies: (a) to the Parliament and Government of Canada in respect of all matters within the authority of Parliament, including all matters relating to the Yukon Territory and Northwest Territories; and (b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province. However, s. 52(1) of the Charter is also relevant: 52.(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. The law of Parliament, including parliamentary privilege, may be "any law that is inconsistent with the provisions of the Constitution." Members of the House of Parliament, save for the members of Cabinet and parliamentary secretaries who are remunerated in respect of the functions they perform for the government, are subject to severe penalties if they are not contractually independent of the government in their financial affairs (see Parliament of Canada Act, R.S.C. 1985, c. P-1, s. 32 and 41).

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chamber on the basis of (a) the preamble to the Constitution, (b) historical tradition, and (c) the pragmatic principle that the assembly must be presumed to possess any constitutional powers as are necessary for its proper functioning. (a) The preamble to the Constitution Act, 1867, which proclaims an intention to establish "a Constitution similar in principle to that of the United Kingdom," constitutionally guarantees the continuance of parliamentary governance and, given Canadian federalism, this guarantee extends to the provincial legislatures in the same manner as to the federal Parliament. McLachlin J. said the Constitution of the United Kingdom recognized certain privileges in the British Parliament, and since the Canadian legislative bodies were modelled on the parliamentary system of the United Kingdom, they possess similar, although not necessarily identical, powers. Given the clear and stated intention of the founders of our country that Canada retain the fundamental constitutional tenets upon which British parliamentary democracy rested, it seems indisputable that the inherent privileges of Canada's legislative bodies, historically recognized as necessary to their proper functioning, fall within the group of principles made constitutional by virtue of the preamble. She went on to say that this is not a case of importing an unexpressed concept into our constitutional regime, but rather of recognizing a legal power fundamental to the constitutional regime that Canada has adopted. The definition of "Constitution of Canada" ins. 52(2) of the Constitution Act, 1982 is not clearly meant to be exhaustive and the interpretation of that section should not be restricted in such a way as to preclude giving effect to the intention behind the preamble to the Constitution Act, 1867, thereby denying recognition to the minimal, but long legally recognized and essential, inherent privileges of Canadian legislative bodies. (b) McLachlin J. then said it follows that in determining the constitutional powers of our legislative assemblies we should look at the powers that have been historically ascribed to the U.K. Houses of Parliament. She noted that: It has long been accepted that in order to perform their functions, legislative bodies require certain privileges relating to the conduct of their business...and that these privileges must be held absolutely and constitutionally if they are to be effective; the legislative branch of our government must enjoy a certain autonomy which even the Crown and the courts cannot touch (p. 379). The majority also noted that the origins of parliamentary privilege of the Commons at Westminster sprang originally from the authority of Parliament as a court, and that over the centuries the Commons won for

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itself the right to control its own affairs, independent of the Crown and of the courts. However, McLachlin J. noted further that: "the privileges attaching to colonial legislatures arose from common law. Modelled on the British Parliament, they were deemed to possess such powers and authority as are necessarily incidental to their proper functioning". She went on to say: "These privileges were governed by the principle of necessity rather than by historical incident, and thus may not exactly replicate the powers and privileges found in the United Kingdom" (p. 379). She particularly pointed out that in the U.K. "the privileges of Parliament are rights absolutely necessary for the due execution of its powers...." It will be seen that "necessary" is not defined as inclusively for Canada as in the U.K.21 After noting the basic character of privilege and referring to Canadian and English text, she said: "that Canadian legislative bodies properly claim as inherent privileges those rights which are necessary to their capacity to function as legislative bodies. There is no dispute in the case law that necessity is the test" (p. 381). McLachlin J. noted at p. 382 that it is for the courts to determine whether necessity sufficient to support a privilege is made out, quoting Lord Denman Ch.J. in Stockdale u. Hansard (1839), 9 Ad. & El. 1 (Q.B.), 112 E.R. 1112, who stated at p. 1169 E.R.: "If the necessity can be made out, no more need be said: it is the foundation of every privilege of Parliament, and justifies all that it requires." She goes on to say that Denman Ch.J. noted, however, that it is up to the courts to determine whether necessity supports the privilege claimed: if it does, and only if it does, the courts will not inquire into its exercise (p. 382-3). McLachlin J. then set out the test to be applied: The test of necessity is not applied as a standard for judging the context of a claimed privilege, but for the purpose of determining the necessary sphere of exclusive or absolute "parliamentary" or "legislative" jurisdiction. If a matter falls within this necessary sphere of matters without which the dignity and efficiency of the House cannot be upheld, courts will not inquire into questions concerning such privilege. All such questions will instead fall to the exclusive jurisdiction of the legislative body (p. 383).

McLachlin J. concluded: "it seems clear that, from an historical perspective, Canadian legislative bodies possess such inherent privileges as may be necessary to their proper functioning. These privileges are part of the fundamental law of our land, and hence are constitutional. The courts may determine if the privilege claimed is necessary to the capacity 21

Infra, this chapter.

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of the legislature to function, but have no power to review the rightness or wrongness of a particular decision made pursuant to the privilege" (p. 384-5). (c) McLachlin J. then invoked the "pragmatic approach: necessity," reasoning that since Canadian legislative bodies possess such historically recognized constitutional privileges as may be necessary to their efficient functioning, this implies that from a practical point of view, legislative bodies must possess certain inherent powers in order to properly discharge their functions. She goes on to state that our legislative bodies cannot function properly, clothed only with those powers expressly conferred by our written constitutional documents. As an example, McLachlin notes the importance of the unwritten constitutional right to speak freely in the House without fear of civil reprisal.

The particular privilege in issue — the right to exclude strangers The majority noted that of the named privileges22 advanced in support of the appeal, the one most directly in issue is the right to exclude strangers. McLachlin J. agreed with Lamer C.J. when he said at p. 364: Given the long-standing acceptance of the power to exclude strangers and to control the internal proceedings of the House as valid categories of privilege founded on necessity, in this country as well as in the United Kingdom... [the contrary] argument would be difficult to make. At p. 384 she goes on to say: The fact that this privilege has been upheld for many centuries, abroad and in Canada, is some evidence that it is generally regarded as essential to the proper functioning of a legislature patterned on the British model. McLachlin J. said, referring to the U.K., that "one of those privileges, held absolutely and deemed to be constitutional, was the power to exclude strangers from the proceedings of the House" (p. 379). The majority asked anew in 1993 about the right to exclude strangers and affirmed that it was just as necessary for the functioning of our modern democractic legislative bodies. McLachlin J. reasoned that since strangers can in a variety of ways interfere with the discharge of their business, it follows that the assembly must have the right, if it is to 22

See infra, this chapter, under Other Named Privileges or Powers.

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function effectively, to exclude strangers. Furthermore, the assembly needs to monitor its own exercise of that power, because a system of court review would bring its own problems as the assembly would be caught up in appeals about what is disruptive and not disruptive, which might impair its proper functioning. To do so would also represent a reallocation of constitutional powers between the legislative branch of government and the courts. The majority concluded that the Legislative Assembly of Nova Scotia possesses an inherent constitutional right to exclude strangers from its Chambers where it concludes their presence is disruptive of the "assembly's business (p. 390). In effect, the privilege relates to the exclusion of strangers from the precincts, which include the galleries. The U.K. House of Commons has always claimed and enjoyed the right to exclude strangers, and to debate behind closed doors.23 Until 1845, the U.K. Commons, by a sessional order, maintained the exclusion of strangers from every part of the House (May, p. 171). More recently, however, the issue of strangers in the U.K. is considered in the context of contempt: any disorderly or disrespectful conduct, both in and out of the Chamber, by strangers (ibid., p. 115-6). While the majority in N.B. Broadcasting noted that the English tradition would support the right of the House to debate in private (p. 388), the unlikely occurrence of all sessions being held in private (in camera) may lead to freedom of expression in the Charter being interpreted by the courts, as upholders of the Constitution, as a breach of the right to know.24 In the final analysis, the majority agreed that the history of judicial deference and the autonomy each branch of government need enjoy in the manner it conducts its affairs should continue: the court should not intervene to review the rightness or wrongness of a particular decision made pursuant to a privilege, in this case the privilege to exclude strangers from the precincts. McLachlin J. affirmed that the legislative body alone determines whether an act is disruptive or not. To put it another way, the House has the right to determine the regularity of its own affairs. From a practical point of view, whether the privilege in question is defined to exclude strangers or to exclude strangers who disrupt, since the 23 24

May, 21st ed., p. 85. See the U.S. position set out in Tribe, L.H., American Constitutional Law, 2nd ed. (New York: Kumla Press, 1988), p. 813-4, 945-7, 955-70.

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courts do not examine how a privilege, once it is defined, is exercised, would the courts in either case examine how the privilege was exercised? The majority noted that the Supreme Court of Canada in Payson v. Hubert25 held earlier that the legislative assembly is not open to the public as a right — i.e. access to the Chamber of the Nova Scotia House of Assembly was strictly a matter of privilege, a licence that could be withdrawn at any time as a matter of decorum. Payson v. Hubert concerned the right of the Speaker to direct the chief messenger to remove from the precincts a person who was obstructing at a time when the assembly was not in session. In the case of strangers, such as in Payson u. Hubert, where it involved a claim of assault, the courts would not be dealing with an "internal proceeding" and thus would not defer to the assembly or House if rights exercisable outside the assembly or House are in issue (see Chapter 13). However, the N.B. Broadcasting case may have been treated also as an "internal matter," i.e. inherent or not, it did not involve a right exercisable outside the assembly, and thus of no concern to the courts.

Other named privileges or powers Today, do the other powers or privileges of a legislative assembly or House of Parliament referred to by the court meet McLachlin J.'s test of being historically recognized and necessary? The court noted that: Among the specific privileges which arose in the United Kingdom are the following: (a)freedom of speech, including immunity from civil proceedings with respect to any matter arising from the carrying out of the duties of a member of the House; (b)exclusive control over the House's own proceedings; (c)ejection of strangers from the House and its precincts and (d)control of publication of debates and proceedings in the House.26 McLachlin J. said unwritten constitutional privileges inherent to our legislative bodies may be justified on the ground of necessity, and the history of curial deference precludes a Charter review27, thus the importance of determining which of the traditional powers and privileges are inherent. 25 26

27

(1904), 34 S.C.R. 400. These were the privileges noted by the trial judge as having been advanced by counsel for the N.S. Assembly in support of its position. (Lamer C.J. at p. 336 and McLachlin J. at p. 385.) Supra, note 18, at p. 372, 385.

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In the majority judgment, McLachlin J. states that the Constitution also includes such privileges as have been historically recognized as necessary to the proper functioning of our legislative bodies, and because of Canada's short history, she looks principally to the United Kingdom for convincing justification for each of these privileges. There are certain very moderate privileges that were necessary for the maintenance of order and discipline during the performance of their duties and thus made constitutional by virtue of this preamble. She goes on to note that "the authorities indicate that the legal status of inherent privileges has never been in doubt."28 She went on to note that Erskine May29 provides convincing justification for each of these privileges.

(a) Freedom of Speech Without entering here upon an analysis of its meaning and scope (see Chapter 4), it is clear that freedom of speech is a constitutionally inherent privilege, being one of those powers or privileges that are intrinsically necessary for the legislators to perform their legislative work. It was directly inherited from England in 1758,39 and with it Article 9 of the Bill of Rights, 1689, which is part of the English Constitution.31 As to its constitutionality in Canada, McLachlin laid part of the issue of parliamentary freedom of speech to rest when she held: "The importance of the unwritten constitutional right, for example, to speak freely in the House without fear of civil reprisal is clear."32 It may be pointed out that in regard to this privilege, a Member's privilege of freedom of speech concerns speaking in the House or Assembly or in a committee. In addition, the Member is also protected when carrying out those duties, as a Member of the House, that have a nexus with a parliamentary proceeding (see Chapters 3 and 5). However, when the Member performs such duties to his constituents and his party the fulfilment of which do not involve a parliamentary proceeding, the Member is not so protected.

28 29 30 31

32

Ibid., p. 378 May, Sir Erskine, Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 21st ed. Edited by C.J. Boulton (London: Butterworths 1989). See Documents of the Canadian Constitution 1759-1915 (Toronto: Oxford University Press, 1918), ed. W.P.M. Kennedy (Documents), p. 297. Article 9 — 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. Supra, note 18 at 385. It is argued elsewhere that members of provincial assemblies as well as Members of Parliament may also speak freely without fear of criminal reprisal when engaged in a parliamentary proceeding (see Chapter 3).

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(b) Control over internal proceedings The exercise of the control by a House or legislative assembly over its own proceedings and its own affairs is a basic rule of an elected assembly. With respect to the privilege of exclusive control over the House's own proceedings, the words of Article 9 of the Bill of Rights,1689 appear to spell out that the internal proceedings of the English Commons were sacrosanct so that no other body, including the courts, should entertain examining what went on in the Commons with a view to second-guessing the House. However, in a line of cases, starting with Stockdale v. Hansard, the courts adopted the view that they had a judicial right to come to an independent determination as to what is privilege, including whether a particular claim of privilege fell within the category of "internal proceedings."33 While neither Lamer C.J. nor McLachlin J. for the majority (in N.B. Broadcasting) were prepared to go so far as to incorporate Article 9 of the English Bill of Rights,1689 into Canada's Constitution on the basis of its preamble because the wording of the preamble cannot be taken to refer to so specific an article of the United Kingdom Constitution, yet "this is not to say that the principles underlying Article 9 do not form part of our law and inform our understanding of the appropriate relationship between the courts and legislative bodies in Canada."34 McLachlin J. points out that this right to be the sole judge of the lawfulness of its proceedings is "fully established" in the United Kingdom (p. 386). That control over its proceedings was part of the common law inherent to the legislative assemblies in Canada may be demonstrated by the opinion of the law officers of the Crown in 1815. It was, they said, one of the examples of the privileges "directly and indispensably necessary to enable them (legislative assemblies) to perform the functions with which they are invested, and therefore may be fairly said to be incidental to their constitution". This was what the law officers of the Crown spelled out in their opinion concerning the privileges of the House of Assembly of Canada, viz., "the right of regulating and ordering their own proceedings in their Assembly consistently with the Statute must necessarily be 33 34

See Chapter 11. Ibid., p. 374 McLachlin J. See also the court's remarks in Reference Re Amendment to the Constitution of Canada (Nos. 1,2 and 3) (1981), 125 D.L.R (3d) 1 at 30. The Bill of Rights, 1689 with its guarantees in Article 9 was acquired when the common law was received into Canada. See Strayer, Barry L., The Canadian Constitution and the Courts, the Function and Scope of Judicial Review, 3rd ed. (Toronto: Butterworths, 1988), p. 224.

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incident to them."35 McLachlin J. went on to quote Bradlaugh v. Gossett with approval that "in settling or departing from its own procedure the House can practically change or practically supersede the law."36 Lamer C.J. said "It is through the exercise of the privileges inherent in all legislative bodies that the provincial Houses of Assembly are able to control their own proceedings and thereby maintain the independence of the legislative process."37 McLachlin J. for the majority agreed,38 arguably accepting that it was inherently necessary for a legislative body to control its proceedings in order to perform its constitutional functions. It seems that McLachlin J. intended that legislative bodies have the inherent power to be master of their own procedure and that courts should be reluctant to interfere in what has been defined as internal proceedings: In my view, a system of court review, quite apart from the constitutional question of what right the courts have to interfere in the internal process of another branch of government, would bring its own problems. The ruling of the Assembly would not be final. The Assembly would find itself caught up in legal proceedings and appeals about what is disruptive and not disruptive. This in itself might impair the proper functioning of the chamber.39

Finally, in his separate but supportive reasons for judgment, La Forest J. was particular in saying at p. 367: As I see it, when the British government granted a legislative assembly to a colony, the grant carried with it as an adjunct the power necessary for that body to carry out its functions, in particular the power to regulate its internal processes in the traditional manner developed over the years (emphasis added).

n Control of Publications of Debates and Proceedings With regard to control of publication of debates and proceedings of Parliament, McLachlin J. noted that this question in the United Kingdom has always been closely bound up with that of the admission of

36 37 38 39

See Documents of the Canadian Constitution 1759-1915 (Toronto: Oxford University Press, 1918), ed. W.P.M. Kennedy. Supra, note 30, p. 297. Supra, note 18, p. 386 Supra, note 18, p. 354 Ibid., p. 387 Ibid., p. 387-8. This statement is particularly relevant in regard to the right to discipline Members. This and other relevant matters are explored in Chapter 11.

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strangers.4° Since Parliament has the right to exclude strangers, it follows that it has the right to control and to prohibit the publications of its debates or proceedings.41 This right, it is suggested, is inherent to a legislative assembly or House of Parliament, since until 1971 it was technically forbidden in the United Kingdom to publish what had transpired in the English Commons (see Chapter 3). It is interesting to note that on a recent occasion, a committee of the House of Commons of Canada saw fit not to print, i.e. to expunge, the evidence of a witness with which the majority of the committee took offence. The Speaker subsequently ruled, on a question of privilege raised as a consequence, that this did not constitute a breach of privilege for the reason that the committee had the authority not to print.42 This also provoked public or at least journalistic outcry, because what should properly be characterized as a matter of freedom of speech was being curtailed.43 Notably, the same committee a few days later allowed the same evidence to be read in to the record by a subsequent witness with nary a murmur." Both the Chief Justice (p. 364) and McLachlin J. (p. 387) for the majority in effect put the stamp of constitutionality on this privilege that is closely connected to the right to exclude strangers: "Given the long-standing acceptance of the power to exclude strangers and to control the internal proceedings of the House as valid categories of privilege founded on necessity, in this country as well as in the United Kingdom... (see, for example, Payson u. Hubert (1904), 34 S.C.R. 400) [the contrary] argument would be difficult to make" (p. 387) (emphasis added).

Relevance of Judicial Deference Curial or judicial deference means, in the apt words of Lamer C.J., that "the courts have long maintained a 'hands off' approach to the exercise of parliamentary privilege, particularly when it is directed toward maintaining control of the internal proceedings of the House" (p. 359). Prior to 1982, judicial deference was practised toward each House of Parliament and each assembly in respect of all of the privileges of Parliament. Subsequent to the Charter, the court in N.B. Broadcasting said "Absent specific Charter language to the contrary, the long history of 40 41 42 43 44

Supra, note 18, p. 386. See Chapter 5. Debates, March 16, 1993, p. 17071-2. The Globe & Mail, March 29 and 30, 1993, April 2, 1993; La Presse, March 30, 1993; The Toronto Star, March 11, 1993. See Debates, March 16, 1993, p. 17073-4. See also Chapter 12 (Breaches of Privilege and Contempt) and also infra, this chapter.

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curial deference to the independence of the legislative body, and to the rights necessary to the functioning of that body, cannot be lightly set aside...."45 McLachlin J. says further on: I add this. Our democratic government consists of several branches: the Crown, as represented by the Governor General and the provincial counterparts of that office; the legislative body; the executive; and the courts. It is fundamental to the working of government as a whole that all these parts play their proper role. It is equally fundamental that no one of them overstep its bounds, that each show proper deference for the legitimate sphere of activity of the other." Lamer C.J. was equally clear that one branch of government should respect the independence of the other. He noted that the court had earlier expressed the importance of respecting tradition in interpreting constitutional documents. At page 358 he quoted the words of McIntyre J. in Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313 as follows: The interpretation of the Charter as of all constitutional documents, is constrained by the language, structure, and history of the constitutional text, by constitutional tradition, and by the history, traditions, and underlying philosophies of our society.47 The Chief Justice then went on at p. 359:48 The Charter cannot be interpreted in isolation from the history and traditions of our Constitution and our society. As elaborated in detail earlier in this judgement, the courts have long maintained a "hands off" approach to the exercise of parliamentary privilege, particularly when it is directed toward maintaining control of the internal proceedings of the House. This approach fosters the independence of the legislative and judicial branches of our government from one another. 45 46

47 48

Note 18 at p. 372. Supra, note 18, at p. 389. The legislative bodies in turn exercise deference by their rules of sub judice, i.e. no matter awaiting or under adjudication by a court of law should be brought before it (unless the matter is also the subject of a bill before Parliament). For an extraordinary example of a breach of this convention by the Premier of Quebec in 1982, see Debates, Quebec National Assembly, May 5, 1982 and R. v. Vermette, [1982] C.S. 1006, R.J.Q., [1984] CA 466 referred to in Joseph Maingot, Q.C., Le privilege parlementaire au Canada (Cowansville: Yvon Blais, 1987), p. 316-7, see R. v. Vermette (1988), 50 D.L.R. 385 S.C.C. For an interesting example of its application, where a debate on a question of privilege was adjourned by the Speaker because the persons in question had been criminally charged, see Journal des &bats de l'Assemblee nationale, December 7, 1993, p. 9250-1. In the Mackasey affair in the House of Commons, the privileges committee adjourned their proceedings until the charges against Mackasey in criminal court were disposed of (Minutes of Proceedings and Evidence of the Standing Committee on Privileges and Elections, 32nd Parliament (1st Session), April 28, 1983). Ibid., p. 358. Ibid.

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As Iacobucci C.J. (as he then was) pointed out in a different context, "...the review of parliamentary proceedings is not a matter to be taken lightly given the history of curial deference to Parliament and respect for the legislative branch of government generally": Southam Inc. v. Canada (Attorney General), [1990] 3 P.C. 465 (CA), at p. 478.

That the majority and Lamer C.J. were conscious of the court's historic respect for legislative proceedings is evident by the myriad references to the issue49 as well as reference to the court's independence from the legislature.5° In fact, Chief Justice Lamer said that the long-standing practice of judicial non-interference by the courts and the traditional separation of the courts and the legislative bodies resolved for him any residual ambiguity in regard to the technical and purposive interpretation of s. 32 of the Charter as it applies to the Nova Scotia House of Assembly.51 The Chief Justice appeared to equate the two: "There is a clear parallel between the doctrines of independence of the judiciary and parliamentary privilege as the latter is the means by which the Houses of Parliament protect their independence."52 Earlier at the same page he said "there is no question that the maintenance of the independence of the different branches from one another is necessary to their proper functioning." Furthermore, Cory J., although in dissent, was of the view that the procedure of using s. 1 of the Charter "would ensure that the courts would never unduly interfere with the inherent and enacted rights and privileges possessed by a legislature and which enable it to effectively carry out its role."53 In addition, while rejecting the submission that the exercise of the privilege (to exclude strangers) is beyond the reach of judicial review, Sopinka J. yet stated that he could not ignore that how the legislative assembly maintained order and decorum and ensured the smooth functioning of the assembly was an area in which the court could not dictate the precise method.54 It seems that Cory J. and Sopinka J. were suggesting that while individual rights cannot be ignored within parliamentary precincts and parliamentary proceedings, in deciding how those rights are exercised, a legislative body is entitled to have a say, with Sopinka J. giving it the final say.

49 50 51 52 53 54

Supra, note 18, p. 354, 355, 359, 364, 370, 371, 372, 388, 389. p. 388. p. 364. p. 354. p. 402. p. 398.

Ibid., Ibid., Ibid., Ibid., Ibid.,

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What would be the position of the courts in the unlikely event of the equality rights of a Member, s. 15 of the Charter, being breached during a proceeding in Parliament and, for example, the Member is suspended? On the one hand, the internal proceeding is probably considered constitutionally inherent, yet what of the Member's equality right? Would this be a case where "now and then injustice has been done by the House to individual Members of it. But the remedy, if remedy it be, lies not in actions in the courts of law (see on this subject the observations of Lord Ellenborough and Bayley J. in Burdett v. Abbot, 14 East 1 at 150, 151, and 160, 161), but by an appeal to the constituencies whom the House of Commons represents."55 Yet, is this a necessary matter without which the dignity and efficiency of the House cannot be upheld and thus the courts may not inquire? This reluctance of the majority to interfere in the internal proceedings of a House of Parliament or a House of Assembly may have been demonstrated by the fact that they found the privilege in question to be constitutionally inherent and thus part of the Constitution. Accordingly it was not necessary for the court to pose the necessary questions entailed by the proportionality test56 in s. 1 of the Charter. However, Cory J. did pose the questions and refused to justify the restriction under that section, while Sopinka J. used the same s. 1 to save the restrictions imposed by the Nova Scotia House of Assembly.57 A further question arises. The House of Commons has been historically considered to be the "Grand Inquest of the Nation":58 it inquires into the conduct of a person without a specific charge, an inquisitional system where there is no joinder of issue, as opposed to the adversarial system. While the rules of natural justice may prevail, the technical rules of evidence do not, not even in the case of those parliamentary proceedings leading to the removal of a superior court judge, because considerations such as public policy apply to the Houses of Parliament and to the legislative assemblies and their proceedings. Do the courts continue to defer here as well? Certainly committee proceedings are part of the internal proceedings over which a legislative body maintains control. But if the courts are prepared to find that a person summoned to attend proceedings relating to prima facie contemptuous remarks, or one 55 56 57

58

Bradlaugh v. Gossett (1884), 12 Q.B.D. 271 at 277. R. v. Oakes, [1986) 1 S.C.R. 103. The court's deference is not restricted to legislative bodies. For example, the field of extradition is "an area where the executive is likely to be far better informed than the courts, and where the courts must be extremely circumspect." (Canada v. Schmidt, [1987] 1 S.C.R. 500 at p. 522). "The Senate and House of Commons have the right inherent in them as legislative bodies, to summon and compel the attendance of all persons, within the limits of their jurisdiction, as witnesses...." Bourinot, emphasis added, 4th ed., p. 70.

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whose liberty is in jeopardy (s. 7, Charter) is in effect being "charged" with an offence, will that person have to be informed of the specific offence (Charter, s. 11(a)), thus precipitating a clash between two absolutes (see infra). A number of other issues have been raised by the various opinions set out in the N.B. Broadcasting decision.

1. The courts determine the existence, extent and scope of a parliamentary privilege but have no power to regulate its exercise. The majority decision said that it is up to the courts to determine whether necessity supports the privilege claimed; if it does, and only if it does, the courts will not inquire into its exercise.59 This raises the question of the role of the courts in determining the existence, extent, and scope of a parliamentary privilege. Both Lamer C.J. (p. 350) and McLachlin J. (p. 379 and 393) accept that the courts may determine the existence of a privilege or right and its extent and scope but have no power to regulate the exercise of that power. The courts are traditionally reluctant to interfere with internal proceedings, and it is clear that McLachlin J. accepts the preservation of curial deference.69 There are ample references to this deference. For that matter, all of the judges so agreed to a certain deference. Furthermore, McLachlin J. tells us that judicial deference requires the court not to view how the assembly exercises its right to exclude strangers, because it doesn't want to impinge on their independence. By narrowly defining the privilege, the court would be getting involved in an internal proceeding, long a direction courts usually have been chary to take. This difficulty was suggested by the Chief Justice in the case of freedom of speech .61 All parliamentary privileges, whether or not they are inherent and constitutional, are subject to having their existence, extent, and scope determined by the courts and thus are subject to the observation, "Of course I do not refer to any arbitrary or capricious action on the part of the Speaker or his officers, but one which was a bona fida exercise of what I consider to be a necessary power,"62 made in the context of restricting access to the precincts. It seems here at least that the court was prepared to "regulate the exercise of that power" by defining its extent and scope. When an issue involving the Charter and parliamentary privilege again comes before the courts, they will not hesitate to do their duty to 59 60 61 62

Supra, note 18, at p. 382-93, noting Stockdale v. Hansard. Supra, note 18, at p. 372. Ibid., p. 350. Payson u. Hubert (1904), 34 S.C.R. 400 at 413. This was an action for assault and battery against the Speaker and Sergeant-at-Arms.

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uphold the Constitution and the rights guaranteed in the Charter, particularly in the face of "a very unsatisfactory rule"63 on the part of a House of Parliament or assembly, or in the event of "an extraordinary case. »64 One could point to Landers v. Woodworth65 as an example of a court that would not "truckle to the assumed privileges of Parliament."66 Whereas at first blush Chief Justice Richards admitted that he was prone to accept the supremacy of parliamentary privilege, a review of the authorities compelled him to think otherwise.67 In 1874, the Nova Scotia Supreme Court held in Landers v. Woodworth that the House of Assembly was in error in holding a Member of the Assembly in contempt for refusing to apologize, and had no power to expel him for so refusing. In reviewing the resolutions of the House as a defence to the action of trespass for assault, the court examined in detail and "questioned" the proceeding of the Assembly.68 The Assembly had resolved that Woodworth's charge of corruption against another Member, which a committee found to be unfounded, was a breach of privilege. It further resolved that he should apologize. When he refused to do so, the Assembly then resolved that he was in contempt and that he withdraw from his seat until he apologized. Woodworth declined to withdraw so the Assembly then resolved that he be removed from the Assembly by the Sergeant-at-Arms, who, with his assistant, enforced the order of the Assembly and removed Woodworth. Woodworth brought an action of trespass for assault against the Speaker and certain Members of the Assembly. The Assembly had the power to discipline its Members and to maintain order, since those powers were necessary for the Assembly to fulfill its constitutional functions: while it could not expel a Member indefinitely save if convicted of a serious crime, the Assembly could remove or suspend for a limited and definite period a Member who was disorderly.69

Landers v. Woodworth (1878), 2 S.C.R. 158 at 197. An action in trespass for assault against the Speaker et al. 64 Ellenborough C.J. in Burdett v. Abbot (1811), 14 East 1 at 128, 104 E.R. 501 at 550. This was an action of trespass, false arrest, and assault against the Speaker. 65 Supra, note 63. 66 R. v. Bunting (1885), 7 O.R. 524, (Q.B.) at 538. 67 Landers u. Woodworth, note 63, at p. 176. 68 See Article 9, Bill of Rights, 1689. In 1832 the King's Bench in Lower Canada ruled that Article 9 of the Bill of Rights, 1689 "is as much in force in this province as in England." (Re Daniel Tracey (1832), Stuart's Reports L.C.K.B. 478 at 516.) 69 Opinion of the law officers of the Crown. Documents of the Canadian Constitution 1759-1915, ed. W.P.M. Kennedy (Toronto: Oxford University Press, 1918), p. 299. See also Ridley v. Carson.

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Arguably the Nova Scotia Assembly in 1874 was merely disciplining a Member for failing to obey one of its orders (to apologize) during an internal proceeding, which action, in theory, constitutes disorder. However, the problem was that the Assembly, at that period in time, lacked the penal power to punish by expulsion." The court invoked its role and authority in protecting the liberty of the subject and zeroed in on the legality of the Assembly's order to forcibly remove Woodworth for his refusal to apologize. In order to do so, the court in effect examined and questioned the circumstances to determine whether in their estimation a matter of privilege, which was the foundation for the expulsion, was in issue. In upholding the decision of the Nova Scotia court, and, incidentally, the privilege of freedom of speech in the Nova Scotia House of Assembly and of all of the Canadian legislative bodies, the Supreme Court of Canada in Landers v. Woodworth inquired as follows: "Looking at the facts of the case before us, the question arises, what was the defendant doing at the time he was forcibly removed from his seat in the House that justified the use of force and violence to which he was subjected?"71 The Chief Justice went on and questioned the authority of the Assembly to find a Member guilty of a breach of privilege if the charge made turns out, on an inquiry, to be unfounded, and questioned also how it could declare what the Member had done to be a breach of privilege. He added that "It would be laying down a very unsatisfactory rule, to make the contingency of a report of a committee being favorable or unfavorable to a charge, the ground of declaring a Member of the House guilty or not guilty of a breach of its privilege."72 He went on and declared "It is clear, that the mere fact that the evidence did not sustain the charge could not be a breach of privilege?" Interestingly enough, Bourinot cites with approval this same declaration of Richards C.J., and on the authority of this jurisprudence states that the making by one Member of an unfounded charge that has been inquired into by the House does not constitute a breach of privilege.74 By following Kielley v. Carson and Doyle v. Falconer, the Supreme Court of Canada in Landers v. Woodworth was required to inquire into and question what took place in the House, because those cases permitted 70 71 72 73 74

These penal powers were conferred in 1876 when Nova Scotia by enactment granted unto the assembly the same powers as the House of Commons. Landers u. Woodworth at p. 192 (Richards C.J.). Ibid., p. 197. Ibid., p. 204. 4th ed., p.48. It also demonstrates the linkage between procedure and the law. Richards C.J. said "One of the first and greatest of its privileges is free speech, and one of the advantages of free legislative bodies is the right of exposing and denouncing abuses by means of such free speech." See also Chapters 3 and 13.

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the court to declare "that the Nova Scotia Assembly had no power to punish for any offence not an immediate obstruction to the due course of its proceedings and the proper exercise of its functions, such power not being an essential attribute nor essentially necessary for the exercise of its functions by a local legislature, and not belonging to it as a necessary or legal incident...."75 The court found that the member's refusal to apologize did not constitute an obstruction.76 Apart from the traditional dual claim to jurisdiction by both the courts and legislative bodies, there is a further duality: the courts have declared that the independence of the judiciary is a constitutional right because of the preamble to the Constitution,77 and similarly provided that the legislative assemblies and Houses of Parliament are independent of the courts. Each respects the other and defers with regard to the business of the other. However, whether or not there is involved an inherent power, while the courts will defer to a legislative assembly, they may nevertheless determine the extent and scope of a privilege, after determining whether it exists in law and, if called upon by the facts, whether in the appropriate case it falls within the category of an "internal proceeding." How would the facts in Landers v. Woodworth be considered by the courts of today? The matter should never reach a courtroom today, for one reason, at least — because those facts no longer constitute a breach of privilege —78 but for the principal reason that internal proceedings are now constitutionally inherent. Eighteen years later the Privy Council in Fielding v. Thomas79 in a case emanating from the same assembly, came to the opposite conclusion in respect of the powers of the Assembly because of the legislation passed by that legislature in 1876 that provided the Assembly with the same powers and privileges as those held by the Commons of Canada. Accordingly, the House of Commons, and since then, the Legislative Assembly of Nova Scotia, may remove, suspend, or expel a Member with impunity and may also impose disqualification on the Member by legislation.80 75

Landers v. Woodworth (1878), 2 S.C.R. 178 at p 201-2, as quoted by McLachlin J. at p. 382. 76 It must be remembered that these events took place in 1874 in the Nova Scotia Assembly before the legislature enacted the full ler parliamenti in 1876. 77 Becutregard v. Canada, [1986] 2 S.C.R. 56 at p. 72 (Dickson J.) as quoted by Lamer C.J. in N.B. Broadcasting, p. 354. 78 See Bourinot, 4th ed., p. 48. But see to the contrary, Debates (March 16, 1993), p. 170-1-4. 79 (1896), A.C. 600. 80 See MacLean v. A G. Nova Scotia (1987), 35 D.L.R. 306 at 315 for the most recent instance. Note however that the court said "expulsion before conviction or before his guilty plea...could have been challenged" (at p. 317). See also Harvey v. Attorney General for New Brunswick et al., Attorney General of Canada et al., Interveners [1996] 137 D.L.R. (4th) 142.

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While upholding the validity of a Standing Order allowing suspension of a Member of the House pending the outcome of a criminal trial in which the Member was the accused, in an action for assault by the Member of the New South Wales Assembly against the Speaker for having been forcibly removed, the Judicial Committee of the Privy Council stated: Two things seem clear: (1) that the House itself is the sole judge whether an "occasion" has arisen for the preparation and adoption of a standing order regulating the orderly conduct of the Assembly, and (2) that no Court of law can question the validity of a standing order duly passed and approved, which, in the opinion of the House, was required by the exigency of the occasion, unless upon a fair view of all the circumstances, it is apparent that it does not relate to the orderly conduct of the Assembly81 (emphasis added).

This is not a new concept. In 1830, while upholding the right of the House of Assembly to punish for contempt, on the authority of Burdett v. Abbot, decided 19 years earlier in the U.K., an Upper Canada court, which included the Chief Justice, said in McNab v. Bidwell and Baldwin at p. 156: Proper respect should be shown to the proceedings of both Houses, and they should always be considered as acting correctly and agreeably to the rules of law and natural justice, unless the contrary appear beyond a doubt (emphasis added). This was an action in trespass and false imprisonment against the Speaker and another Member of the House of Assembly in Upper Canada. The plaintiff had been ordered to appear before a committee to give evidence and he refused to answer questions. As a result he was held in contempt and ordered committed to prison. The court held that the assembly had the right to imprison and continued on at p. 157: If it should at any time evidently appear, in the manner required by law, that the Legislative Council or House of Assembly had committed one of the King's subjects for some matter which could not with the

least semblance of truth be considered a breach of privilege according to the established principles of our constitution and the laws of the land, courts of justice would do their duty and grant such relief as the

law prescribes (emphasis added).82

Thus, in effect, the power or privilege will be reviewed when rights exercisable outside the proceedings are in issue. For example, when the liberty of the subject is involved, the courts will look at the defence put forward by the legislative body, i.e. the claimed privilege, ancillary to doing justice to the parties to the litigation. Accordingly, in Bradlaugh v. Harnett v. Crick, [1908] A.C. 470 at 475-6. (1830), Draper 144 (CA.). 82 81

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Erskine83 the court said the "assault" upon Bradlaugh by the Deputy Sergeant-at-Arms Erskine when removing him from the Chamber was the legitimate exercise of the privilege of the House to discipline its Members. In Landers v. Woodworth" the Supreme Court of Canada, in an action for assault, held that the House of Assembly of Nova Scotia did not have the privilege or power of removing a Member if he did not apologize for an alleged breach of privilege, but only had the privilege or power of removing a Member if the Member was obstructing the business of the House. Then again, the power or privilege of the House of Commons (U.K.) to regulate its own affairs was examined in Bradlaugh v. Gossett. There the Member was not asserting any rights that were exercisable outside the House. Rather, the resolution of the House that Bradlaugh objected to restrained him from doing within the walls of the House itself something that by the general law of the land he had a right to do, i.e. take the oath. But the court said the House had the power to do this because the power related to the internal management of the procedure of the House and the courts could not interfere. However, in all these instances, arguably, the courts were examining the exercise of the power. Once a person's rights that are exercisable outside the House were implicated, as in Landers v. Woodworth, the court was no longer dealing only with an "internal proceeding" and could define the extent and scope of the alleged privilege or power set up as a defence by the assembly. Canadian courts have recently commented: Historically, there has always been some question whether the Courts have jurisdiction to determine the nature and extent of parliamentary privilege. As the supreme law-giving body, it would seem only natural that Parliament should be the source of authoritative guidelines on the subject. On the other hand, there is something inherently inimical about Members of Parliament determining the nature and extent of their own rights and privileges. The Courts have seized on this to consistently review the nature and extent of parlimentary privilege.85 The N.B. Broadcasting case, however, clearly affirms the existence of constitutionally inherent privilege and clearly affirms the distinction between a constitutional power and the exercise of that constitutional power. 83

(1883), 47 T.L.R. 618. (1878), 2 S.C.R. 158. Again the reader is reminded that this activity took place in 1874, two (2) years before the legislature adopted a law granting to the assembly the full /ex parliarnenti in 1876. 85 Re Clark et al. and Attorney-General of Canada (1977), 17 O.R. (2d) 593 (H.C.), per Evans C.J.H.C. at p. 611.

84

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What in practice on a given set of facts is a constitutionally inherent power is for the court to determine. Whether in practice on a given set of facts we are concerned with a constitutional power or its exercise is for the court to determine. As to what is a constitutionally inherent power, the court has set forth the test it will apply: a fluid, reasonable overview of history, necessity as a test for jurisdiction, pragmatism, and fitting deference to the other constitutional reality, the House and its operation. As to whether in practice we are concerned with the power or its exercise, the court, as evidenced by both its majority and minority views, will seek to be realistic and discerning. But once the court in its wisdom determines, as it did in the N.B. Broadcasting case, that (1) the power is constitutionally inherent, and (2) the issue is the power itself and not its exercise, then the court will not intervene by Charter intervention, because one part of the Constitution, the Charter, cannot be used to abrogate another part of the Constitution, here the constitutionally inherent power and, on the facts, the issue of power and not its exercise.

2.

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

After stating that the Legislative Assembly of Nova Scotia had the constitutional power of excluding strangers from its deliberations, McLachlin J. went on to say that "It's no answer to a claim for constitutional privilege to say that it constitutes the mere exercise of a constitutional power."86 The Charter does not apply here, she says, not because a legislative body is never subject to the Charter but because the action in issue is an action taken pursuant to a right that enjoys constitutional status. All constitutional power is subject to the Charter, i.e. the exercise of that power. For example, s. 91(27) of the Constitution Act, 1867 gives power to Parliament to legislate in respect of the criminal law and criminal procedure, yet the exercise of such power is constantly being reviewed judicially and frequently cut down. Professor Hogg expresses concern that the court in the N.B. Broadcasting case was dealing with merely the exercise of a constitutional power and thus subject to the Charter: [T]he decision that the legislative assembly of Nova Scotia came within the word "legislature" ins. 32 of the Charter of Rights, entailed 86

Supra, note 18, at p. 393.

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the legal conclusion that all of the assembly's powers, including those conferred by the Constitution, were subject to the Charter of Rights. Professor Hogg added: As a matter of policy too, it is surely unacceptable that every exercise of parliamentary privilege powers by a legislative assembly should be exempt from Charter review.87 Similarly, both Cory J. in dissent and Sopinka J. were of the view that the exercise of the power was the issue and that it was subject to the Charter,88 but was saved by s. 1 per Sopinka J., whereas Cory J. held that the actions of the Assembly in denying access completely to the TV cameras could not be saved by s. 1 of the Charter. However, the majority concluded that in ordering the TV cameras out of the Chamber, the Assembly was dealing with the question of the power to exclude strangers from its deliberations, and not merely the exercise of that power.

3. Definition of "Necessary" The majority held that on the basis of the preamble of the Constitution, those privileges that are found to be historically recognized and necessary to the proper functioning of the Assembly are part of the Constitution and thus paramount with and may not be abrogated by the Charter. The court looked to the United Kingdom for the historical recognition and noted that the decision in Kielley u. Carson (1842) defined "necessity" for the pre-Confederation legislative assemblies. Kielley v. Carson laid down the rule respecting what was "necessary" for local assemblies outside the United Kingdom. That court said the privileges attaching to colonial legislatures arose from the common law. The legal instrument creating them would not normally provide for all of the Westminster privileges. The privileges or powers for local assemblies were "such as are necessary to the existence of such a body, and the proper exercise of the functions which it is intended to execute,"89 i.e. they were deemed to possess such powers as are necessarily incidental to their proper functioning. "These privileges," per McLachlin J., "were governed by the principle of necessity rather than by historical incident and thus may not exactly replicate the powers and privileges found in the United Kingdom" (p. 379).99 This is because Kielley v. Carson held that the power to arrest and punish for contempt is inherent in each House of Parliament 87

Hogg, Constitutional Law of Canada (1992), p. 34-8.2. Supra, note 18 at p. 395. 89 Kielley v. Carson at p. 234. so It must be remembered that the colonial legislature did not possess the sovereign powers of the present-day provincial Houses of Assembly. 88

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(U.K.) not as a necessary incident of the authority and functions of a legislature (as might be argued in respect of certain privileges), but by virtue of their descent from the undivided High Court of Parliament and in right of the lex et consuetudo parliamenti. Kielley v. Carson said the penal power is not inherent to a colonial assembly. The majority held that Canadian legislative bodies properly claim as inherent privilege those rights which are "necessary to the legislative body's capacity to function as legislative bodies."91 In defining "necessity," however, McLachlin J. said that the test of necessity is a jurisdictional one: it is for the purpose of determining the necessary sphere of exclusive or absolute "parliamentary" or "legislative" jurisdiction. If a matter falls within this necessary sphere of matters "without which the dignity and efficiency of the House cannot be upheld," courts will not inquire into questions concerning such privilege. All such questions will instead fall to the exclusive jurisdiction of the legislative body. Yet, it has for some time been generally accepted in the U.K. that all of "the privileges of Parliament are rights 'absolutely necessary' for the due execution of its powers".92 As the court in Stockdale v. Hansard said, " if the necessity can be made out, no more need be said: it is the foundation of every privilege of Parliament and justifies all that it requires." It is for the courts to determine whether the privilege existed and whether "necessity" supports the privilege claimed. If it does, the courts will not inquire into its exercise.93 The majority said necessity is a test to determine whether the court or the legislative body has jurisdiction to address the matter. If the court finds that the matter is one without which the legislative body could not uphold its dignity and efficiency, then the court will not inquire further into questions, because in such a case it will be for the exclusive jurisdiction of the legislative body. The distinction concerning the common-law criterion of "necessity" related only to the powers that were necessarily incidental to a colonial assembly. For example, the law officers of the Crown in 1815 advised that the privileges of the Upper Canada House of Assembly are such "as are directly and indispensably necessary to enable them to perform the functions with which they are invested, and therefore may be fairly said to be incidental to their constitution. Examples... "power to commit for such

91 92 93

Supra, note 18 at p. 381. May, 21st ed., p. 82. Per Lord Denman Ch.J., 112 E.R. 1112 at p. 1169, as quoted by McLachlin J. at p. 382-3.

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acts of contempt in the face of the House of Assembly as produce disturbance or interruptions of their proceedings...."94 This distinction becomes clear when we consider the penal power, which will be dealt with in detail later. While there are many points in common between the U.K. position, the position of the colonial assemblies, and the test laid down in N.B. Broadcasting as to what is "necessary" the key question now is whether the penal power is "necessary" according to the test laid down by the majority in N.B. Broadcasting.

4. In the Event the Charter is Applied Sopinka J., who also upheld the appeal and who would have held that the Charter applied, disagreed with Cory J. that the privilege at issue, the restriction of public access to the precincts or the deliberations, particularly access by the media, was contrary to the Charter. In Sopinka J.'s opinion, the restriction could be justified under s. 1. He stated: The present restriction is also rationally connected to this objective. Obviously, limiting the number and location of cameras promotes the objective of maintaining order and decorum.... While I reject the submission that the exercise of this privilege is beyond the reach of the judicial review, I cannot ignore that this is an area in which the Court should not dictate the precise method in which the Assembly should keep order in its own house. Finally, given the importance of preserving the decorum of the House of Assembly, the alleged intrusion on the freedom of the press is not out of proportion to this objective.95

Sopinka J. in effect balanced judicial scrutiny with, while not the traditional deference given to the internal proceedings of legislative bodies by the courts, a certain deference nevertheless. Section 1 of the Charter is one means by which the courts, while not avoiding interfering, may at least reduce interference with matters of internal proceedings and matters Sopinka J. says in respect of which a legislative body itself may be the better judge. Sopinka J.'s decision was not the majority decision, but his approach is likely to be significant in future cases with respect to a privilege that may not be found to be constitutionally inherent.96 While in dissent, Cory J. in turn was of the view that if the rules and regulations of the Assembly, which according to him are reviewable, are 94 95 96

Kennedy Documents, supra, note 30 at p. 297. The proportionality test is set out in R.v. Oakes, [1986] 1 S.C.R. 103. See note 23. D.L. Munn, LLM thesis, Addendum 1993, p. 8. Other personal privileges or rights of Members include the privilege to be protected from civil arrest, freedom from jury duty, and freedom from being called as a witness in a civil or criminal matter (see Chapter 9, supra). See also Harvey v. Attorney General for New Brunswick et al; Attorney General of Canada et al, Intervener [1996] 137 D.L.R. (4R) 142 where parliamentary privilege was not raised by the parties (but rather by the intervener) and the majority of the Supreme Court declined to address this argument.

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found to be in violation of the Charter, they can, like acts of the Assembly, be saved under section 1.97 Furthermore, Hallett J.A. said that even if the Charter applied, a ban on filming in the House does not consitute an infringement of s. 2(b). He further stated that even if one were to conclude that there had been an infringement of s. 2(b), it would be saved under s. 1 as "there is a pressing and substantial need to maintain decorum in the House so that the business of the province can be conducted in an orderly manner."98

5. Is Section 18 of the Constitution Act, 1867 the Source of Parliamentary Privilege? Section 18 reads as follows: 18. 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 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. In Southam Inc. v. Canada,99 the media was attempting to gain access to the deliberations of an in camera meeting of a committee of the Senate of Canada. It was refused under the power to restrict access and exclude strangers. The Federal Court of Canada declined jurisdiction to entertain Southam's application for relief. Section 18 of the Constitution Act, 1867 was one of the reasons it held it had no jurisdiction. The Federal Court of Canada is a statutory court with jurisdiction concerning federal statutes in certain areas. To establish the court's jurisdiction one must, inter alia, demonstrate that the source of the power in issue is "conferred" by Act of Parliament. The Federal Court held that the source of the privileges, immunities, and powers of the Senate was not s. 4 of the Parliament of Canada Act but rather s. 18 of the Constitution Act, 1867. The court therefore found that the source of the privileges was the Constitution and that s. 18 "conferred" the privileges directly. Section 4 of the Parliament of Canada Act merely "defines or elaborates upon the privileges, immunities and powers," and is "the manifestation of Senate privileges but it is not the source."199 97 98

Supra, note 18 at p. 402. Supra note 18, p. 56: Hallett JA of the Appeal Division of the Nova Scotia Supreme Court, whose dissent was upheld by the Supreme Court of Canada. 99 [1990] 3 F.C. 464. 100 Ibid., p. 479.

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Lamer C.J. was the only member of the court in N.B. Broadcasting to refer to s. 18, and he said: [Ms I read s. 18, it does not entrench the parliamentary privileges of the House of Commons: rather it entrenches the power of Parliament to legislate those privileges for itself in the same way that s. 45 of the Constitution Act, 1982 entrenches the power of the provincial legislatures to legislate their own privileges by way of amendments to their constitutions.101 Section 18 is the explicit legislative authority to legislate in relation to privilege. Although similar to s. 91 and 92 of the Constitution Act, 1867, it is clearly different in that in the absence of s. 18, Parliament could still legislate regarding the privileges of the Houses of Parliament. This is not the case, however, regarding s. 91 and 92, for without them, Parliament could not legislate on the subject matters they set out. Without s. 18 of the Constitution Act, 1867, Parliament would have the powers and privileges conferred by the common law (Kielley v. Carson). Parliament could also have enacted the le:cparliamenti power for each House of Parliament under s. 5 of the Colonial Laws Validity Act (28 & 29 Victoria c. 63), and since 1949, under s. 91 of the Constitution Act, 1867.102

6. Freedom of Speech Under the Charter and the Penal Power While the majority found that the Charter did not apply in this instance because the activities of the Nova Scotia House of Assembly involved the inherent constitutional privilege to exclude strangers from their deliberations, the penal jurisdiction, i.e. the power to commit for breaches of privilege or contempt, may not fit the criteria imposed by the majority and does not appear to be constitutionally inherent. Freedom of expression is constitutionally entrenched in s. 2 of the Charter. Accordingly, s. 2 protects a person alleged to have slandered a House of Parliament or assembly or Member thereof, whether orally or in print or in other media. Since the penal power does not appear to be constitutionally inherent, a House or assembly should take account of this in its proceedings against a person who makes alleged defamatory remarks against the House or its Members. In practice, most questions of privilege referred to a committee of the House or Senate relate to alleged contempts by word. It seems unlikely, in light of s. 2 of the Charter, that a 101

102

See also Reference Re Amendment of the Constitution of Canada (Nos. 1, 2 and 3) (1981), 125 D.L.R. (3R) 1 at 70, 71, where a minority of the court comes to the same conclusion. Fielding v. Thomas (1895), A.C. 600 at 610. Since 1949, Parliament could amend the Constitution of Canada (British North America (No. 2) Act, 1949, 13 GEO VI, C. 81 (UK)).

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House or assembly may proceed as it has historically, unfettered by any authority. While the public is protected by the fundamental freedom of speech set out in s. 2 of the Charter, for example, from a capricious act of punishment by a House or assembly when reflecting on the House or assembly or its Members, the person who by such reflection breaches a constitutionally inherent privilege is equally protected from the penal power by the legal rights of the same Charter. Consequently, each House of Parliament or House of Assembly may continue to determine the regularity of its own proceedings, all with impunity. But should they wish to protect their dignity and efficiency by arresting, detaining, or committing a person who is alleged to have breached any privileges or is considered to have committed an offence against the authority of the House or assembly, i.e. a contempt, each House ofAssembly or House of Parliament would be required to follow the due process provisions of the Charter. This is because it appears that the penal power is not constitutionally inherent, i.e. Canadian legislative bodies may properly claim as inherent privileges only those rights that are "necessary" to their capacity to function as legislative bodies.1°8 A person's liberty may be in jeopardy if summoned to a privilege committee to produce documents or to be asked questions. Some of the legal rights set out in the Charter (s. 7-14) may therefore apply. While the House of Commons has not "detained,"1°4 "charged," or exerted its penal power on anyone since 1913, should it attempt to do so today, (for example, in the event a witness ignores an order of the legislative body to attend), other Charter legal rights may come into play. In either case, the House or assembly would have to govern itself accordingly, or at least in accord with the relevant sections of the Charter. This will be considered again under The Penal Power.

7. The Penal Power — Penal Jurisdiction By the penal power, we refer to the penal jurisdiction of the Houses of Parliament and legislative assemblies to punish Members and non-Members for disorderly and disrespectful acts that has much in common with the authority inherent in the superior courts to prevent or punish conduct that tends to obstruct, prejudice, or abuse them while in the exercise of their responsibilities. By this means, the two Houses are enabled to safeguard and enforce their necessary authority without the compromise or delay to which recourse to the ordinary courts would give 103 104

Supra, note 18 at p. 381 (per McLachlin J.). Those persons who by their activities disrupt the proceedings of a house of Parliament or a legislative assembly or one of its committees are usually taken into temporary custody or "detained," pending identification, but invariably are not charged. (See Chapter 7 text at fn 47.)

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rise. The act or omission that attracts the penal jurisdiction of either House may be committed in the face of the House or of a committee, within the precincts, or outside it. Nor is it necessary that there should have been a breach of one of the privileges enjoyed, collectively or individually, by either House: anything done or omitted that may fall within the definition of contempt, even if there is no precedent, may be punished.105 The issue we address here is the scope of the penal power today in Canada in light of the N.B. Broadcasting case. Fielding v. ThomasiN said of the penal power at p. 609: The authorities summed up in Burdett v. Abbot, and followed in the case of The Sheriff of Middlesex, establish beyond all possibility of controversy the right of the House of Commons of the United Kingdom to protect itself against insult and violence by its own process without appealing to the ordinary courts of law and without having its process interfered with by those courts.

The penal power of the Canadian Houses of Parliament was inherited from the U.K. by virtue of s. 4 of the Parliament of Canada Act and s. 18 of the Constitution Act, 1867.107 While these are rare events, they must still be considered. The last time a Canadian legislative body imprisoned a person (Mr. Roberts) was by the Legislative Assembly of Quebec in 1922, by act of the legislature.108 The Canadian House of Commons last committed a person in 1913, and the U.K. House of Commons last detained a person by order of the House in 1888. The Australian House of Representatives last committed a person in 1955 (see R. v. Richards, ex parte Fitzpatrick v. Browne (1955), 92 C.C.R. 157). The privileges of a legislative body discussed earlier, i.e. freedom of speech of its Members, the right to maintain control over "internal proceedings" or the right to be the sole judge of its proceedings, the right to control the precincts, (for example, to exclude strangers) and the right to control the publication of debates and proceedings, all of which may be placed under the rubric "internal proceedings," or to determine the regularity of their own proceedings, would probably be considered to be constitutionally inherent. These privileges would appear to pass the test 105 106 107 108

May, 21st ed., p. 103. See also Chapters 2, 11. (1896), A.C. 600 (P.C.). See Appendix. Roberts had accused in print two unnamed Members of the assembly of implication in the murder of a young woman a year earlier, but refused to name the Members. The legislature passed a law providing for one (1) year of imprisonment because it felt that the expected duration of the session was not long enough of a confinement as punishment for the contempt (Stat. of Quebec, 1922, c. 18). There was a subsequent Royal Commission, and Roberts was released after about three (3) months.

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set out in N.B. Broadcasting. What remains to be determined is the position of the penal power: the power to arrest, detain, and commit to prison and "the right to protect itself against insult and violence by its own process." By means of their penal power or jurisdiction, legislative bodies are able to safeguard and enforce their necessary authority without the compromise or delay to which recourse to the ordinary courts would give rise.109 McLachlin J. noted that Kielley v. Carson held in 1842 that a Canadian colonial legislative assembly did not have the power to arrest in order to commit for a contempt occurring outside of the assembly because such a power was not a necessary legal incident provided by the common law: the courts could investigate and punish contemptuous acts against the assembly. Kielley v. Carson went on to say that the legislative assembly nevertheless had such powers derived from the common law as are necessary for its existence and the proper exercise of its functions, which includes the right to protect itself from impediments to the due course of its proceedings. In 1878, the Supreme Court of Canada in Landers v. Woodworth, by holding as it did,11° implied that such a local sovereign legislative assembly that had yet to enact the full parliamentary privilege had the power to punish a Member for contempt that amounted to an immediate obstruction to the due course of its proceedings and the proper exercise of its functions, only by removing the Member. Any penal powers beyond that were not essentially necessary and did not belong to a local legislative assembly as a necessary or legal incident.111 This was cited with approval by the majority in N.B. Broadcasting (p. 382). To put it another way, while parliamentary privilege, including the penal power, was considered necessary in the U.K., this was not the case in Canada, or at least in Canada since 1842, as the common law did not include the penal power to be necessary for a legislative body to perform its constitutional functions. The penal power in the U.K. Commons stemmed from its role as part of the undivided High Court of Parliament and by ancient custom and practice (lex parliaments). While by the common law the penal power may not be "necessary," nevertheless, the Houses of Parliament by virtue of s. 18 of the Constitution Act, 1867 and s. 4 of the Parliament of Canada Act and by 109

110

111

Bartlett u. Abbot (1811), 14 East 138, 150-1: Denman C.J. in Sheriff of Middlesex 3 State Tr (ns) 1253: Select Committee on Proceedings relating to Sir Francis Burdett, 2nd report, D.J. (1810), 732; 1 Hatsell, App. 6. I.e., that the Nova Scotia Assembly had no power to remove one of its Members for contempt unless he is actually obstructing the business of the House. The Supreme Court of Canada noted that the Member, Woodworth, was removed because he refused to apologize. Thus, they also impliedly held that silence is not obstruction. p. 201, Landers u. Woodworth.

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virtue of their power to amend their constitution and their respective legislation, as well as each of the provincial assemblies, are now endowed with all of the privileges of the lex parliamenti. What would need to be determined is the scope of the penal power. Does it mean that when considering punishing, for example, for failing to appear as a witness or for failing to answer questions, as in the case of R.C. Miller in 1913 as ordered by the House of Commons, that the House need adhere to the Charter's legal rights of a person that the House arrests and detains for failing to obey its order? The courts could be asked by the recalcitrant witness to intervene. Furthermore, such an event is no longer only part of an internal proceeding: the act of arresting or detaining affects the person's liberty, and the courts will protect the liberty of the subject by looking at the legality of the relevant proceedings of Parliament. Today it will be more likely a case of a legislative body issuing a formal request for the attendance of a person as a witness in connection with an allegation of contemptuous remarks that have been found to be prima facie contemptuous and when the matter has been referred to the relevant committee. In such a case, should the person who is summoned before the committee be reluctant to attend and the assembly or House remains adamant,112 that person may seek relief and invoke the protection of the courts for, among other things, a declaration that s. 2 of the Charter protects their freedom of speech from the wrath of the House or assembly in question.113 At that point, the courts would be required to look at the effect of the legal rights set out in the Charter on someone who is so summoned and balance the relevant rights of the Charter with the historical rights and privileges of Parliament in the light of/V.B. Broadcasting. Included among those rights is the right of a House or assembly to vindicate its authority as the "grand inquest of the nation,"114 with all its inquisitional procedures that do not require setting out a charge to be met, and no joinder of issue; an inquisitorial system, not the adversarial system, using not the technical rules of evidence but rather considerations of public policy, even when considering the removal of a superior court judge. Furthermore, the courts historically have acted to protect the rights of persons exercisable outside the House or assembly. The circumstances surrounding an alleged contempt include both physically getting the 112

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The House or assembly would have to decide whether the matter is sufficiently serious for it to take the time to debate and adopt the committee report, then to debate a motion to order the attendance of the person. If the person refused to attend, the House or assembly would then need to debate whether to authorize the Speaker to issue his warrant. See D.L. Munn, Parliamentary Privilege and the Charter, L.L.M. Thesis 1992, Addendum 1993, U. of Ottawa, Chapter 3. Stockdale v. Hansard (1839), 9 Ad. & EL 1 at 115 and supra this chapter.

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alleged contemner before the proceeding of the House or assembly by Speaker's warrant and then questioning that person. In both cases, this involves the rights of a third party outside a proceeding, i.e. the liberty of the subject and one in which the courts have traditionally intervened to protect. Should an alleged contemner go before the court for relief under the Charter, the N.B. Broadcasting decision directs that a court should determine whether or not the matter involves an historically recognized privilege and falls within the necessary sphere of exclusive or absolute parliamentary or legislative jurisdiction without which the dignity and efficiency of the House cannot be upheld, and also remains necessary in the Canadian context of the current year. In an early application of the N.B. Broadcasting case, the general division of the Ontario Court ofJustice granted summary judgment to the Speaker of the House of Commons and denied the application by the plaintiff for a declaration that he was entitled access to the precincts of Parliament on the same terms as members of the Canadian Parliamentary Press Gallery. Bell J. ruled that the Speaker's decision to deny access represented the exercise of a parliamentary privilege necessary to the capacity of Parliament to function, and therefore was not subject to Charter review.115 Whether or not the court finds that the penal power is historically recognized or necessary to the proper functioning of the legislative body, i.e. constitutionally inherent, arguably, any exercise of the penal power, such as summoning of witnesses to attend before a committee of the legislative body concerning a matter of privilege, may be subject to the scrutiny of the Charter and its processes. Since a person summoned as a witness is required to attend, to produce documents, and to answer questions, and upon failure to do so to be subject to the penal jurisdiction of the legislative body, s. 7 and 8 of the Charter may be infringed, for the Supreme Court has repeatedly affirmed that imprisonment, or the threat of imprisonment, is a deprivation of liberty.116 One uncertainty, however, is just how immediate a threatened deprivation of liberty must be.117 Furthermore, a witness before a legislative body or one of its committees is compelled by the rules of that body to answer any questions: the Supreme Court of Canada has held that the principles of fundamental 115

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Robert Gilles Gauthier— the National Capital News— the Ottawa Downtowner—the Ottawa Entertainers v. Honourable John A. Fraser, PC., M.P., LLB; Speaker of the House of Commons. November 30, 1994. Court file 66545/92. Bell J. not reported (Gauthier et al v. John Fraser, Speaker of the House of Commons). In 1963, a committee of the House had recommended that the Speaker should ultimately decide on issues of accreditation to the Press Gallery (Journals, December 20, 1963, p. 763). See also Sopinka, Lederman & Bryant, The Law of Evidence in Canada (Toronto: Butterworths, 1992), at p. 1034. David Stratas, Charter of Rights and Litigation, (Toronto: Thompson Educational Publishing, 1995), p. 17-2.1.

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justice include a limited right to silence and requires that the person's free choice not to speak be respected by the state. However, in Thompson Newspapers Ltd. v. Canada (Director of Investigation and Research, [1990] 1 S.C.R. 425), where a provision of the Combines Investigation Act (R.S.C. 1970, c. C-23 later R.S.C. 1985 c. C-34) authorized the issuance of orders requiring persons to appear before the Restrictive Trade Practices Commission to be examined under oath and produce documents, it was held the orders did not violate s. 7 and 8 of the Charter. Also, if a court considered that a person whose conduct was being examined before a committee of a legislative body and subject to its inquisitorial nature was in effect a person "charged with an offence," section 11(c) may be infringed, since such a person has the right "not to be compelled to be a witness in proceedings against that person in respect of that offence."118 Perhaps the Charter may not change much in the overall practice of assemblies or Houses of Parliament. None of them have been obliged to assert themselves a great deal since R.C. Miller was held in contempt and jailed for refusing to answer questions before the House in 1913. As we saw earlier, in 1922 the legislature of the province of Quebec passed a law jailing a journalist for one year. It remains open for the courts to find that the penal power is constitutionally inherent to a House of Parliament or a legislative assembly because the court in N.B. Broadcasting v. Nova Scotia did not deal with that squarely. As was noted earlier, the Privy Council in Kielley u. Carson was reluctant to provide a colonial assembly with the penal power as necessarily incident because (i) it said that the power was "open to abuse"P (ii) there was no decision of a "Court of Justice nor other authority" in favour of the right; (iii) it was not necessary for the exercise 118

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While the rights under s. 11 of the Charter only attach to persons "charged with an offence," contempt of Parliament has traditionally been characterized as an "offence" because a person whose conduct is being examined may be considered to be a person "charged." Moreover, the marginal note accompanying s. 11 of the Charter, whatever its interpretative value, reads "proceedings in criminal and penal matters," indicating that its application may not be restricted to matters that fall within the boundaries of purely "criminal law." See Bernhardt, Peter, The Contempt Power of the Canadian House of Commons — The Case for Reform, LLM thesis, University of Ottawa, 1992. The Privy Council would have been aware of the events that followed the Newfoundland Assembly's arrest and committal of Kielley. The day after Kielley was committed, a successful application for habeas corpus was made. Upon Kielley's release the next day, the Assembly thereupon ordered the arrest of the judge who granted habeas corpus and of the High Sheriff, and also ordered the re committal of Kielley. This activity directly occasioned the prorogation of the session by the Governor. (See Printed Cases in P.C. Appeals, Appendix C, p. 72 at 77.) Kielley v. Carson was decided six years after its decision in Beaumont v. Barrett (1836), 1 Moo. P.C. 59, where it held that the colonial assembly of Jamaica had the penal power of the U.K. Commons. Beaumont v. Barrett did not involve the jailing of a judge, however. Rather, the Assembly had jailed a newspaper publisher for an article it considered to be contemptuous.

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of its functions; and (iv) the penal function could be performed with the aid of ordinary tribunals to investigate and punish contemptuous insults and interruptions. However, after 1867, the former colonies that had been answerable to the Imperial Parliament became sovereign provinces, as supreme in their legislative jurisdiction and their privilege jurisdiction as is the Parliament of Canada: (i) the instances of abuse that were to be found in the English Commons in the previous (18th) century and in the aftermath of the Kielley incident in Newfoundland represent another era; (ii) there were a number of rulings in the Upper, Lower Canada and United Province assemblies and in their courts that recognized the penal power;12° (iii) years earlier, Ellenborough Ch. J. in Burdett v. Abbot had said the penal power was essentially necessary, because (iv) the assembly would not stand high in the estimation and reverence of the people if they had to turn to the comparatively slow proceedings of the courts whenever they were insulted.121 Moreover, the independence of the legislative assembly with respect to the courts and the deference of the courts to the assembly in respect of the business of the other and their independence have eventually become part of the Constitution. In effect, Kielley v. Carson was concerned with a colonial assembly without sovereign powers, hardly the case of the Canadian provinces since 1867.122 While clearly indicating that it will defer to the Houses of Parliament or House of Assembly in appropriate cases (e.g. where it involves an internal proceeding and they should not substitute the judgment of the House or assembly for theirs), the court in N.B. Broadcasting rejected the 120

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The law officers of the Crown in 1815 had advised that one of the privileges that was necessarily incidental to the local legislatures was the power to commit for such acts of contempt in the face of the assembly as produce disturbance or interruptions (see supra note 30). See also O'Brien, Gary, Pre-Confederation Parliamentary Procedure: The evolution of legislative practice in the Lower Houses of Central Canada, 1792-1866, doctoral thesis, Carleton U. 1988 (unpublished) p. 108-13, 191-6, 303-4. See also the case of a Mr. Archibald Hinshelwood, who rudely accosted a Member, Mr. Pantree, and was committed to custody December 14, 1758, by the Nova Scotia Assembly (History of Nova Scotia andAcadie by Beamish Murdock, Q.C., Vol. II, 1866, p. 354). See also the case of John A. Barry, a Member of the Nova Scotia Assembly committed to jail custody April 4, 1829 (Journals, p. 521). On April 14, 1829, Frederick Major was committed to jail for "assisting, aiding, and abetting in the rescue and escape of the said John A. Barry from the custody of the said Sergeant-at-Arms, while lawfully in his custody...." (Journals Nova Scotia, 1829, p. 555). See also pre-1842 cases cited in Chapter 11. A jurisdiction of privilege implies a power of enforcement. As Cushing has pointed out, the privileges of a legislative assembly would be entirely ineffectual to enable it to discharge its functions if it had no power to punish offenders, to impose disciplinary regulations upon its members, or to enforce obedience to its commands. Cushing, Legislative Assemblies in the United States (1856) para. 603. See also Ellenborough Ch. J. in Burdett v. Abbot. Liquidators of the Maritime Bank of Canada v. Receiver-General of New Brunswick (1892), A.C. 437.

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argument that the Charter can never apply to any of the actions of a legislative assembly. Where the courts have before them a matter that they determine not to be an "internal proceeding," they will assert their jurisdiction and intervene.

Summary and Conclusion The fundamental freedom of expression, including freedom of the press, set out in s. 2(b) of the Charter was put to the test in N.B. Broadcasting in the face of an equally fundamental right to exclude strangers from the deliberations and precincts of the Nova Scotia House of Assembly to which the Assembly was historically entitled as part of its parliamentary privileges. In this case, the press attempted to invoke its right of freedom of the press in order to invade and televise the proceedings of the Assembly. The Speaker answered by saying that this would interfere with the decorum and efficacious proceedings of the Assembly. Furthermore, it would have no control over the production and use of the film. A minority of the Nova Scotia Supreme Court, Appeal Division, and the majority of the Supreme Court of Canada found that the Assembly had the parliamentary privilege to exclude strangers, including the press, and that this privilege was an inherent one that had constitutional status, and thus it could not be abrogated by another constitutional power, viz., the freedom of the press under s. 2(b) of the Charter. The case turned on whether the Charter applied to the Nova Scotia House of Assembly. If the Charter applied, the activities of the Assembly (as opposed to those of the legislature, i.e. legislation) would be subject to the Charter's relevant restrictions. If the Charter did not apply, its restrictions would not apply to activities of the Assembly. The Chief Justice found that, on a textual and purposive interpretation of s. 32, the Charter does not apply to the Assembly. Furthermore, because of the history of judicial deference to inherent privileges, such as the right to exclude strangers, the Charter does not apply here. Sopinka J. and Cory J. found that the Charter does apply to the Assembly because privileges are "within the authority of the legislature." The majority chose the middle ground and said maybe, i.e. the Charter may apply at times. The legislative assembly (or House of Parliament) could be a government actor subject to the Charter in matters unrelated to privilege; however, the Charter does not apply when the Members of the assembly exercise their inherent privileges because such privileges are part of the Constitution and may not be invalidated by another part.

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The majority held if it could be established that the privilege is one that has an historical foundation and that it is necessary for the assembly in the sense that its dignity and efficiency would not be upheld without it, in that event the court will not intervene, because in such a case the assembly has complete jurisdiction over the matter. In her judgment for the majority, McLachlin J. set out broad, fluid concepts and left the door open intentionally for the court to intervene in those instances when it should find that the activity or matter in question is not necessary to maintain or uphold the dignity and efficiency of the legislative body. Prior to the Charter, the courts determined the existence, extent, and scope of a claimed parliamentary privilege, but would not examine its exercise. Post-Charter and following N.B. Broadcasting, the courts still would determine the existence, extent, and scope of a claimed parliamentary privilege, but if the court finds that the privilege is constitutionally inherent, the court will not subject its exercise to Charter review. If, however, the court fmds that the claimed parliamentary privilege is not constitutionally inherent, the exercise of the parliamentary privilege will be subject to Charter review. The test for constitutional inherency is, after establishing that the alleged parliamentary privilege has an historical foundation, a jurisdictional one: is the privilege a matter that falls within the necessary sphere of matters, without which the dignity and efficiency of the House or assembly cannot be upheld? If so, the courts will not inquire into questions concerning such privilege: such questions will instead fall to the exclusive jurisdiction of the legislative body. In effect, the majority said the Charter does not do away with traditional, historic Parliamentary privilege that is constitutionally inherent and necessary for its independence, and therefore does not add to the traditional role of an independent judiciary a new comprehensive control over all the legal structures of the contemporary Canadian nation-state. The Charter is indeed a new tool for the protection of the individual against the external acts of the legislature or the executive, however future decisions may characterize them as public actors. The Charter, however, is not a tool for any further judicial interference with the internal workings of the Houses of Parliament. The courts may use the Charter to protect the individual from external acts of the Houses of Parliament. They may not use it to tell the Houses of Parliament or the legislative assemblies of the provinces or of the territories how to determine the regularity of their proceedings either to clean up or how to

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clean up their internal acts, i.e. how to run their own affairs and own internal procedures, any more than the law presently does.123 The right to exclude strangers was found to be a constitutionally inherent privilege, and the court would not look into how it exercised that privilege because that would in effect question the right itself, according to the majority. Nevertheless, both McLachlin J. for the majority and Lamer C.J. stated that it is for the courts to determine the existence, scope, and extent of privilege, but not their exercise. Historically, when doing this very thing, Canadian courts have examined the facts, even "questioned" whether the conduct constituted a question of privilege and determined whether internal proceedings were involved. Thus, in Landers v. Woodworth, in an action of trespass for assault when the Member was forcibly removed from the Chamber, the Supreme Court of Canada examined the then current legal basis for that act and held that the Nova Scotia House of Assembly did not have the legal right to exclude a Member for failing to apologize, but only if the Member was obstructing the proceedings: in other words, silence does not constitute obstruction. In Bradlaugh v. Gossett, in an action for a declaration that 123

What is unchanged is that : If injustice has been done, it is injustice for which the Courts of law afford no remedy. The history of England, and the resolutions of the House of Commons itself, show that now and then injustice has been done by the House to the individual members of it. But the remedy, if remedy it be, lies, not in the actions in the courts of law.... but by an appeal to the constituencies whom the House of Commons represents in an action between party and party brought in a court of law, if the legality of a resolution of the House of Commons arises incidentally, and it becomes necessary to determine wheter it be legal or not for the purpose of doing justice between the parties to the action; in such a case the Courts must entertain and must determine that question.... when a question is raised before the Court, the Court must give judgment on it according to its notions of the law, and not according to a resolution of either House of Parliament. Cases may be put, cases have been put, in which, if they did ever arise, it would be the plain duty of the Court at all hazards to declare a resolution illegal and no protection to those who acted under it. Such cases might by possibility occasion unseemly conflicts between the Courts and the Houses. Alongside, however, of these propositions, for the soundness of which I should be prepared most earnestly to contend, there is another proposition equally true, equally well established.... What is said or done within the walls of Parliament cannot be inquired into in a court of law. ....The jurisdiction of the Houses over their own members, their right to impose discipline within their walls, is absolute and exclusive. Whether in all cases and under all circumstances the Houses are the sole judges of their own privileges, in the sense that a resolution of either House on the subject has the same effect for a court of law as an Act of Parliament, is a question which it is not now necessary to determine. No doubt, to allow any review of parliamentary privilege by a court of law may lead, has led, to very grave complications.... ....But, to hold the resolutions of either House absolutely beyond inquiry in a court of law may land us in conclusions not free from grave complications too. It is enough for me to say that it seems to me that in theory the question is extremely hard to solve; in practice it is not very important. Bradlaugh v. Gossett, p. 274, 275, 277.

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the order of the House forbidding a Member from taking the oath as a Member and for an order from the court restraining the Sergeant-at-Arms from preventing the Member to enter the House to take the oath, the court held that the House of Commons (U.K.) had the legal right to exclude the Member for obstruction and that it was a matter of internal discipline, since only the House had the legal right to interpret a statute that bore on the actions of Members inside the House. And in an action for assault, the court in Bradlaugh v. Erskine said the "assault" upon Bradlaugh by the deputy Sergeant-at-Arms when denying him access was the legitimate exercise of the privilege of the House to discipline its Members. With respect to the internal matter of determining who may come upon the precincts and enter the Chamber, Hallett J.A. put this well in his dissenting judgment in the Appeal Division of the Nova Scotia Supreme Court, which was upheld in N.B. Broadcasting. Lamer C.J. summarized Hallett J.'s analysis at pages 339 and 340 of his decision, where, referring to Hallett J.A.'s dissent, the Chief Justice noted that: Hallett J.A....made clear that, prior to the Charter, while the courts exercised jurisdiction to determine "if the action of the Members in a particular instance was within the ambit of the recognized privileges of the House", they had no authority to review "the exercise of that privilege where it concerns the 'internal proceedings' of the House" (p. 47) (emphasis in original). He reasoned that the Charter did not change this state of affairs....

Finally, there remain the implications of the Charter for the penal power of Parliament. Here a different picture may emerge where a third party outside the precincts of Parliament utters allegedly contemptuous words about Parliament or any of its Members, or where a person disobeys an order of the House and the legislative body wishes to punish by commitment. Another situation may be the scenario raised by Cory J. By way of example, he used to seek to justify his view that the legislative assembly seems to be a public actor subject to Charter scrutiny in all its actions. Cory J. at page 401 states: For example, would there be any question that the Charter would apply if, in exercising its jurisdiction with regard to punishment of a Member for contempt, the legislative assembly were to sentence that Member to life imprisonment without eligibility for parole? Surely such an action would fall outside the scope of parliamentary privilege and the provisions of s. 12 of the Charter applying cruel and unusual punishment would come into play.

An answer to Cory J.'s example is attempted to be supplied at p. 348-9 infra.

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Summing Up I. Penal Power N.B. Broadcasting set out criteria or tests to determine when a constitutionally inherent power or privilege of Parliament exists. It applied these criteria to the power to exclude strangers and found that this power is constitutionally inherent. Since it is constitutionally inherent, it is not subject to Charter review, because one part of the Constitution (power to exclude strangers) cannot be obliterated by another (Charter). N.B. Broadcasting did not deal with the power to remove an obstruction, although it refers to this power. One may reasonably infer that this power, like the power to exclude strangers, which it resembles but is not identical with, is also constitutionally inherent, because it certainly fits the criteria set out in N.B. Broadcasting. Furthermore, the court in N.B. Broadcasting made numerous references to the judicial deference required toward the internal proceedings of the assembly. Landers v. Woodworth124 notwithstanding, it will be seen that the Charter does not affect its operation. In addition, a legislative body may continue to hold a person in contempt and invoke its particular procedures while fulfilling its role as "grand inquest of the nation." Unless the penal power is constitutionally inherent, the penal power in the Canadian Parliament and in provincial legislative assemblies exists by virtue of legislation. Also, it may be only with great difficulty that one can argue historically that colonial legislatures had this power as "constitutionally inherent." Accordingly, it may not meet the criteria of N.B. Broadcasting. That is to say, should such a matter come before them, unless the courts agreed that the dignity and efficiency of the House of Parliament or assembly could not be upheld without the penal power, such a power is not a constitutionally inherent one and its exercise would be subject to the Charter. In this way, before the assembly or House could detain or arrest or commit to prison, the Charter rights pertaining to someone arrested or detained would need to be observed. In such a case, a legislative body will now be required to set out in its "charge" the set of facts that constitute the alleged contempt and provide that person with the relevant legal rights before that person is subjected to its penal power or penal jurisdiction. 124

Because it was an action in trespass for assault, Landers v. Woodworth did not involve merely an "internal proceeding." The court ruled the actions of the assembly to be illegal and without jurisdiction. The authority to do the very act of expelling a Member was granted to the assembly by the enactment of what became R.S. N.S. 5th series, c. 3 (1876).

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Equally, perhaps, the courts may be called upon to rule on whether a person summoned as a witness in a privilege matter is a person "charged" per the Charter and accordingly invoke the relevant Charter rights. Even if the courts were to find that the penal power was constitutionally inherent, that would not diminish the inherent power or right of the superior courts to protect the liberty of the subject from "outrageous cases" (Burdett v. Abbot per Ellenborough J.), or acts that are "contrary to the rules of law" (McNab and Bidwell v. Baldwin), or where the Standing Order does not relate to the "orderly conduct of the Assembly," (Harnett v. Crick), or "in the use of arbitrary or capricious or malicious action on the part of the Speaker or his officers" (Payson v. Hubert). In other words, the courts remain entitled to define the jurisdiction of a legislative assembly as a matter of law. In effect, the Charter puts more arrows in the judicial quiver. Prior to the Charter, the courts in that same jurisprudence had ruled that where the rights of persons exercisable outside the assembly or House are involved — i.e. in party-and-party litigation where orders or resolutions of the House are raised as a defence, the courts will look into the validity of the resolution that affected the liberty of the subject to ascertain its legality. In other words, the courts will always look at what is the law when litigants come before it, even the law relating to how a legislative body performs its functions. However, the exercise of the power or privilege to regulate their own internal proceedings is not affected by the Charter because this privilege is constitutionally inherent and the rights of persons exercisable outside the House are not then in issue.' To the correct proposition in law that "what is said or done within the walls of Parliament cannot be inquired into in a court of law" may well be added, "where what is done by order of the House does not affect the rights of persons that may be exercisable outside the walls." This is so because the correct proposition in law that "the jurisdiction of the Houses over their own Members, their right to impose discipline within their walls, absolute and exclusive" is literally limited to the walls, and therefore, if the House decides, for example, to punish by commitment, that is an event that takes place outside the walls: even if it was commitment to an area within the precincts, such a resolution affects the liberty of the subject, and freedom is conceptually a right exercisable inside and outside the walls of Parliament. Furthermore, the courts will no longer heed a general warrant issued by a legislative body that does not set out the causes of the 125 Otherwise

it remains open to the courts to rule on whether e.g. the equality rights of the Charter apply in these proceedings.

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commitment.126 That is to say, that aspect of Burdett v. Abbot no longer applies in Canada.

II. Judicial Deference (1) Historically, courts have acted deferentially (i.e. have refused jurisdiction) toward Parliament when Parliament's privileges were concerned. In the U.K, these privileges included the penal power (a judicial power) because of the particular history of the British Parliament: the House of Commons formed part of the High Court of Parliament, and because of ancient usage and prescription. (2) Courts have also acted deferentially towards colonial legislatures when their privileges were concerned. These privileges were either constitutionally inherent or were contained in the express grant and instructions.127 The powers and privileges to exclude strangers and to remove an obstruction are constitutionally inherent to any legislative assembly, as well as a Member's freedom of speech, and the right to regulate its own affairs, and the courts therefore deferred when these were in issue. However, save in those instances in Canada that predated Keilley v. Carson and rarely after 1842, unless the penal power was expressly granted to a colonial legislature, it had no such power, and the courts did not therefore defer in those instances. (3) Today, the Canadian Parliament and the legislative assemblies have the constitutionally inherent privileges to remove strangers, to remove obstructions, freedom of speech and the right to regulate internal affairs and therefore Courts should continue to act deferentially when these powers are in issue. With the N.B. Broadcasting case it appears clear that these powers are not subject to Charter review at the present time. Whether future decisions will attempt to change this decision and subject such privileges to Charter review remains to be seen. (4) The real remaining question is whether the penal power in Canada, federal or provincial, will be subject to Charter review, because it is probably not constitutionally inherent under the test in the N.B. Broadcasting case, but rather derives from federal and provincial legislation. (5) A further distinction emerges from case law as to judicial deference: (i) the court will look into the validity of the power or privilege claimed in litigation between parties where the defendant asserts the privilege as a defence and it becomes therefore 126

Charter, s. 10, 11. Crown probably did not have the power to confer them.

127 The

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necessary to determine its legality to do justice between the parties to the action: Burdett v. Abbot; Bradlaugh v. Erskine; Keilley v. Carson; Landers v. Woodworth; Fielding v. Thomas; Harnett v. Crick; McNab and Bidwell v. Baldwin; Payson v. Hubert. [Note also Re Clark and AG. Canada, where the Ontario High Court accepted jurisdiction to interpret whether regulations passed under the Atomic Energy Control Act infringe, override or abridge parliamentary privileges.] (ii) The court will not look into the validity of a power or privilege where a person applies to the court for a declaration that an order of the House that has no effect beyond the walls of the legislative body128 is ultra vires and void, or applies for an order restraining an officer of the House from carrying out an order,129 regardless of whether this results in an injustice. "The remedy, if remedy it be, lies, not in actions in the courts of law, but by an appeal to the constituencies whom the House of Commons represents": Bradlaugh v. Gossett per Coleridge L.C. at p. 277. (6) The answer to Cory's extreme example that he used to justify the applicability of the Charter to all privileges in all situations has therefore been supplied long ago by Lord Ellenborough at p. 550 of Burdett v. Abbot. The answer does not call into play the Charter but rather the inherent power of the judiciary to protect the liberty of the subject. That is to say, while the Charter would compel a House or assembly to comply with its provisions should that House or assembly arrest or detain or order the commitment of a person, the inherent power of the judiciary to protect the liberty of the subject is invoked when a person sues for having been imprisoned or detained or arrested or trespassed by officers of the House or assembly. In Burdett u. Abbot, an action in trespass, Holroyd, in argument for the plaintiff, put to the court this example: Suppose a case, however improbable, to happen, that the House were to direct the Speaker to issue his warrant to put a man to death: none of those who formed the resolution in Parliament would be responsible; but for the execution of such an order, for the act done out of Parliament, the person who issued the warrant, and those who executed it, would be responsible for murder. Note especially Lord Ellenborough's reply in brackets. The court today would find that the legislative body had no jurisdiction to so 128 129

But see Swinton as to whether an order or resolution has such an effect. Bradlaugh v. Gossett. For example, in Canada see Gabias v. Legislative Assembly of Quebec & AG. Quebec, May 3, 1965, Quebec Superior Court, district of Quebec (No-138-195). Unreported, Casgrain J.C.S. See also May, 21st ed., p. 159, discussion at fn 2.

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condemn a person because, for among other reasons, the Journals of the House could not demonstrate such a practice. [Lord Ellenborough, Ch.J. The question in all cases would be whether the House of Commons were a Court of Competent Jurisdiction for the purpose of issuing a warrant to do the act. You are putting an extravagant case. It is not pretended that the exercise of a general criminal jurisdiction is any part of their privileges. When that case occurs, which it never will, the question would be whether they had general jurisdiction to issue such an order; and no doubt the Courts of Justice would do their duty] (at p. 550.)

In a Nutshell Returning to Bourinot, citing Anson,13° it seems that the Charter has not changed the question of jurisdiction of the courts over parliamentary privilege. To paraphrase, Anson said that save for the regulation of its internal matters, the courts will always examine a claim of parliamentary privilege when such a matter comes before the courts in a dispute between litigants. The court in N.B. Broadcasting held that when examining a claim of privilege, the courts must determine whether they have jurisdiction: if the matter or privilege in question is historically rooted, is one that falls within the necessary sphere of matters without which the dignity and efficiency of the House or assembly cannot be upheld, and is currently necessary pragmatically, then the courts will not inquire into questions concerning such privilege because in that case, it is a matter for the exclusive jurisdiction of the House or assembly, not for the courts. This is because such privileges are part of the Constitution: they are constitutionally inherent. Accordingly, while the Charter compels the courts to rule whether laws and government acts are invalid, the Charter has not reallocated powers of the courts and of the Houses of Parliament or assemblies. Those powers and privileges that are constitutionally inherent, such as the power to exclude strangers, to control its publications, to regulate its other internal proceedings and affairs, remain the exclusive jurisdiction of the House or assembly, and the courts will decline jurisdiction when they arise. More specifically, the courts will decline jurisdiction in the case of a Member of a legislative body seeking a remedy against that body or its officers that would protect the Member in acting out or asserting his rights as a Member of that legislative body. This was the case in

130 See the end of Chapter 13.

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Bradlaugh v. Gossett131 and in Go-bias v. Legislative Assembly of Quebec.132 However, in litigation between a person and a legislative body or its officers, the court will be required to look into the validity of any defence raised by the legislative body or its officers. As such, the court will look into the validity of the privilege claimed ancillary to doing justice as between the parties to the litigation. In that sense, the court looks into privilege and its exercise. This was the case in Landers v. Woodworth.133 There the court admitted the validity of the privilege to exclude someone if they are disrupting, but under the law as it then existed, Woodworth's actions prompting the order for him to apologize did not warrant a finding of breach of privilege, and his silence in not apologizing as ordered by the assembly did not amount to disruption. Similarily, the court in Bradlaugh v. Erskine134 admitted the power of the House of Commons to exclude by resolution one of its Members for disrupting the proceedings, and the court was not concerned with the reasons. The difference between Landers v. Woodworth and Bradlaugh v. Erskine is that in Landers, the assembly did not at that time have the power to exclude for any reason, whereas in Bradlaugh v. Erskine, the House of Commons did have that power. Similarly, while the penal power remains a power or privilege, it continues to be subject to the court's inherent power to protect the liberty of the subject in appropriate cases, with the added protection provided by the Charter in that the Charter has infringed on the right of a House or assembly to arrest, detain or commit the subject.135 In effect, the Charter is irrelevant to the regulation of "internal affairs" of the House or assembly in the light of N.B. Broadcasting. However, when it comes to activities outside the proceedings and where the liberty of the subject is affected, the courts will continue to be the protector of the subject's liberty, and the Charter has provided an additional arrow in thejudicial quiver: while it may find that a person may be in contempt, if a legislative body proposes to arrest, detain, "charge," or commit that person, it must reckon with the Charter136. Unless of course the courts are prepared to find that the penal power, as defined by Burdett v. Abbot, is necessary for the legislative body to uphold its dignity and efficiency in the event of "an extraordinary case". 131

(1884), 12 Q.B.D. 271. Supra, note 121. 133 (1878), 2 S.C.R. 158. 134 (1883), 47 T.L.R. (N.S.) 618. 135 It will be recalled that Burdett v. Abbot, which has been the law of Canada, said that the Speaker's warrant did not require to set out the reasons for the commitment or the contempt. 136 Ellenborough Ch.J. in Burdett v. Abbot (1811), 14 East 1 at 128, 104 E.R. 501 at 550. This was an action of trespass, false arrest, and assault against the Speaker. 132

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APPENDIX

THE BILL OF RIGHTS, 1689 1 William & Mary (Sees. 2), c. 2 (U.K.) AN ACT declaring the Rights and Liberties of the Subject and Settleing the Succession of the Crown. WHEREAS the Lords Spiritual and Temporal and Commons assembled at Westminster, lawfully, fully and freely representing all the estates of the people of this realm, did upon the thirteenth day of February in the year of our Lord one thousand six hundred eighty-eight present unto their Majesties, then called and known by the names and style of William and Mary, Prince and Princess of Orange being present in their proper persons, a certaine declaration in writing made by the said Lords and Commons in the words following, viz.: WHEREAS the late King James the Second, by the assistance of diverse evil counsellors, judges and ministers imployed by him, did endeavour to subvert and extirpate the Protestant religion and the laws and liberties of this kingdome; That the pretended power of suspending of laws or the execution of laws by regal authority without consent of Parlyament is illegal; That the pretended power of dispensingwith laws or the execution of laws by regal authority, as it hath been assumed and exercised of late is illegal; That the commission for erecting the late Court of Commissioners for Ecclesiastical Causes and all other commissions and courts of like nature, are illegal and pernicious; That levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament for longer time, or in other manner then the same is or shall be granted, is illegal; That it is the right of the subjects to petition the King, and all commitments and prosecutions for such petitioning are illegal; That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law; 353

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That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law; That election of members of Parliament ought to be free; 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; That excessive bail ought not to be required nor excessive fines imposed nor cruel and unusual punishments inflicted; That jurors ought to be duly impannelled and returned, and jurors which pass upon men in trials for high treason ought to be freeholders; [Rep., 6 Geo. 4. c. 50. s. 62] That all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void; And that for redress of all grievances, and for the amending, strengthening and preserving of the laws, Parliaments ought to be held frequently.

THE PARLIAMENTARY PAPERS ACT, 1840 3 & 4 Victoria, c. 9 (U.K.) AN ACT to give summary Protection to Persons employed in the Publication of Parliamentary Papers. [Preamble] 1. It shall and may be lawful for any person or persons who now is or are, or hereafter shall be, a defendant or defendants in any civil or criminal proceeding commenced or prosecuted in any manner soever, for or on account or in respect of the publication of any such report, paper, votes, or proceedings by such person or persons, or by his, her, or their servant or servants, by or under the authority of either House of Parliament, to bring before the court in which such proceeding shall have been or shall be so commenced or prosecuted, or before any judge of the same (if one of the superior courts at Westminster), first giving twenty-four hours notice of his intention so to do to the prosecutor or plaintiff in such proceeding, a certificate under the hand of the lord high chancellor of Great Britain, or the lord keeper of the great seal, or of the speaker of the House of Lords, for the time being, or of the clerk of the

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Parliaments, or of the speaker of the House of Commons, or of the clerk of the same house, stating that the report, paper, votes, or proceedings, as the case maybe, in respect whereof such civil or criminal proceedings shall have been commenced or prosecuted, was published by such person or persons, or by his, her, or their servant or servants, by order or under the authority of the House of Lords or of the House of Commons, as the case may be, together with an affidavit verifying such certificate; and such court or judge shall thereupon immediately stay such civil or criminal proceeding; and the same, and every writ or process issued therein, shall be and shall be deemed and taken to be finally put an end to, determined, and superseded by virtue of shall be lawful for the defendant. 2. In case of any civil or criminal proceeding hereafter to be commenced or prosecuted for or on account or in respect of the publication of any copy of such report, paper, votes, or proceedings, it shall be lawful for the defendant or defendants at any stage of the proceedings to lay before the court or judge such report, paper, votes, or proceedings, and such copy, with an affidavit verifying such report, paper, votes, or proceedings, and the correctness of such copy, and the court or judge shall immediately stay such civil or criminal proceedings; and the same, and every writ or process issued therein, shall be and shall be deemed and taken to be finally put an end to, determined, and superseded by virtue of this Act. 3. It shall be lawful in any civil or criminal proceeding to be commenced or prosecuted for printing any extract from or abstract of such report, paper, votes, or proceedings, to give in evidence under the general issue such report, paper, votes, or proceedings, and to show that such extract or abstract was published bona fide and without malice; and if such shall be the opinion of the jury, a verdict of not guilty shall be entered for the defendant or defendants. 4. Provided always, that nothing herein contained shall be deemed or taken, or held or construed, directly or indirectly, by implication or otherwise, to affect the privileges of Parliament in any manner whatsoever.

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CONSTITUTION ACT, 1867 30 & 31 Victoria, c. 3 (U.K.) An Act for the Union of Canada, Nova Scotia, and New Brunswick, and the Government thereof; and for Purposes connected therewith: [29th March 1867] Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom: And whereas such a Union would conduce to the Welfare of the Provinces and promote the Interests of the British Empire: And whereas on the Establishment of the Union by Authority of Parliament it is expedient, not only that the Constitution of the Legislative Authority in the Dominion be provided for, but also that the Nature of the Executive Government therein be declared: And whereas it is expedient that Provision be made for the eventual Admission into the Union of other Parts of British North America: 16. Until the Queen otherwise directs, the Seat of Government of Canada shall be Ottawa. IV LEGISLATIVE POWER 17. There shall be One Parliament for Canada, consisting of the Queen, an Upper House styled the Senate, and the House of Commons. 18. 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. 31. The Place of a Senator shall become vacant in any of the following Cases: (1) If for Two consecutive Sessions of the Parliament he fails to give his Attendance in the Senate:

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(2) If he takes an Oath or makes a Declaration or Acknowledgment of Allegiance, Obedience, or Adherence to a Foreign Power, or does an Act whereby he becomes a Subject or Citizen, or entitled to the Rights or Privileges of a Subject or Citizen, of a Foreign Power: (3) If he is adjudged Bankrupt or Insolvent, or applies for the Benefit of any Law relating to Insolvent Debtors, or becomes a public Defaulter: (4) If he is attainted of Treason or convicted of Felony or of any infamous Crime: (5) If he ceases to be qualified in respect of Property or of Residence; provided, that a Senator shall not be deemed to have ceased to be qualified in respect of Residence by reason only of his residing at the Seat of the Government of Canada while holding an Office under that Government requiring his Presence there. VI. DISTRIBUTION OF LEGISLATIVE POWERS

Powers of the Parliament 91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next herein—after enumerated; that is to say,—

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1A. The Public Debt and Property. 2. The Regulation of Trade and Commerce. 2A. Unemployment insurance. 3. The raising of Money by any Mode or System of Taxation. 4. The borrowing of Money on the Public Credit. 5. Postal Service. 6. The Census and Statistics. 7. Militia, Military and Naval Service, and Defence. 8. The fixing of and providing for the Salaries and Allowances of Civil and other Officers of the Government of Canada. 9. Beacons, Buoys, Lighthouses, and Sable Island. 10. Navigation and Shipping. 11. Quarantine and the Establishment and Maintenance of Marine Hospitals. 12. Sea Coast and Inland Fisheries. 13. Ferries between a Province and any British or Foreign Country or between Two Provinces. 14. Currency and Coinage. 15. Banking, Incorporation of Banks, and the Issue of Paper Money. 16. Savings Banks. 17. Weights and Measures. 18. Bills of Exchange and Promissory Notes. 19. Interest 20. Legal Tender. 21. Bankruptcy and Insolvency 22. Patents of Invention and Discovery 23. Copyrights. 24. Indians, and Lands reserved for the Indians. 25. Naturalization and Aliens. 26. Marriage and Divorce. 27. The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters. 28. The Establishment, Maintenance, and Management of Penitentiaries.

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29. Such Classes of Subjects as are expressly excepted in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces. And any Matter coming within any of the Classes of Subjects enumerated in this Section shall not be deemed to come within the Class of Matters of a local or private Nature comprised in the Enumeration of the Classes of Subjects by this Act Assigned exclusively to the Legislatures of the Provinces. Exclusive Powers of Provincial Legislatures 92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next herein—after enumerated; that is to say,2. Direct Taxation within the Province in order to the raising of a Revenue for Provincial Purposes. 3. The borrowing of Money on the sole Credit of the Province. 4. The Establishment and Tenure of Provincial Offices and the Appointment and Payment of Provincial Officers. 5. The Management and Sale of the Public Lands belonging to the Province and of the Timber and Wood thereon. 6. The Establishment, Maintenance, and Management of Public and Reformatory Prisons in and for the Province. 7. The Establishment, Maintenance, and Management of Hospitals, Asylums, Charities, and Eleemosynary Institutions in and for the Province, other than Marine Hospitals. 8. Municipal Institutions in the Province. 9. Shop, Saloon, Tavern, Auctioneer, and other Licences in order to the raising of a Revenue for Provincial, Local, or Municipal Purposes. 10. Local Works and Undertakings other than such as are of the following Classes:— a. Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province: b. Lines of Steam Ships between the Province and any British or Foreign Country: c. Such Works as, although wholly situate within the Province, are before or after their Execution declared by the Parliament

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of Canada to be for the general Advantage of Canada or for the Advantage of Two or more of the Provinces. 11. The Incorporation of Companies with Provincial Objects. 12. The Solemnization of Marriage in the Province. 13. Property and Civil Rights in the Province. 14. The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts. 15. The Imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province made in relation to any Matter coming within any of the Classes of Subjects enumerated in this Section. 16. Generally all Matters of a merely local or private Nature in the Province. 129. Except as otherwise provided by this Act, all Laws in force in Canada, Nova Scotia, or New Brunswick at the Union, and all Courts of Civil and Criminal Jurisdiction, and all legal Commissions, Powers, and Authorities, and all Officers, Judicial, Administrative, and Ministerial, existing therein at the Union, shall continue in Ontario, Quebec, Nova Scotia, and New Brunswick respectively, as if the Union had not been made; subject nevertheless (except with respect to such as are enacted by or exist under Acts of the Parliament of Great Britain or of the Parliament of the United Kingdom of Great Britain and Ireland,) to be repealed, abolished, or altered by the Parliament of Canada, or by the Legislature of the respective Province, according to the Authority of the Parliament or of that Legislature under this Act.

CONSTITUTION ACT, 1982 Schedule B to Canada Act 1982 (U.K.) Guarantee of Rights and Freedoms 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

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Fundamental Freedoms

2.

Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (c)freedom of peaceful assembly; and (d) freedom of association. Democratic Rights 3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein. 5. There shall be a sitting of Parliament and of each legislature at least once every twelve months. Legal Rights

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. 8. Everyone has the right to be secure against unreasonable search or seizure. 9.

Everyone has the right not to be arbitrarily detained or imprisoned. 10. Everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefor; (b)to retain and instruct counsel without delay and to be informed of that right; and (c)to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful. 11. Any person charged with an offence has the right (a)to be informed without unreasonable delay of the specific offence; (b)to be tried within a reasonable time; (c) not to be compelled to be a witness in proceedings against that person in respect of the offence;

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(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; (e) not to be denied reasonable bail without just cause; (f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment; (g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations; (h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and (i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment. 12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. 13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence. Equality Rights 15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. Enforcement 24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

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(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. General 25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including (a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and (b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.' Application of Charter 32. (1) This Charter applies (a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and (b)to the legislature and government of each province in respect of all matters within the authority of the legislature of each province. (2) Notwithstanding subsection (1), section 15 shall not have effect until three years after this section comes into force. General 52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of no force or effect. (2) The Constitution of Canada includes (a) the Canada Act 1982, including this Act; Paragraph 25(b) was repealed and re-enacted by the Constitution Amendment Proclamation, 1983. See SI/84-102. Paragraph 25(b) as originally enacted read as follows: "(b) any rights or freedoms that may be acquired by the aboriginal peoples of Canada by way of land claims settlement."

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(b)the Acts and Orders referred to in the schedule; and (c)any amendment to any Act or order referred to in paragraph (a) or (b). (3) Amendments to the Constitution of Canada shall be made only in accordance with the authority contained in the Constitution of Canada.

PARLIAMENT OF CANADA ACT R.S.C., 1985, c. P-1 Definition

4. The Senate and the House of Commons, respectively, and the members thereof hold, enjoy and exercise (a) such 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 (b)such 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. R.S., c. S-8, s. 4. 5. The 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 ofjudicially. R.S., c. S-8, s. 5.

6. On any inquiry concerning the privileges, immunities and powers of the Senate and the House of Commons or of any member of either House, any copy of the journals of either House, printed or purported to be printed by order thereof, shall be admitted as evidence of the journals by all courts, justices and others, without proof that the copy was printed by order of either House. R.S., c. S-8, s. 6.

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Publication of Proceedings 7. (1) Where any person is a defendant in any civil or criminal proceedings that are commenced or prosecuted in a court in any manner for, on account of or in respect of the publication of any report, paper, votes or proceedings, by that person or the servant of that person, by or under the authority of the Senate or the House of Commons, that person may bring before the court or any judge thereof, after twenty-four hours notice of intention to do so given in accordance with subsection (2), a certificate (a)given under the hand of the Speaker or the Clerk of the Senate or the House of Commons, and (b) stating that the report, paper, votes or proceedings were published by that person or servant, by order or under the authority of the Senate or the House of Commons, together with an affidavit verifying the certificate. (2)The notice of intention referred to in subsection (1) shall be given to the plaintiff or prosecutor in the civil or criminal proceedings or to the attorney or solicitor of the plaintiff or prosecutor. (3) On the bringing of a certificate before a court or judge in accordance with subsection (1), the court or judge shall immediately stay the civil or criminal proceedings, and those proceedings and every writ or process issued therein shall be deemed to be finally determined and superseded by virtue of this Act. R.S., c. S-8, s. 7. 8. (1) Where any civil or criminal proceedings are commenced or prosecuted in a court for, on account of or in respect of the publication of any copy of a report, paper, votes or proceedings referred to in subsection 7(1), the defendant, at any stage of the proceedings, may bring before the court, or any judge thereof, the report, paper, votes or proceedings and the copy, together with an affidavit verifying the report, paper, votes or proceedings and the correctness of the copy. (2) On the bringing before a court or any judge thereof of any report, paper, votes or proceedings and a copy thereof with affidavit in accordance with subsection (1), the court or judge shall immediately stay the civil or criminal proceedings, and those proceedings and every writ or process issued therein shall be deemed to be finally determined and superseded by virtue of this Act. R.S., c. S-8, s. 8. 9. In any civil or criminal proceedings commenced or prosecuted for printing an extract from or abstract of any report, paper, votes or proceedings referred to in subsection 7(1), the report, paper, votes or

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proceedings may be given in evidence and it may be shown that the extract or abstract was published in good faith and without malice and, if such is the opinion of the jury, a verdict of not guilty shall be entered for the defendant. R.S., c. S-8, s. 9. Examination of Witnesses 10. (1) The Senate or the House of Commons may administer an oath to any witness examined at the Bar of the Senate or the House. (2)The Senate or the House of Commons may order witnesses to be examined on oath before any committee. (3)Any committee of the Senate or the House of Commons may administer an oath to any witness examined before the committee. R.S., c. S-8, ss. 25 to 27. 11. (1) Where any witness to be examined under this Part conscientiously objects to take an oath, the witness may make a solemn affirmation and declaration. (2) Any solemn affirmation and declaration made under subsection (1) has the same force and effect, and entails the same consequences, as an oath taken in the usual form. R.S., c. S-8, ss. 28, 29. 12. Any person examined under this Part who willfully gives false evidence is liable to such punishment as may be imposed for perjury. R.S., c. S-8, s. 31. Internal Administration 19.1 (1) In this section and sections 19.2 to 19.9, "Committee"' means the Standing Senate Committee on Internal Economy, Budgets and Administration established by the Senate under its rules. (2) During a period of prorogation or dissolution of Parliament and until the members of a successor Committee are appointed by the Senate, the Committee continues to exist for the purposes of this Act and, subject to subsection (3), every member of the Committee, while still a senator, remains a member of the Committee as if there had been no prorogation or dissolution. (3) The Leader of the Government in the Senate, or the nominee of the Leader, and the Leader of the Opposition in the Senate, or the nominee of the Leader, may, in accordance with the rules of the Senate, change the membership of the Committee from time to time, including during periods of prorogation or dissolution.

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(4) In exercising its functions and powers under this Act, the Committee is subject to the rules, direction and control of the Senate. (5)Where the Chairman of the Committee deems that there is an emergency, the Committee's Sub-committee on Agenda and Procedure may exercise any power of the Committee under this Act. (6) The Chairman of the Committee shall report to the Committee any decision made under subsection (5) at the meeting of the Committee immediately following the decision. 1991, c. 20, s.1. Opinions 19.6 (1) The Committee has the exclusive authority to determine whether any previous, current or proposed use by a senator of any funds, goods, services or premises made available to that senator for the carrying out of parliamentary functions is or was proper, given the discharge of the parliamentary functions of senators, including whether any such use is or was proper having regard to the intent and purpose of the regulations made under subsection 19.5(1). (2) Any senator may apply to the Committee for an opinion with respect to any use by that senator of any funds, goods, services or premises referred to in subsection (1). 1991, c. 20, s.1. 19.7 (1) During any investigation by a peace officer in relation to the use by a senator of funds, goods, services or premises referred to in subsection 19.6(1), the peace officer may apply to the Committee for, or the Committee may, on its own initiative, provide the peace officer with, an opinion concerning the propriety of such use. (2)Where an opinion is provided to a peace officer pursuant to subsection (1) and where an application for a process is made to a judge, the judge shall be provided with the opinion and shall consider it in determining whether to issue the process. (3) For the purposes of this section, "process" means (a) an authorization to intercept a private communication under section 185, (b)an order for a special warrant under section 462.32, (c) an order for a search warrant under section 487, (d) a restraint order under section 462.33,

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(e) the laying of an information under section 504 or 505, (f) a summons or an arrest warrant under section 507, or (g) the confirmation of an appearance notice, promise to appear or recognizance under section 508 of the Criminal Code. (4) The issuance of a process referred to in paragraphs (3)(c), (e), (f) and (g) that is based on the use by a senator of any funds, goods, services or premises made available to that senator for the carrying out of parliamentary functions shall be authorized by a judge of a provincial court within the meaning of section 2 of the Criminal Code. 1991, c. 20, s.1. 24. (1) Any person who is, by this Division, declared ineligible to be a member of the House of Commons or incapable of sitting or voting therein and who nevertheless sits or votes in the House shall forfeit the sum of two thousand dollars for each day on which the person so sits or votes. (2) A sum forfeited under subsection (1) may be recovered by any person who sues for it, by action in any form allowed by law in the province in which the action is brought, in any court having jurisdiction. R.S., c. H-9, s. 5. Resignation of Members 25. (1) Any person holding a seat in the House of Commons may resign the seat (a) by giving, in that person's place in the House, notice of intention to resign, in which case the Speaker of the House shall, immediately after entry of that notice by the Clerk of the House on the journals thereof, address a warrant under the hand and seal of the Speaker to the Chief Electoral Officer for the issue of a writ for the election of a new member in the place of that person; or (b)by addressing and causing to be delivered to the Speaker of the House, either during a session of Parliament or in the interval between two sessions thereof, a declaration of intention to resign made in writing under the hand and seal of that person before two witnesses, in which case the Speaker shall, on receiving the declaration, forthwith address a warrant under the hand and seal of the Speaker to the Chief Electoral Officer for the issue of a writ for the election of a new member in the place of that person.

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(2) An entry of the declaration delivered under paragraph (1)(b) shall be thereafter made in the journals of the House of Commons. R.S., c. II-9, s. 6. 26. (1) If any person holding a seat in the House of Commons wishes to resign the seat in the interval between two sessions of Parliament and if there is then no Speaker of the House, the Speaker is absent from Canada or that person is the Speaker, the person may address and cause to be delivered to any two members of the House a declaration of intention to resign described in section 25. (2) On receiving the declaration pursuant to subsection (1), the two members shall forthwith address their warrant, under their hands and seals, to the Chief Electoral Officer for the issue of a writ for the election of a new member in the place of the person making that declaration. R.S., c. H-9, s. 7. 27. (1) Any person holding a seat in the House of Commons who tenders a resignation of the seat in any manner provided in section 25 or 26 is deemed to have vacated the seat and ceases to be a member of the House. (2) A person holding a seat in the House of Commons shall not tender a resignation of the seat while the election of that person as a member of the House is lawfully contested or until after the expiration of the time during which the election may by law be contested on grounds other than corruption or bribery. R.S., c. H-9, ss. 8, 9.

BIBLIOGRAPHY

ABRAHAM, L.A. and S.C. HAWTREY A Parliamentary Dictionary, 2nd ed. London: Butterworths, 1964. ANSON, Sir William R. The Law and Custom of the Constitution, 4th ed. Oxford: Clarendon Press, 1911. BEAUCHESNE, Arthur. Rules and Forms of the House of Commons of Canada, 3rd ed. Toronto: Canada Law Book Co., 1943. BEAUCHESNE, Arthur. Rules and Forms of the House of Commons of Canada, 4th ed. Toronto: The Carswell Company Ltd., 1958. BEAUCHESNE, Arthur. Rules and Forms of the House of Commons of Canada, 5th ed., by A. Fraser, G.A. Birch, W.F. Dawson, Toronto: The Carswell Company Ltd., 1978. Beauchesne's Rules & Forms of the House of Commons, 6th ed., by Alistair Fraser, W.F. Dawson and John A. Holtby, Toronto: The Carswell Company Ltd., 1989. BERNHARDT, Peter The Contempt Power of the Canadian House of Commons — the Case for Reform, LLM Thesis, University of Ottawa, 1992. BLACKSTONE, William. Commentaires on the Laws of England, 8th ed. Oxford: Clarendon Press, 1778. BOURINOT, John George. Parliamentary Procedure and Practice, 1st ed. Montreal: Dawson Brothers, 1884. BOURINOT, John George. Parliamentary Procedure and Practice, 4th ed. edited by T.B. Flint. Toronto: Canada Law Book Co., 1916. BRADSHAW, Kenneth and PRING, David. Parliament and Congress, 1982, 2nd ed. Quartel, London. CAMPBELL, Enid. Parliamentary Privilege in Australia Melbourne, Melbourne University Press, 1966.

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CAMPION, Lord. An Introduction to the Procedure of the House of Commons, 3rd ed. London: Macmillan & Co., 1958. CHEVRETTE, F. and H. MARX. Droit constitutionnel, notes et jurisprudence. Les Presses de l'Universite de Montreal, 1982. CONKLIN, William E. "Pickin and Its Applicability to Canada." (1975), 25 U.T.L.J. 193. COURAGE, John. "Parliamentary Privilege in Newfoundland: The Strange Case of Kielley v. Carson," IV (3): 10-12. CUSHING, Luther Stearns. Elements of the Law and Practice of Legislative Assemblies in the United States of America. Boston: Little, Brown and Co., 1856. DAVIDSON, Diane. Parliamentary Privilege and Freedom of the Press, 1993, XVI (2): 10-12. DE SMITH, S.A. "Parliamentary Privilege and the Bill ofRights." (1958), 21 Mod. L. Rev. 465. Gatley on Libel and Slander, 6th ed. London: Sweet and Maxwell, 1967. Halsbury's Laws of England, 3rd and 4th eds. London: Butterworths. HATSELL, John. Precedents of Proceedings in the House of Commons, 3rd ed. Vol. 1. London: T. Payne, 1796. HEARD, Andrew. The Expulsion and Disqualification of Legislators: Parliamentary Privilege and the Charter of Rights, 1995, 18 Dalhousie, L.J. 380. HEARD, Andrew. The Supreme Court Entrenches Parliamentary Privilege Out of the Charter's Reach, Donahue v. CBC, 1993, 4 Constitutional Forum 102. HOGG, Peter W. Constitutional Law of Canada, 1992, Vol. 1, 3 ed. (Supplemented), Scarborough, Ontario, Carswell, 1992 (loose-leaf). JENNINGS, Sir Ivor. Parliament, 2nd ed. Cambridge: Cambridge University Press, 1969. KEITH, Arthur Berriedale. Responsible Government in the Dominions, 2nd ed., 2 Vols. Oxford: Clarendon Press, 1928.

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O'BRIEN, Gary. Pre-Confederation Parliamentary Procedure: The Evolution of Legislative Practice in the Lower House of Central Canada, 1792-1866, PhD Thesis, Carleton University, 1988. ODGERS, J.R. Australian Senate Practice, 5th ed. Canberra: Australian Gov. Pub. Ser., 1976. OLLIVIER, Maurice. Problems of Canadian Sovereignty, 1945, Canada Law Book, Toronto. OSWALD, James Francis. Contempt of Court, Committal and Attachment and Arrest Upon Civil Process in the Supreme Court of Judicature. 3rd ed. Edited by A.C. Forster Boulton, Toronto: Canada Law Book Co., 1911. PACHAURI, P S. The Law ofPctrliamentary Privileges in the U.K. and in India. Dobbs Ferry: Oceans Publications Inc., 1971. PEARCE, D.C. Contempt of Parliament— Instrument of Politics or Law? 1968-69, 3 Fed. Law Rev., Australia, 241. PELLETIER, Maurice. Privilege in the Canadian Parliament, 1973, 54 Parliamentarian 43. PIGEON, L.-P Are the Provincial Legislatures Parliaments? 1943, 21 Can. Bar. Rev. 826. REDLICH, Josef. The Procedure of the House of Commons. London: Archibald Constable & Co. Ltd., 1903. RUSSEL, Peter. The Political Purposes of the Canadian Charter of Rights and Freedoms, 1983, 61 C.B.R. 30. SMILEY, Donald. The Canadian Charter of Rights and Freedoms, 1981, Toronto, Ontario Economic Council. SOPINKA, John and Sidney N. LEDERMAN. The Law of Evidence in Civil Cases. Toronto: Butterworths & Co. (Can.) Ltd., 1974. SOPINKA, John and Sidney N. LEDERMAN & Alan W BRYANT, The Law of Evidence in Canada. Toronto: Butterworths & Co. (Can.) Ltd., 1992.

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TABLE OF CASES Abko Medical Laboratories Ltd. and The Queen, Re (1977), 15 O.R. (2d) 779,77 D.L.R. (3d) 295, 35 C.C.C. (2d) 65 (H.C.)

110 88, 102

Acte v. McTeer (1977), C.L.R.B. 447 Adams v. Fisher (1914), 110 L.T. 537

112

A.G. Can. v. Bradlaugh (1885), 14 Q.B.D. 667

297

A.G. Can. v. Reader's Digest Assn., [1961] S.C.R. 775, 30 D.L.R. (2d) 296, [1961] C.T.C. 530, 61 D.T.C. 1273

139

A.G. Ceylon v. de Livera, [1963] A.C. 103, [1962] 3 All E.R. 1066 (PC.)

82-83, 86

Allighan's Case (1946-47) H.C. 138 (U.K.)

98

Anderson v. Dunn (1821), 6 Wheaton 204

200

Anger v. Borowski, [1971] 3 W.W.R. 434, (sub nom. Re Borowski) 19 D.L.R. (3d) 537, 3 C.C.C. (2d) 402 (Man. Q.B.)

155

Anglo-French Co-op. Soc., Re (1880), 14 Ch. D. 533 Ashby v. White (1703), 2 Ld. Raym. 938, 92 E.R. 126 (H.L )

8

277, 278, 279, 280, 284, 288, 301

Attorney General of Canada, the Senate, et al. u. Southam Inc and 320, 332 Charles Russell (1990) 3 FC 465 Authority of Parliament in Relation to Upper House, [1980] 1 S.C.R. 54, (sub nom. Reference Re Legislative Authority of Parliament to Alter or Replace the Senate) 102 D.L R. (3d) 1, (sub nom. Re British North America Act and the Federal Senate) 30 N.R. 271

302

Barnard v. Walkem (1880), 1 B.C.R. Pt. 1, 120 (CA)

189

Barnardiston v. Soame (1676), 6 State Tr. 1063, (sub nom. Soame v. Barnardiston) 1 Freem. KB. 430, 89 E.R. 321, aff'd 275, 277 6 State Tr. 1117(H.L.) 377

378

Parliamentary Privilege in Canada

Barton u. Taylor (1886) 11 App. Cas. 197

3, 202, 207

Beach v. Freeson, [1972] 1 Q.B. 14, [1971] 2 All E.R. 854

108, 110

Beaumont u. Barrett (1836), 1 Moo. P.C. 59

201, 287, 339

Benyon v. Evelyn (1664), 0. Bridg. 324, 124 E.R. 614, 48 Rev. Rep. 326

274, 275, 279

Berthiaume v. Du Tremblay, [1955] Que. P.R. 328

302

Borowski, Re. See Anger v. Borowski Braddock v. Tillotson's Newspapers Ltd., [1950] K.B. 47, [1949] 2 All E.R. 306 (C.A.) Bradlaugh u. Erskine (1883) 47 T.L.R. 618

140

143, 294, 326-27, 344, 348, 350

Bradlaugh u. Gossett (1884), 12 Q.B.D. 271 .. . 116, 122, 128, 143, 170, 181, 183, 184, 185, 188, 257, 268, 286, 293, 294, 295,296,297, 317,321,327,343,348,350 Brass Crosby's Case (1771), 3 Wils 188, 95 E.R. 1005

280

British North America Act and the Federal Senate, Re. See Authority of Parliament in Relation to Upper House Br. Rys. Bd. v. Pickin, [1974] A.C. 765, [1974] 1 All E.R. 609, rev'g [1973] 1 Q.B. 219,[1972] 3 All E.R. 923 (H.L )

186

Burdett v. Abbot (1811), 14 East 1 181, 197, 200, 207, 208, 209, 210, 213, 214, 276, 277, 280-81, 286, 299, 321, 323, 326, 335, 336, 340, 346, 347, 348, 350 Burdett v. Abbot; Burdett v. Colman (1817), 5 Dow 165, 3 E.R. 1289

280, 281

Burdett v. Colman. See Burdett v. Abbot (1817) Chamberlist v. Collins (1962), 39 W.W.R. 65, 34 D.L.R. (2d) 414 (Yukon CA) Chatterton v. Secretary of State for India in Council, [1895] 2 Q.B. 189 (C.A) Chenard & Co. v. Arrisol, [1949] A.C. 127 (PC.)

6, 206 89 2

379

Table of Cases

Chubb v. Salomons (1852), 3 Car & Kir. 75 ... 129, 130, 140, 144, 147 Church of Scientology of California v. Johnson-Smith, [1972] 139,141, 143 1 Q.B. 522, [1972] 1 All E.R. 378 Clark and A.G. Can, Re (1977), 17 O.R. (2d) 593, 81 D.L.R. 9, 48, 117, 274, 289-91, (3d) 33, 34 C.P.R. (2d) 91 (H.0 ) 300, 301, 348 Club de la Garnison de Quebec v. Lavergne, Le (1918), 37 R.J.Q. 37, aff'g 31 R.J.Q. 349 Coffin v. Coffin (1808), 4 Mass. 1

31, 35, 36

84, 85, 96, 97, 104

Comm. royale d'enquete v. Boulanger, [1962] Que. Q.B. 251

122, 205, 298

Controverted Election for County of Argenteuil-Bellingham v. Abbott (1858), 2 L.C.J. 13 (extra) Cook v. Alexander, [1974] Q.B. 279, [1973] 3 All E.R. 1037 (CA)

29

52,57,58,134

Cotte, ex parte. See ex parte Duvernay 153

Cox v. Prior (1899), 18 Ont. P.R. 492

154, 156

Cuvillier v. Munro (1848), 4 L.C.R. 146

D. v. National Society for the Prevention of Cruelty to Children, 110, 112 [1976] 3 W.L.R. 124, [1976] 2 All E.R. 993 Dansereau, ex parte (1875), 19 L.C.J. 210

204, 209, 214

Davison v. Duncan (1857), 7 El. & BI. 219, 119 E.R. 1233 Dawkins v. Lord Rokeby (1873), L.R. 8 Q.B. 255; aff'd. (1875), L.R. 7 H.L. 774

47, 48, 118 148

Dickson v. Earl of Wilton (1859), 1 F. & F. 419

97, 108, 110

Dill v. Murphy (1864), 1 Moo. P.C.C. N.S. 487, 15 E.R. 784 (PC.)

202

Dillon v. Balfour (1887), 20 L.R. Ir. 600 Dingle v. Associated Newspapers, [1960] 2 Q.B. 405, [1960] 1 All E.R. 294n, varied [1961] 2 Q.B. 162, [1961]

29, 49

380

Parliamentary Privilege in Canada

1 All E.R. 897, variation aff'd [1964] A.C. 371, [1962] 2 All E.R. 737 (H.L ) 73, 133, 139, 140, 141 Dowson v. Govt. of Can. See Dowson v. The Queen Dowson v. The Queen (1981), 124 D.L.R. (3d) 260, 37 N.R. 127 (sub nom. Dowson v. Govt. of Can.) (Fed. C.A.)

88

Doyle v. Falconer (1866), L.R. 1 P.C. 328, 4 Moo. PC.C.N.S. 203, 16 E.R. 293 (PC.) 3, 201, 202, 203, 206, 209, 324 Drewery v. Century City Dev. Ltd. (No. 1) (1974), 6 O.R. (2d) 288, 52 D.L.R. (3d) 512 (H.0 )

186

Duvernay, ex parte; ex parte Cotte (1875), 19 L.C.J. 248, 204, 213, 214 6 R.L.O.S. 582 (CA) Eliot's (Sir John) Case (1629), 5 Charles 1, 3 State Tr. 293 ... 79, 115, 123 97, 116, 148

Ex parte Wason (1869) L.R. 4 Q.B. 573 Fenton v. Hampton (1858), 11 Moo. P.C.C. 347, 14 E.R. 727 (P.C.) Ferrers' Case (1543), 0. Bridg. App. 625, 124 E.R. 782

202 196, 197, 274, 279, 280

Fielding v. Thomas, [1896] A.C. 600 3, 4, 5, 7, 34, 203, 205, 206, 209, 213, 233, 294, 325, 333, 335, 348 Forbes v. Samuel, [1913] 3 KB. 706

37, 129, 130, 144, 145, 147, 149, 189

Gabias v. L'Assemblee legislative de la province de Quebec, C.S. District de Quebec. No. 138-195 May 3, 1965 294, 348, 350 (not reported) Gallant v. R., [1949] 2 D.L.R. 425, 93 C.C.C. 237, 23 M.PR.48 (PE.I. S.C.)

186

Gauthier et al. o. Hon. John A. Fraser PC., M.P. LLB, Speaker of the House of Commons, Ontario Court of Justice, General Division, Nov. 30, 1994, Ottawa, File No. 66545/92 (not reported)

338

381

Table of Cases

Gipps v. McElhone (1881), 2 N.S.W. 18 (Aust.)

104, 109

Goffin v. Donnelly (1880-81), L.R. 7 Q.B. 307

148, 236 183, 185, 207, 326, 346, 348

Harnett v. Crick, [1908] A.C. 470 (PC.)

108

Harrison v. Bush (1856), 5 E. & B. 344, 119 E.R. 509 Harvey v. Attorney General for New Brunswick et al.: Attorney General of Canada et al. Interveners (1996) 137 D.L.R. (4th) 142

325, 331

Haxey's Case (1396-97). See May, 19th ed., p. 74

27-28, 32 153, 157

Henderson v. Dickson (1860), 19 U.C. Q.B. 592 Herbert, ex parte. See R. v. Graham-Campbell

3

Hill v. Weldon (1845), 3 Kerr. 1, 5 N.B.R. 1 (CA) Hopewell v. Kennedy (1904), 9 O.L.R. 43 (CA)

31

Houghton u. Plimsoll. The Times, April 2, 1874

69

House of Commons (Clergy Disqualification) Act, 1801, Re. See Re MacManaway

188

House of Commons v. Canada Labour Relations Board and Public Service Alliance (1986), 2 F.C. 372

215

Howard u. Gosset (1847) 10 Q.B. 411, 116 E.R. 158, reversed at (1845) 10 Q.B. 359.

209, 214, 272, 283

Hutchinson v. Proxmire (1978), 443 U.S. 111 (U.S.S.C.)

88, 102

Ian Smith v. Hon. D.N.E. Mutasa and Hon. E.J.M. Zvobgo, Supreme Court of Zimbabwe (1990) 1 L.R.C. (Court) 87 Zimbabwe.

295

Irwin v. the King (1926) EX CR 127

186

Jackman and Stollery, Re (1980), 28 O.R. (2d) 641, 111 D.L.R. (3d) 700, 15 C.P.C. 65, leave to appeal denied 30 O.R. (2d) 534, 116 D.L.R. (3d) 325 (H.C.)

190

Jay v. Topham (1689), 12 State Tr. 821

96, 190, 215, 272, 276-77

Jones v. Bennett, [1969] S.C.R. 277, 66 W.W.R. 419, 2 D.LR. (3d) 291

93

382

Parliamentary Privilege in Canada

Kelly v. O'Brien, [1942] O.R. 691, [1943] 1 D.L.R. 725, 79 C.C.C. 198 (C.A)

131

Kelso v. The Queen, [1981] 1 S.C.R. 199, 120 D.LR. (3d) 1, 35 N.R. 19

131

Kielley u. Carson (1842), 4 Moo. P.C.C. 63, 13 E.R. 225 (PC.) 2, 3, 6, 15, 16, 25, 32, 190, 197, 198, 201-02, 203, 204, 205, 206, 207, 209, 272, 287, 288, 294, 323, 324, 329, 330, 333, 336, 339, 340 Kilbourn u. Thompson (1880), 103 U.S. 168 (S.0 U S)

27, 84, 200

Ximmitt v. R. (1896), 5 Ex. C.R. 130

215

Labrador Company and The Queen [1893] A.C. 104 (PC)

186

Lake v. King (1667), 1 Saund. 120, 85 E.R. 137 . . . . 46-47, 65, 72, 99, 104, 128, 129, 233 Lamb v. McLeod (No. 1), [1932] 1 W.W.R. 206 (Sask CA)

190

Landers v. Woodworth (1878), 2 S.C.R. 158 26, 36, 180, 204-05, 210, 233, 294, 296, 297, 300, 323, 324, 325, 327, 336, 343, 345, 348, 350 Langtry v. Dumoulin (1880), 7 O.R. 499, aff'd 7 O.R. 644, which was affd 13 S.C.R. 258. Leave to appeal to the Privy Council refused, C.R. [14] A.C. 240, 57 L.T. 317 Lavoie, ex parte (1855), 5 Low. Can. R. 99

134

202-03, 209, 213

Lee v. Bude & Torrington Ry. Co. (1871), L.R. 6 C.P 576

186

Ludlow Charities Re (1845), 2 My. & Cr 316 45 Rev Rep. 68

156

MacLean v. A.G. Nova Scotia (1987) 35 S.L.R. (4th) 306

325

Mahon v. Ermatinger (1845), 1 U.C. Q.B. 334

156

Mangena v. Edward Lloyd Ltd. (1908), 98 L.T. 640 (C.A.) Mangena v. Wright, [1909] 2 K.B. 958

68, 69, 70, 71, 72, 73, 75 58, 69, 70, 73

Table of Cases

383

McCarthy v. Kennedy, The Times, March 4, 1905

138

McLeod v. Noble (1897), 24 O.A.R. 459, 28 O.R. 528

190

McNab v. Bidwell and Baldwin (1830) 200, 208, 215, 287, 288, 326, 346, 348 Draper 144 (C.A.) 156

Meyers v. Harrison (1853), 4 Gr. 148 Monk, ex parte (1834), Stuart's Reports U.C. KB. 120

208, 213, 215, 287, 288

Moriarty v. Kavanagh (1861), 4 Nfld. L.R. 591

154

Namoi Shire Council v. A.G. N.S.W., [1980] 2 N.S.W.L.R. 639

186

New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly) (1993) 1 S.C.R. 319

207, 272, 293, 306

N.W.T. Public Service Assn. v. Commr. of N.W.T., [1980] 1 W.W.R. 385, 107 D.L.R. (3d) 458 (N.W.T. C.A)

103, 127, 302

O'Shea u. O'Shea & Parnell (1890), 15 P.D. 59, 17 Cox. C.C. 107 (CA)

157

Ouellet (No. 1), Re (1976), 67 D.L.R. (3d) 73, (sub nom. Re Ouellet; R. v. Atlantic Sugar Refiners Co.) 28 C.C.C. (2d) 338, 34 C.R.N.S. 234, aff'd 72 D.L.R. (3d) 95, (sub nom. Re Ouellet (Nos. 1 and 2) 32 C.C.C. (2d) 149 36 C.R.N.S 296 (Que C.A) 8, 31, 38, 42, 43, 90, 92-94, 102, 158, 160, 164, 299 Parlett v. Robinson B.C. Court of Appeal July 22, 1986, Vancouver Registry No. CA 003879 (not reported)

108, 112

Parliamentary Privilege Act 1770, Re, [1958] A.C. 331, 153-54, 231, 272, 289 [1958] 2 All E.R. 329 (PC) Payson v. Hubert (1904), 34 S.C.R. 400 Pelletier v. Howard (1940), 43 Que. P.R. 258 Pepper v. Hart (1993) 1 ALL ER. 42 (HL)

177, 210, 259, 300, 314, 318, 322, 346, 348 153, 161 136, 149, 271, 286, 298, 300

384

Parliamentary Privilege in Canada

Pickin v. British Railway Board (1974) A.C. 765 (H.L )

186

Plunkett u. Corbett (1804), 5 Esp. 136

140

Police v. Walter (1976), 1 N.Z.L.R. 355

176

Powell v. McCormack (1969), U.S.S.C. 23 L. Ed. (2d) 491

27, 189

Proprietors of Edinburgh Dalheith RY. Co. v. John Wanchope (1835), 8 Cl. Fin. 710, 8 E.R. 279

186

Rail & Water Terminal of Montreal Ltd. v. Compagnie de Gestion de Matane Inc., [1976] C.S. 102

47, 302

Rees v. A.G. (1869), 2 Ch. 386

155

Reference Re Agricultural Products Marketing Act, [1978] 2 S.C.R. 1198, 84 D.L.R. (3d) 257, 19 N.R. 361

186

Reference Re Amendment of the Constitution of Canada (Nos. 1, 2 and 3) (1981), 149, 217, 302, 316, 333 125 D.L.R. (3d) 1 (S.C.C.) Reference Re Anti-lnflation Act, [1976] 2 S.C.R. 373, 68 D.L.R. (3d) 452, 9 N.R. 541 Reference Re certain language rights under s. 23, Manitoba Act, 1870 vs.133 of the Constitution Act (1985) 1 S.C.R. 721

134, 135, 137, 143

186, 295

Reference Re Legislative Authority of Parliament to Alter or Replace the Senate. See Authority of Parliament in Relation to Upper House Reference Re Legislative Privilege (1978), 18 O.R. (2d) 529, 83 D.L.R. (3d) 161, 39 C.C.C. (2d) 226 (C.A.)

33,110

R. ex ref. Stubbs v. Steinkopf (1964), 47 D.L.R. (2d) 105, varied 50 W.W.R. 643 (Man. CA.) R. ex rel. Tolfree v. Clark, [1943] O.R. 501 (C.A.)

190 189, 190

R. v. (Lord) Abingdon (1794), 1 Esp. 226, 170 E.R. 337, 5 Rev. Rep. 733 . . . 42, 44, 46, 49, 51, 54, 58, 91, 107, 118, 119, 300 R. v. Arseneau, [1979] 2 S.C.R. 136, 25 N.B.R. (2d) 390, 51 A.P.R. 390, 95 D.L.R. (3d) 1, 26 N.R. 226, 45 C.C.C. (2d) 321, afrg 17 N.B.R. (2d) 292, 23 A.P.R. 292, 36 C.C.C. (2d) 65

84

385

Table of Cases

R. v. Atlantic Sugar Refiners Co. See Re Ouellet (No. 1) R. u. Bernier, Ontario Court of Appeal. March 31, 1994 (file #C16623) (not reported) R. v. Bruneau, [1964] 1 O.R. 263, [1964] 1 C.C.C. 97, 42 C.R. 93 (CA) R. v. Bunting (1885), 7 O.R. 524 (C.A.)

120, 123, 257 83, 84, 102, 238

11, 82,84,94,96,97,119, 122, 205, 288, 301, 323

R. v. Charron, unreported judgment, May 2, 1962 (Ont. G.S.R)

122, 148

R. v. Connolly (1891), 22 O.R. 220 (CA) ... 123, 142, 144, 146, 149, 243 R. v. Cowlishaw, unreported judgment, August 25, 1964 (Ont. Mag. Ct.)

123

R. v. Creevey (1813), 1 M. & S. 273, 105 E.R. 102, 43, 44, 46, 47, 49, 51, 54, 14 Rev. Rep. 427 58, 91, 107, 118, 119 R. v. Culhane, unreported judgment, April 19, 1971 (Prov. Ct.)

123 79

R. v. Dangerfield (1688), 3 Mod. 68 F

R. v. Gabriel Fontaine, Quebec Court of Appeal, March 24, 1995, No. 200-10-000 49-929 (not reported); Application for leave to appeal dismissed by 121, 123, 257 Supreme Court of Canada, Sept. 7, 1995 R. v. Gamble and Boulton (1852), 9 U.C.R. 546

154, 155, 156, 157, 161

R. v. Giftcraft Ltd. (1984) 13 C.C.C. (3D) 192

137

R. u. Glibbery, [1963] 1 O.R. 232, 36 D.L.R. (2d) 548, [1963] 1 C.C.C. 101, 38 C.R. 25 (CA)

171

R. v. Graham-Campbell, ex parte Herbert, [1935] 1 KB 594 R. v. Irwin, [1926] Ex. C.R. 127

165, 183, 257, 293, 294, 301 186

R. v. McGavin Bakeries Ltd. (No. 4) (1951), 2 W.W.R. 20, 132, 133, 138, 146, 147 12 C.R. 139 (Alta. S.C.)

386

Parliamentary Priuilege in Canada

R. v. McLean (1882), 8 S.C.R. 210

215

R. v. Murphy (1986) 64 A.L.R. 498 (Hunt J.)

26, 143

R. v. Paty (1704), 2 Ld. Raym. 1105, 91 E.R. 431

197, 278-80, 284

R. v. Pitt (1762), 3 Burr. 1335, 96 E.R. 214

179, 207, 279

R. v. Richard ex parte Fitzpatrick Browne (1955) 92 C.L.R. 157 Australia and 171 (P.0 ) R. u. Rule, [1937] 2 K.B. 375

335

97, 108, 112, 113, 122

R. u. Salituro (1990) 56 C.C.C. (3D) 350

136

R. u. Toronto Sun Publishing Ltd. (1979), 24 O.R. (2d) 621, 98 D.L.R. (3d) 524, 47 C.C.C. (2d) 535 (Prov. Ct.)

119

R. v. Vasil (1981) 121 D.L.R. (3D) 41

135

R. v. Vermette, [1982] C.S. 1006, confirmed by R.J.Q. [1984] C.A. 466

319

R. v. Vermette (1988) 50 D.L.R. (4th) 385 SCC

319

R. v. Wright (1799), 8 Term Rep. 293, 101 E.R. 1396

43, 65, 74, 99

Re Jackman and Stollery et al. (1980) 28 O.R. (2d) 641

190

Rennie v. Rankin (1850), 1 All 620

154

Rivlin u. Bilainkin, [1953] 1 Q.B. 485, [1953] 1 All E.R. 534 Robati v. The Privileges Standing Committee of the Parliament of the Cook Islands and the Speaker of the Parliament of the Cook Islands, Court of Appeal of the Cook Islands, Feb. 7, 1994 (CA No. 156/93)

97, 105

295

Roman Corp. v. Hudson's Bay Oil & Gas Co., [1973] S.C.R. 820, 36 D.L.R. (3d) 413, affg on other grounds [1972] 1 O.R. 444, 23 D.L.R. (3d) 292, which aff'd [1971] 2 O.R. 418, 18 D.L.R. (3d) 134 8, 25, 29, 80, 81, 85-88, 89, 92, 93 102, 147, 148, 232, 290, 299, 300 Royal Comm. v. Boulanger (1962), B.R. 251 (Que. CA) Samuel, Re, [1913] A.G. 514 (P.C.)

122, 205, 298 189

Table of Cases

387

Shaftesbury's (Earl) Case (1677), 1 Mod. Rep. 144, 6 State Tr. 1270, 86 E.R. 792

276, 281

Sheriff of Middlesex (1840), 11 Ad. & El. 273

213, 214, 283, 335, 336

Sid Taller & Monday Publications Ltd. v. E.N. (Ted) Hughes, Q.C. Commissioner of Conflict of Interest, the Hon. Michael Harcourt, Premier, the Attorney General of British Columbia, the Attorney General of Canada, B.C. Supreme Court April 4, 1995, Vancouver Registry A 950 949 (not reported)

100

Soame v. Barnardiston. See Barnardiston v. Soame Steele v. North Metro. Ry. Co. (1867), 2 Ch. App. 237

302

Stockdale v. Hansard (1839), 9 Ad. & El. 1, 112 E.R. 1112, 48 Rev. Rep. 326, 3 State Tr. N.S. 723 .. . 41, 44, 49, 51, 52, 53, 54, 58, 63, 64, 65, 66, 69, 70, 73, 74, 79, 86, 99, 116, 118, 120, 125, 180, 181, 208, 211, 223, 233, 268, 271, 272, 276, 277, 280, 281-87, 288, 293, 294, 296, 297, 301, 311, 316, 322, 330, 337 Stopforth v. Goyer (1978), 20 O.R. (2d) 262, 87 D.L.R. (3d) 373, 4 C.C.L.T. 265, rev'd in part • 8 C.C.L.T. 172 (C.A) 88, 92, 102, 105, 139, 143, 146 Stourton v. Stourton (1963) 1 ALL E.R. 606 Strauss Case (1956-57), H.C. 305 (U.K.)

153, 286, 301 95-97, 103 104, 263

Strode's Case (1512), 4 Henry 8

25, 28-29, 78

Temple v. Bulmer [1943] 3 D.L.R. 649, [1943] S.C.R. 265

190

Thomas Young's Case (1451-55). See May, 19th ed., p. 74

28

Thorpe's Case (1452), 5 Rot. Parl. 239

196, 273, 274, 279, 284

Todd v. Labrosse (1908) 11 O.W.R. 525

153

Tracey, Re (1832), Stuart's Reports L.C.K.B. 478 Tranton v. Astor (1917), 33 T.L.R. 383

200, 208, 213, 287, 323 37, 129, 130-31, 139, 144, 145, 147

388

Parliamentary Privilege in Canada

Turner v. the Queen et al. (1992) 93 D.L.R. 4th 628 Vezina v. Lacroix (1936), 40 Que. P R. 1, 43 R.L.N.S. 67

186 91-92,103

Victoria Legislative Assembly (Speaker) v. Glass (1871), 24 L.T. 317, L.R. 3 P.C. 560, 17 E.R. 170 (PC.)

202

Wallace v. A.G. B.C., [1978] 1 WWR. 411, 82 D.L.R. (3d) 423, 7 C.P.C. 127 (B.C. S.0 )

289

Ward v. McBride (1911), 24 O.L.R. 555 (CA-)

31

Wason, ex parte (1869), L.R. 4 Q.B. 573

97, 116, 148

Wason v. Walter (1868), L.R. 4. Q.B. 73 40, 41, 42, 43-44, 45, 46, 48, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 68, 69, 70, 74, 90, 99, 100, 107, 118, 119, 120, 134, 146, 148, 248 Wellesley v. Duke of Beaufort (1831), 2 Russ. & M. 639, 39 E.R. 538

156, 223

Westmeath v. Westmeath (1896), Q.B.D. 344

157

Whitaker and C.U.P.W. v. Huntington (1980) 15 C.C.L.T. 19 (B.C.S.C.)

112

Williamson v. Norris, [1899] 1 Q.B. 7

183, 210

INDEX

A Acte v. McTeer see Proceedings in Parliament—Statements A.G. Ceylon v. de Livera see Proceedings in Parliament—Member A.G. v. Bradlaugh see House of Commons—Practices Anglin case see Members of Parliament—Misconduct Ashby v. White see United Kingdom—Question of privilege Australia Parliamentary precincts, defined, 176 See also Freedom of Speech— Application; Reports, papers, votes, proceedings—Debates B Barnardiston v. Soame see United Kingdom—Question of privilege Beaumont v. Barrett see Powers of the House of Commons—Penal jurisdiction Benyon v. Evelyn see United Kingdom—Question of privilege Bill of Rights, 1689 see Freedom of Speech—Origins; House of Commons—Employees, Powers of the House of Commons; Privilege, powers and immunities—Early assemblies; Proceedings in Parliament—HousePersons other than Members— Protection; Protection of Members— Apart from Parliamentary privilege; Reports, papers, votes, proceedingsDebates—Publication—Publications used as statutory exceptions; United Kingdom

Board of Internal Economy see House of Commons Bradlaugh v. Gossett see House of Commons—Practices; Powers of the House of Commons; Question of privilege—Internal proceedings; United Kingdom—Member's immunity Braddock v. Tillotson's Newspapers Ltd. see United Kingdom—Debates Breach of privilege see Contempt of Parliament; Contempts/breaches of privilege; Privilege, powers and immunities; Question of privilege Breach of trust see Question of privilege—Acts Bribes see Freedom of speech— Upholding; Members of Parliament; Question of privilege—Acts British Columbia see History of Parliament in Canada; Proceedings in Parliament—"Any" connection with matter of Parliament—Statements; Question of privilege—Jurisdiction Broadcasting Electronic publication of debates, 48-9 Common-law, protection, 56-7 See also Freedom of speech—Electronic publication; Parliamentary papers; Proceedings in Parliament; United Kingdom Burdett v. Abbot see Powers of the House of Commons—Penal jurisdiction; United Kingdom— Question of privilege

Parliamentary Privilege in Canada

390

C Canada Elections Act see

—

Elections Procedure

Canadian Charter of Rights and Freedoms (1982) Adoption, implication, purpose, 303, 305 Individual rights, 303-4 Judicial role, 304 Provincial legislatures, application to, 309 Provisions, 305-6 Upholding, Supreme Court of Canada role, 304 See also Freedom of speech—Constitutionally inherent privilege; Parliamentary precincts—Access; Powers of the House of Commons—Penal jurisdiction; Privilege, powers and immunities; Proceedings in Parliament—Broadcasting; Question of privilege—Internal proceedings—Jurisdiction; Reports, papers, votes, proceedings—Debates

Chatterton v. Secretary of State for India in Council see Proceedings in Parliament— Statements

Chubb v. Salomon see United Kingdom—Journals

Church of Scientology of California v. Johnson-Smith see Reports, papers, votes, proceedings—Debates

Civil law see Parliamentary precincts Clark v. A.G. Canada see Protection

—

of Members Member's immunity

Club de la Garnison de Quebec, Le v. Lavergne see Provincial legislatures—Freedom of speech

Coffin v. Coffin see Proceedings in Parliament—Statements

Collective privilege see instead Corporate privilege

Colonial Laws Validity Act, 1865 see Powers of the House of Commons—Penal jurisdiction; Provincial legislatures—Early assemblies

Committee on Internal Economy, Budgets and Administration see Senate

Committee on Privilege see

—

Question of privilege Matters

Committees of the Houses of Parliament Authority, 37-8, 185 Chair see Committees of the Houses of Parliament—Questions of privilege Freedom of speech, 38-9 Proceedings, printing, authority, protection, 71-2 Committee reports, 72-3 Question of privilege, 318 Question of privilege, 221-2 Chair, allegations of partiality or bias, contempt, 253 Speaker interfering, 222 See also Committees of the Houses of Parliament—Proceedings Questions put to witness, scope, 191 Sittings Beyond precincts, 37-8 Outside Canada, 38 Witnesses Oath, 191-2 Protection, 38, 160, 191 Summon, 190, 337 See also Parliamentary papers—Reports; Powers of the House of Commons; Proceedings in Parliament—House and Committee proceedings; Question of privilege—Matters; Reports, papers, votes, proceedings; United Kingdom—Freedom of speech

Constitution Act, 1867 see Corporate privilege; Freedom from arrest—Origins; Freedom of Speech—Electronic publication— Publication of debates—Statements; History of Parliament in Canada; Powers of the House of Commons—Institute inquiries—Penal jurisdiction—Right to administer oath; Privilege, powers and immunities—Laws—Origins—Right to exclude strangers; Provincial legislatures—Early assemblies; Question of privilege—Jurisdiction

Constitutional Act, 1791 see History of Parliament in Canada

391

Index

Contempt/breach of privilege

Raising, purpose, 217

Contempt of court see Freedom from

arrest—Civil matters—Exemptions Breach of privilege, comparison, 14-5 See also Debates and proceedings; Elections—Illegal practices; Members of Parliament—BribesMisconduct—Negligent in their duties; Powers of the House of Commons—Penal jurisdiction; Proceedings in ParliamentsLanguage—Writings; Question of privilege—Breach of privilege/ contempt; Speaker—Allegations Cook v. Alexander see Reports, papers, votes, proceedings—Debates; United Kingdom—Freedom of speech Corporate privilege, 15, 165 Constitution Act, 1867,165 Parliament of Canada Act, 165 Powers, 15 See also Question of privilege—Acts Court evidence see Reports, papers, votes, proceedings—Committees proceedings—Debates—Publications; United Kingdom—Journals Court or tribunal

Jury service, privilege of exemption, 159, 161, 292 Members, exempt from attending, 158-9, 161, 292 Non-Members, officers of the House, witnesses, provisions, 160-1 Subpoena served by, 159, 168 Courts see Powers of the House of Commons; Question of privilege— Jurisdiction Coutume de Paris see History of Parliament in Canada Cox v. Prior see Freedom from arrest—Origins Criminal Code see Freedom from arrest—Exceptions; House of Commons—Internal regulations; Parliamentary precincts—Criminal law; Provincial legislatures—Freedom of speech Criminal law see Parliamentary precincts; Privilege, powers and immunities

Criminal offences see Freedom from

arrest—Exceptions; Members of Parliament—Right to sit; Question of privilege—Acts Criminal statements see Protection of Members CuviUier v. Munro see Freedom from arrest—Exceptions—Origins D Daoust case see Members of

Parliament—Misconduct

Davison v. Duncan see Protection of

Members—Member's immunity; United Kingdom—Freedom of speech Debate see Question of privilege Debates see Reports, papers, votes, proceedings; United Kingdom Debates and proceedings

False, perverted reports, contempt, 247-8 Publication Control by legislative body, privilege, authority, 125, 139, 318 Premature or of in camera proceedings, contempt, 248-50 See also Broadcasting Questioned, contempt of Parliament, 125 Dillon v. Balfour see United Kingdom—Freedom of speech Dingle v. Associated Newspapers Ltd. see Reports, papers, votes,

proceedings—Debates

Dominion Controverted Elections Act see Members of Parliament—

Right to sit

Dowson v. The Queen see

Proceedings in Parliament— Statements E

Earl of Shaftesbury case see United

Kingdom—Question of privilege Election writ see Powers of the House of Commons—Vacancy; Reports, papers, votes, proceedings—Return of writ

Parliamentary Privilege in Canada

392

Freedom from arrest—Cont.

Elections Illegal practices, allegations of, contempt, 254 Procedure, 187 Canada Elections Act, 188 See also United Kingdom—Question of Privilege

Electronic publication see Broadcasting; Freedom of speech; Reports, papers, votes, proceedings—

Debates

Ex parte C,otte v. Duvernay, 204, 213

Ex parte Dansereau see Powers of the House of Commons—Penal jurisdiction

Ex parte Lavoie see Powers of the House of Commons—Penal jurisdiction

Ex parte Monk see Powers of the House of Commons—Penal jurisdiction

F Federal Court of Canada see Privilege, powers and immunities— Origins

Ferrers' case see United Kingdom—Question of privilege Fielding v. Thomas see Powers of the House of Commons—Penal jurisdiction; Provincial legislatures—Early assemblies

Forbes v. Samuel see United Kingdom—Journals

Forgery see Question of privilege—Acts France see History of Parliament in Canada

Fraud see House of Commons—Internal regulations; Question of privilege— Acts

Freedom from arrest Application, duration, extent, 155, 161 Officers of the House, witnesses, provisions, 160 R. v. Gamble and Boulton, 155 Authority Standing Orders, No. 15, 151 Civil matters, 153-6, 160-1 Contempt of court, 157, 161 Early assemblies, 3

Exception, criminal offences, 156, 160 Contempt of court, 157-8 Criminal Code, 151 Re Ouellet, 158 Cuvillier v. Munro, 156 House be informed, 158 Quasi-criminal offences, 156-7 R. v. Gamble and Boulton, 156 Origins, 151-3 Constitution Act, 1867, 154-5 Cox v. Prior, 153 Custom/statute, 154 Cuvillier v. Munro, 154 Early parliaments, 154 English Constitution, 152 Legislative Assemblies, 152 Moriarty v. Kavanagh, 154 Parliament of Canada Act, 154-5 See also Question of privilege; United Kingdom—Question of privilege

Freedom of speech Application, 39 Australia, Parliamentary Privileges Act, 1987, 27 R. v. Murphy, 26 Constitutionally inherent privilege, 315

Canadian Charter of Rights and Freedoms, 333-4

Early assemblies, 3, 6-7, 25 Electronic publication, broadcasting, 49-51, 55-6 Constitution Act, 1867, 55-6, 59 Parliament of Canada Act, 56, 59 Exceptions, 37 Civil prosecution, 37 Criminal proceedings, 37

Parliament of Canada Act,

penalty, 37 Importance, defined, 26 Official Secrets Act, relationship, 26 Origins, 25 Bill of Rights, 1689, 26-7, 30, 34, 36 Persons other than Members, protection, 36-7 Petitions presented to House, 47 Publication of debates, 40-2 Admission of strangers, relationship, 41 Constitution Act, 1867, 44, 51, 57 Media reporting, 57-9 Parliament of Canada Act, 44, 51 Publication in toto, 45-6, 50-1, 77 Publication outside House, 42, 44-6 Publications, statutory protection, Parliament of Canada Act, 40

Index

393

Freedom of speech—Cont.

Speeches, 81 Appendix to Hansard, 39-40 In Chamber, 40 Publication, protection, 39 Statements made in debate, 27, 29-30 Constitution Act, 1867, 35 Roman Corp v. Hudson's Bay Oil & Gas Co., 29-31 Upholding, protecting, 59-60 Accepting payments, bribes, 59-61 See also Committees of the Houses of Parliament; Householder mailings; Individual privilege; Members of Parliament—Rights; Proceedings in Parliament; Provincial legislatures; Question of privilege; Territories, legislatures; United Kingdom

G Gabias v. Legislative Assembly of Quebec and A.G. Quebec see Question of privilege—Internal proceedings Garrison Club of Quebec see Club de la Garnison de Quebec, Le Gipps v. McElhone see Protection of Members—Apart from Parliamentary Privilege Gregoire case see Parliamentary precincts—Act

H Habeas corpus see Powers of the House of Commons—Penal jurisdiction Habeas Corpus Act see United Kingdom—Powers Hansard see Freedom of speech—Speeches Haxey case see United Kingdom— Freedom of speech

History of Parliament in Canada British Columbia, 4 Constitution Act, 1867, 3-4 Constitutional Act, 1791, 2 Coutume de Paris, provisions, 1-2 Early assemblies, powers, 3-4 New Brunswick, 2 Newfoundland, 2, 4 Nova Scotia, 2 Prince Edward Island, 2 Quebec Act, 1774, provisions, 1-2

History of Parliament in Canada—Cont. Under British regime, 1 Under French regime, 1

Houghton v. Plimsoll see United Kingdom—Parliamentary debates

House of Commons

Board of Internal Economy, capacity, legal entity, 215 See also House of Commons— Internal regulations Employees, management, 184 Bill of Rights, 1689, 184 Parliamentary Employment and Staff Relations Act, 184 Internal affairs, right to regulate, 164-5 Internal regulations, criminal law, application, 120-1 Board of Internal Economy, authority 120-1 Cases, fraud, misuse of budgets, court decisions, 121, 123 Criminal Code, 121, 123 Parliament of Canada Act, 120-1 R. v. Fontaine, 121 Officers see Court or tribunal—Non-Members; Freedom from arrest—Application; Powers of the House of Commons—Penal jurisdiction; Privilege, powers and immunities—Extension to Non-Members Practices and procedure, judicial notice by courts, 128 A.G. v. Bradlaugh, 128 Bradlaugh v. Gossett, 128 Proceedings, Member of Senate, not compelled to attend as witness, 158-9, 191 Vacancy see Powers of the House of Commons

Householder mailings

Contents, privilege, provisions, 9 Freedom of speech, protection, 47-8 Publication, not an order of House, distinction, 74-5 Hutchison v. Proxmire see Proceedings in Parliament— Statements

I Individual privilege Categories, 15 Freedom of speech, 15

Parliamentary Privilege in Canada

394

Individual rights see Canadian Charter of Rights and Freedoms— Adoption J Jacob, Jean-Marc see Question of privilege—Acts Jay v. Topham see United Kingdom—Question of privilege Journals see Parliamentary papers; Reports, papers, votes, proceedings; United Kingdom Jury service see Court or tribunal K 'Belly v. Carson see Powers of the House of Commons—Institute inquiries—Penal jurisdiction; Territories, legislatures—Laws of Parliament L Lake v. King see United Kingdom—Freedom of speech Lanctot case see Members of Parliament—Misconduct Landers v. Woodworth see Powers of the House of Commons—Penal jurisdiction Language see Proceedings in Parliaments; Unparliamentary language; United Kingdom—Question of privilege Laws of Parliament Parliamentary privilege, 1 See also Powers of the House of Commons; Privilege, powers and immunities; Provincial legislatures; Question of privilege—Acts; Territories, legislatures Leave of House see Proceedings in Parliament—Members Legislative Assembly Act see Provincial legislatures—Freedom of speech Library of Parliament Jurisdiction of, mandate, 165-6 Lord Cochrane case see Parliamentary precincts—Act •

Lower Canada see Powers of the House of Commons—Penal jurisdiction Lyons et al v. The Queen see Reports, papers, votes, proceedings— Debates M Mangena v. Edward Lloyd Ltd. see United Kingdom—Parliamentary debates McGreevy case see Members of Parliament—Misconduct McNabb v. Bidwell, 200, 208 Media Protection, 121-2 See also Freedom of speech—Publication of debates; Protection of Members—Apart from Parliamentary privilege— Criminal statements—Member's immunity Members of Parliament Assaulting Outside precincts, 256 See also Question of privilege—Acts Attendance see Powers of the House of Commons Bribes, accepting, allegations of, contempt, 250-1 Expelled see Powers of the House of Commons—Member; United Kingdom—Powers Integrity see Proceedings in Parliaments—Language Misconduct, allegations of, contempt, 245-6, 250 Pallett case, 246 Misconduct, cases Anglin case (1877), 242 Daoust case (1876), 242 Lanctot case (1911), 243-4 McGreevy case (1891), 243, 245 Murdock case (1924), 244 Rykert case (1890), 242-3, 245 Schell case (1903), 243 Turcotte case (1894), 243 Negligent in their duties, allegations of, contempt, 253-4 Officially exist/cease to exist as, 21-3 Right to sit and vote Civil, criminal jurisdiction, 189-90 Criminal conviction, 188-9 Determining, 247 Dominion Controverted Elections Act, *190

395

Index

P

Members of Parliament—Cont.

Suspended see Powers of the House of Commons—Members

Misconduct see Members of

Parliament; Question of privilege— Acts

Moriarty v. Kavanagh, 154 Murdock case see Members of Parliament—Misconduct

N New Brunswick see History of

Parliament in Canada New Brunswick Broadcasting Co. v. Nova Scotia see Privilege, powers and immunities—Canadian Charter of Rights and Freedoms; Proceedings in Parliament— Broadcasting

New Zealand

Parliamentary precincts, defined, 175-6

Newfoundland see History of

Parliament in Canada; Powers of the House of Commons—Institute inquiries Nova Scotia see History of Parliament in Canada; Powers of the House of Commons—Penal jurisdiction; Proceedings in Parliament— Broadcasting

0 Oath see Committees of the Houses of

Parliament—Witnesses; Powers of the House of Commons—Right to administer; Privilege, powers and immunities—Early assemblies Officers of the House see Court or tribunal—Non-Members; Freedom from arrest—Application; Powers of the House of Commons—Penal jurisdiction; Privilege, powers and immunities— Extension Official Secrets Act see Freedom of Speech; Protection of Members— Member's immunity; United Kingdom—Member's immunity

Ontario see Proceedings in

Parliament—Statements; Protection of Members—Apart from Parliamentary privilege; Provincial legislatures— Freedom of speech— Powers

Pallett case see Members of Parliament—Misconduct

Papers see Reports, papers, votes, proceedings Parlett v. Robinson see Protection of Members—Apart from Parliamentary privilege; Proceedings in Parliament—Broadcasting

Parliament Buildings Accommodation and service, administration, 170 Parliament of Canada Act see Corporate privilege; Freedom from arrest—Origins; Freedom of Speech— Electronic publication—ExceptionsPublication of Debates—Publications; House of Commons—Internal regulations; Parliamentary papers; Powers of the House of Commons; Privilege, powers and immunitiesLaws—Origins; Protection of Members—Criminal statements; Question of privilege—Jurisdiction; Reports, papers, votes, proceedingsJournals—Publication

Parliamentary debates Reporting, 63

Parliamentary Employment and Staff Relations Act see House of Commons—Employees Parliamentary Papers Act, 1840 see Powers of the House of Commons—Penal jurisdiction; United Kingdom— Freedom of speech—Parliamentary dehates—Question of privilege—Reports

Parliamentary papers, protection Broadcasting, provincial statutory protection, 71 Defining, 74-5 Journals publication, authority, 72-3 Papers tabled, statutory/common-law privilege, 72 Parliament of Canada Act, 71-2, 74, 77 Publication, 63, 70 Order of House, protection, 71, 74-5, 77 See also Committees of the Houses of Parliament—Proceedings

396

Parliamentary papers, protection-Cont.

Reports and papers tabled Committee referral, protection, 73 Not published by House, 73-4

Parliamentary precincts Access, 176-8, 322 Canadian Charter of Rights and Freedoms, application, 331 Payson v. Hubert, 177

Act of contempt within, treatment, 166, 256-8 Gregoire case, 257-8 Lord Cochrane, case, 257-8 Sitting/non-sitting days, 166-8, 259 Civil law, application, 165 Criminal law/Criminal Code,

application, 164, 171-5, 257 Defined, inclusion, 163-4 Jurisdiction, 163, 257 Property, building management, 169-70 Property title, 168-9 Security, policing, 1714, 257-9 Sittings, off-site, 37 Traffic control, 170-1, 174 See also Australia; Committees of the Houses of Parliament-Sittings; New Zealand; United Kingdom

Parliamentary Privileges Act

(Australia) see Freedom of Speech-

Application

Payson v. Hubert see Parliamentary precincts; Privilege, powers and immunities-Right to exclude strangers

Penal jurisdiction see Powers of the

House of Commons; Provincial legislatures-Powers; Territories, legislatures-Powers

Pepper v. Hart see United

Kingdom-Debates-Question of privilege; Proceedings in Parliament

Perjury see Proceedings in Parliament Petitions see Question of

privilege-Acts

Plunkett v. Corbett see United Kingdom-Debates

Point of order see Question of

privilege-Question

Police see Parliamentary precincts

Parliamentary Privilege in Canada

Powers of the House of Commons, 179

Attendance and service of Members, right, 181-3 Authority to publish, 182-3, 192 Bill of Rights, 1689, 180, 184 Bradlaugh v. Gossett, 181, 185, 327, 343-4, 348, 350 Committees, 185 Courts, comparison, 179 Courts interpretation, Reference Re Language Rights in Manitoba

case, 186 Disciplinary powers, 180-1, 183, 185, 323-4, 344 Institute inquiries, 190-1 Constitution Act, 1867, 190 Newfoundland, Kielly v. Carson, 190 Parliament of Canada Act, 190 Summon witnesses, 190 Jurisdiction, 180-1, 1834 Courts defining, 346 Laws of Parliament, administering, 179-80, 183 Member expelled, suspended, 189 Member qualified to sit, determines, 187-8 Parliament of Canada Act, 182 See also Powers of the House of Commons-Institute inquiriesRight to administer oath Penal jurisdiction, 193, 207-8, 302, 334-6, 339-40, 348-9 Beaumont v. Barrett, 287-8 Beyond Parliamentary Precincts, 194 Burdett v. Abbot, 213, 299, 326, 335, 340, 346-8, 350 Canadian Charter of Rights and Freedoms, 209, 344, 347 Colonial Laws Validity Act, 203

Committed for contempt, 221, 326, 334, 336 Duration, 208 Release on habeas corpus, 213-5 Warrant to commit, 208-9 Constitutionally inherent, Constitution Act, 1867 application, 198, 203, 334-40, 342, 345-7, 349 Contempt, power to punish, 193-4, 200, 333-5 Early assemblies, 197-200, 202, 207, 335 Lower Canada, 199 Nova Scotia House of Assembly, 198 Upper Canada, 199 & parte Cotte v. Duvernay, 204, 213 Ex parte Dansereau, 204, 209, 214 Ex parte Lavoie, 202-3, 209, 213 Ex parte Monk, 208, 213

Index

Powers of the House of Commons-Cont.

Penal jurisdiction-Cont. Fielding v. Thomas, 205-6, 209, 213, 324-5, 335 Landers v. Woodworth, 204-5, 296-7, 300, 323-5, 327, 336, 342, 345, 350 McNab u. Bidwell, 200, 209, 214, 326 Members, expulsion, suspension, 211-2, 324, 326 McGreevy, Thomas, 212 Riel, Louis, 211-2 Rose, Fred, 212 Need, scope, 193-4, 207, 214, 336-7 Newfoundland, Kielly v. Carson, 197-8, 201-2, 204-7, 287-8, 329-30, 333, 336, 339, 347 Officers of the House, authority, protection, 210-1, 233 Parliament of Canada Act, 336-7 R. v. Bunting, 205, 288 Re Tracey and Duuernay, 200-1, 208, 213, 287 Sergeant-at-Arms, authority 210 Speaker's warrant, terms, 214 Procedural requirements, Courts role, 186-7 Right to administer oath to witness, 191-2 Constitution Act, 1867, 191-2 Parliament of Canada Act, 191-2 Right to regulate code of procedure, 183-5 Right to regulate internal affairs, 182-6, 316-7 Speaker, authority, 180 See also Powers of the House of Commons-Penal jurisdiction Statutory interpretation, 180, 185-6 Vacancy, issue writ for election, 187-8

Powers of the Senate see Senate Prince Edward Island see History of Parliament in Canada

Privacy see Question of privilege-Acts Privilege, powers and immunities

Adjudicate, jurisdiction, 9 Application, extent, 14, 21, 306 Authority, 20, 311 Breach of Privilege, 14 Canadian Charter of Rights and Freedoms, subject to, 9, 303, 306, 322-3, 328, 331, 338-9, 344, 349-50 Adoption, impact, 303, 342-3, 346

397

Privilege, powers and immunities-Cone.

Canadian Charter of Rights and Freedoms, subject to-Cont. New Brunswick Broadcasting Co. u. Nova Scotia, 306-7, 313-4, 322, 327-9, 331-3, 335-42, 344-5, 347, 349-50 Provincial legislative assemblies, application to, 306-7, 333 Constitutionally inherent privilege, 307, 314-5, 327-8 See also Freedom of speech Criminal law/proceedings, immunity/impunity, 7-8, 15, 257 Defined, 13 Early assemblies 18th century, 2 Bill of Rights, 1689, 6 Freedom from arrest, 3 Freedom of speech, 3, 6-7, 25 Oath, 2 Proceedings, right of regulation, 3 Exemptions, 8 Extension to Non-Members Officers of the House, 160, 232-3 Witnesses, petitioners, 160 House, rules of procedure, provisions, 13-4 Internal proceedings, right to determine, 335, 341, 346 Laws of Parliament Constitution Act, 1867, 11-2 Parliament of Canada Act, 11-2, 299 Necessity 80, 217, 311, 329-31, 336 Origins, 15-6, 311 Constitution Act, 1867, 16-7, 332-3 Early assemblies, 16 Federal Court of Canada findings, 332 Parliament of Canada Act, 17 Statute/custom, 15-6 United Kingdom, 16 Practice, 217-8 Private rights, courts upholding, 303 Provisions, 4 Early assemblies, 4 Right to exclude strangers from House, 307-9, 3124, 317-8 Constitutionally entrenched, 309-10, 312, 328, 343 Payson u. Hubert, 314 Southam Inc. u. Canada, 332 Rights, basis, 11-3, 15 United Kingdom/Canada, pre-confederation distinction, 17-8 Validity, courts role, 348, 350 Witnesses, summoning, 337-9 Thompson Newspapers Ltd. v. Canada, 339

Parliamentary Privilege in Canada

398

Privilege, powers and immunities-Cont. See also Corporate privilege; Freedom from arrest; Freedom of speech; Question of privilege; United Kingdom

Proceedings in Parliament Acts of Members done in official capacity, beyond parliamentary work, 83 R. v. Arseneau, 84 R. v. Bruneau, 83 R. v. Bunting, 84, 94, 97 "Any" connection with matter of Parliament, 99-100 British Columbia Supreme Court decision, 100 Broadcasting, use of television cameras, Nova Scotia legislature, ruling, 306-7, 313, 341

Canadian Charter of Rights and Freedoms, application, 307-8, 341-2

New Brunswick Broadcasting Co. v. Nova Scotia, 306-7

Supreme Court of Canada decision, 307-9 Defining, scope, 77, 80-2, 94-5, 98, 101, 105, 294 Freedom of speech, exceptions, 147 House and Committee proceedings, 80, 82-3, 102 Speeches in House, Committees, distinction, 81 House, sole jurisdiction, 125 Bill of Rights, 1689, 125 Judicial proceedings, 147-8 Language impugning integrity of Members, contempt, 254-6 Member "exercising functions as a Member", 82 AG. Ceylon v. de Livera, 82-3, 86, 93 R. v. Bunting, J.A. O'Connor judgement, 82, 94, 102-3 Members, leave of House to give evidence elsewhere, 146, 149 Non-Member, leave sought by petition, 146 Perjury, 148-9 Persons other than Members, protection, 100-1, 103 Bill of Rights, 1689, provision, 100 Petitions tabled, 104 Private meetings of Members, 98 Protection, 80 Bill of Rights, 1689, (United Kingdom), absolute privilege, provisions, 77-8, 81, 86, 101

Proceedings in Parliament-Cont. Protection-Cont. Debates, 103 Extent, 315 Papers, letters, 103-5 Statements made in House, repeating outside, 90-1, 102 Re Ouellet case, 92-3, 102 Stopforth v. Goyer, 92 Vezina u. Lacroix, 91-2 Statements made outside House, extension of statements made in House, 85-8, 101 Authority cited, Chatterton v.

Secretary of State for India in Council, 89-90 British Columbia legislature, Acte v. McTeer, 88 Ontario legislature, Dowson v. The Queen, 88-90 Roman Corp v. Hudson's Bay Oil & Gas Co., decision, 85-90, 92-4, 102,

105, 148 United States example, Hutchinson v. Proxmire, 88 Statements, private, unrelated to but during proceeding, 84-5, 104 Coffin u. Coffin, 85, 97 Unable to support action, 148 Writings holding Members in disrespect, contempt, 251-3 See also Reports, papers, votes, proceedings; United Kingdom

Protection of Members Apart from Parliamentary privilege Assisting constituents against public officials, 107-8, 112 Member's duty, 108, 112 Parlett v. Robinson, 108 R. u. Rule, 108 Assisting constituents in interest of ending abuses, 109-10 Gipps u. McElhone, 109 Motive, bona fide/malice, 109-010, 112

R. v. Rule, 112-3

Common law, application, 107 Disclosure by informants/constituents, 110, 113 Bill of Rights, 1689, 111 Ontario, Member of Legislative Assembly, application, 110-1 Revealing source, 112 Media, news reporter, comparison Criminal statements Media reporting, 119 Parliament of Canada Act, 120 Publication outside House, 119

Index

399

Protection of Members—Cont.

Criminal statements—Cont. R. v. Bunting, 119 Wason v. Walter; 119-20 Members immunity from prosecution Clark and AG.Canoda case, 117 Crime committed in House, 122-3 Davison v. Duncan, 118 Official Secrets Act, 117-9, 121-2 R. v. Lord Abingdon, 118-20 R. v. Creeuey, 118-20 Right to release information, 117-8 To constituents/media, 118, 291 Within House/outside House, 118-9 See also United Kingdom Parliamentary work, 7-8 Proceedings, right to determine, 8 Remarks/publication outside House, 7-8, 119, 121, 232 Statements outside House, Roman Corp v. Hudson's Bay Oil & Gas Co., 8

Protestation of 1621 see United Kingdom—Proceedings in Parliament Provincial legislatures

Early assemblies, law of Parliament Colonial Laws Validity Act, 1865, 5 Constitution Act, 1867, 5 Fielding v. Thomas, 4-5, 7 Freedom of speech, statements made in debate, 6-7, 34-6 Criminal Code, Section 307(1), 35 Legislative Assembly Act, 33-4 Ontario, criminal law, application, 33-4 Publication of debates, 59 Quebec, Le Club de la Garnison de Quebec u. Lavergne, 31-3, 35-6 Powers, penal jurisdiction, 206 Ontario, 203-4 Quebec, 203-4, 209 Tracey case, 287 Privilege, protection, 5 See also Canadian Charter of Rights and Freedoms; Privilege, powers and immunities—Canadian Charter of Rights and Freedoms; Proceedings in Parliament—Statements

Q Quasi-criminal offences see

Freedom from arrest—Exceptions

Quebec see Provincial

legislatures—Freedom of speech— Powers

Quebec Act see History of Parliament in Canada

Queen, The v. Nicholas S. Connolly and Thomas McGreevy see Reports, papers, votes, proceedings—Debates

Question of privilege Acts and conduct constituting, 228-9, 231-2 Accepting bribes, 237-8 Advance knowledge of budget, 253 Assaulting, threatening Member, 230-2 Defamatory remarks against Member, 33-4 Documents presented to Committee, falsified, 233 Fraud, breach of trust, 244 House determining, 229, 292 Interference with corporate privilege, 229 Interference with Member's rights, 228, 232-4 Invasion of Member's privacy, 256 Jacob case, communiqué of Oct. 26/95, 229-30 Member conviction of forgery, 242 Member misleading House, 224, 240-1 Member subject to criminal investigation, 234-5 Minister, officer of the Crown, misleading House, 234 Misconduct, 238-9, 241-2 Not obeying laws of Parliament, rules of order of House, 239-40 Obstructing order of House, 240 Obstruction of Non-Members engaged in Parliamentary proceeding, 236-7 Petitions, abusive, fraud, 233 Unparliamentary language, 255 Votes, reflect improperly, 253 Breach of privilege/contempt, interpretation, 224-7 Calling alleged contemner to Bar/proceeding, practice, 263-4, 266, 270, 337-8 Debate, 220 Rule of relevancy 220 Established, codified, 225-6 Changes, Parliament of Canada, authority, 292-3 Freedom from arrest, 292 Freedom of speech, 222, 228, 231, 292 Initiating, motion, 217-9, 222, 260-1, 263-4, 266 Amendable, 261, 267 Not delayed, 260-1 Notice requirements, 219, 259-60 Passed by unanimous consent, 219

Parliamentary Privilege in Canada

Question of privilege-Cont. Initiating, motion-Cont. Precedence over other business, 219, 221, 259-60, 267 Speaker, role, 261-2, 265 Substantive notice of motion, 219 Internal proceedings of the House, application, 316 Bradlaugh v. Gossett, 293-4, 296-7, 316-7 Defining, 293 Exceptions, procedure entrenched in Constitution, 294-6, 301 Gabias v. Legislative Assembly of Quebec and AG. Quebec, 294 Internal/not internal, cases, examples, 294 Judicial deference, 318-21, 347-9 Canadian Charter of Rights and Freedoms, 318-20 Reference Re Public Service Employees Relations Act (Alta.), 319-20 Jurisdiction, 293-4, 297, 301 R. v. Graham-Campbell, 301 Jurisdiction of, 287-9, 292, 299-300, 302 British Columbia, Wallace v. AG.B.C., 289 Canadian Charter of Rights and Freedoms, impact, 305 Constitution Act, 1867, 288, 298 Courts, 288-90, 292-3, 296-302, 347-9, 322, 325, 327 Defending, 298 Parliament of Canada Act, 290, 298-9 Re v. Clark and AG. Canada, 289-91, 300 Roman Corp v. Hudson's Bay Oil & Gas Co., 290, 300 See also United Kingdom-Question of privilege Matters obstructing Member in their capacity as Member, 224 Matters, referred to Committee, 219. 221, 261, 263-5 Committee on Privilege, role, procedure, 220, 267-9 Report, 269-70 Member, alleged contemner, withdrawing from Chamber, 218, 266-7 Precedent, establishing, 218-9

Question of privilege-Cont.

Prima facie Defining, 221, 229 Determining, House/Speaker, 220-1, 223-4, 270, 293 Member, benefit of doubt, 227, 260 Validity 222-3 Proceedings, procedure involved, sequence of events, 227-8, 259, 261, 264-5 Question of privilege/point of order, 220, 223 Raising question, without intention to move motion, 217, 262 Saskatchewan Legislative Assembly, credibility of officers, 232 See also Committees of the Houses of Parliament; Reports, papers, votes, proceedings-Debates; United Kingdom

R R. v. Arseneau see Proceedings in Parliament-Acts of Members

R. v. Bruneau see Proceedings in Parliament-Acts of Members

R. v. Bunting see Powers of the House

of Commons-Penal jurisdiction; Proceedings in Parliament-Acts of Members-Member; Protection of Members-Criminal statements R. v. Connolly see Reports, papers, votes, proceedings-Committee proceedings R. v. Creevey see Protection of Members-Member's immunity; United Kingdom-Freedom of speech R. a Dangerfleld see United Kingdom-Proceedings of Parliament R. v. Fontaine see House of Commons-Internal regulations R. v. Gamble and Boulton see Freedom from arrest-Exceptions R. v. Gifteraft see Reports, papers, votes, proceedings-Debates R. v. Graham-Campbell see Question of privilege-Internal proceedings R. v. Lord Abingdon see Protection of Members-Member's immunity; Reports, papers, votes, proceedingsDebates; United Kingdom-Freedom of speech

Index

401

R. v. McGavin Bakeries Ltd. (No. 4) see Reports, papers, votes, proceedings—Journals

R. v. Murphy see Reports, papers,

votes, proceedings—Debates; Freedom of Speech—Application

R. v. Paty see United

Kingdom—Question of privilege

R. v. Rule see Protection of

Members—Apart from Parliamentary privilege

R. v. Salituro see Reports, papers, votes, proceedings—Debates

R. v. Vasil see Reports, papers, votes, proceedings—Debates

Re Clark and A.G. Canada see

Question of privilege—Jurisdiction

Re Ouellet case see Proceedings in Parliament—Statements; Freedom from arrest—Exceptions

Re Tracey and Dover-nay see Powers of the House of Commons—Penal jurisdiction

Reference Re Language Rights in Manitoba see Powers of the House of Commons

Reference Re Public Service Employees Relations Act (Alta.) see Question of privilege—Internal proceedings

Reports, papers, votes, proceedings

Committe proceedings, admissible as evidence in court, 134, 145, 149 Criminal prosecutions, 142, 146 R. v. Connolly, 149 Debates, admissible as evidence in court, 134, 138-9, 143-6 Aid interpretation of statutes, 135-8, 149 Australian case, R. v. Murphy, 143 Bill of Rights, 1689, 143 Canadian Charter of Rights and Freedoms, Section 13, 142 Church of Scientology of California v. Johnson-Smith, 141, 143

Civil litigation, 140-2 Cook v. Alexander, 134 Criminal prosecutions, 142

Dingle v. Associated Newspapers Ltd.,

140-1

Reports, papers, votes, proceedings—Cont.

Debates, admissible as evidence in court—Cent. Electronic format, 146 Inadmissible without agreement by counsel, 146 Lyons et al v. The Queen, 135-6 Proof Member sat, voted, 139-40, 146-7 Queen, The v. Nicholas K Connolly and Thomas McGreevy, 142

Question of privilege, 143

Regina v. Vasil, 135 R. v. Giftcraft, 137.8 R. v. McGavin Bakeries Ltd. (No. 4),

138-9, 146

R. v. Salituro, 136 Stopforth v. Goyer, 139, 143 Wason v. Walter, 134, 146, 148 Journals, 126-8, 133

Courts, judicial notice, 128 Production of returns to orders, 133 Rights and immunities, Parliament of Canada Act, 128 Use as court evidence, 128-9, 31-2 Parliament of Canada Act, 131-2 R. v. McGavin Bakeries Ltd. (No. 4), 132-3 See also United Kingdom—Journals

Publication, 127-8

Bill of Rights, 1689, 133

House resolution, 125-6 Misrepresentation, 182

Parliament of Canada Act, 126 Publications used as court evidence, 125-6, 129 Civil, criminal prosecution, 129 Papers tabled in House, 134 Returns to orders, 133-4 Publications used as statutory exception, 144-5 Bill of Rights, 1689, 144-5 Return of writ of election, admissible as evidence of membership of the House, 149

Returning officers see United

Kingdom—Question of privilege

Riel, Louis see Powers of the House of Commons—Penal jurisdiction

Roman Corp v. Hudson's Bay Oil & Gas Co. see Freedom of Speech— Statements; Protection of Members— Statements; Proceedings in Parliament—Statements; Question of privilege—Jurisdiction

Parliamentary Privilege in Canada

402

Rykert case see Members of Parliament—Misconduct S Saskatchewan Legislative Assembly see Question of privilege Schell case see Members of Parliament—Misconduct Security see Parliamentary precincts Senate Committee on Internal Economy, Budgets and Administration, capacity, legal entity, 215 Powers, protection, 179 Penal jurisdiction, 193 Senators, right to sit, determines, 190 Proceedings, Member of House, not compelled to attend as witness, 158-9, 191 See also House of Commons—Proceedings Sergeant-at-Arms see Powers of the House of Commons—Penal jurisdiction Sir John Eliot case see United Kingdom—Proceedings in Parliament Sir William Williams case see United Kingdom—Question of privilege Southam Inc. v. Canada see Privilege, powers and immunities— Right to exclude strangers Speaker Allegations of partiality or bias, contempt, 253 See also Committees of the Houses of Parliament—Question of privilege; Powers of the House of Commons; Question of privilege—InitiatingPrima facie Speaker's petition, 18-20 Pre-Confederation Canada, 19 Privilege, provisions, 20 United Kingdom, 18-9 Standing Orders see Freedom from arrest—Authority Stockdale v. Hansard see United Kingdom—Freedom of speech— Member's immunity—Parliamentary debates—Question of privilege— Reports

Strode case see United Kingdom—Freedom of speech Stopforth v. Goyer see Proceedings in Parliament—Statements; Reports, papers, votes, proceedings—Debates Strangers see Freedom of speech—Publication; Privilege, powers and immunities—Right to exclude strangers; United Kingdom—Privilege, powers and immunities Strauss case see United Kingdom—Proceedings of Parliament Subpoena see Court or tribunal Supreme Court of Canada see Canadian Charter of Rights and Freedoms—Upholding; Proceedings in Parliament—Broadcasting T Territories, legislatures Freedom of speech, statements made in debate, 36 Laws of Parliament Kielty v. Carson, 6 Penal jurisdiction, 206-7 Powers, 5-6 Thomas Young case see United Kingdom—Freedom of speech Thompson Newspapers Ltd. v. Canada see Privilege, powers and immunities—Witnesses Thorpe case see United Kingdom—Question of privilege Tracey case see Provincial legislatures—Powers Traffic control see Parliamentary precincts Tranton v. Astor see United Kingdom—Debates—Journals Turcotte case see Members of Parliament—Misconduct U United Kingdom Broadcasting of debates, 49, 51-2, 55-6 Debates, admissible as evidence in court, 138, 143-4, 147 Aid interpretation of statutes, 136-7 Bill of Rights, 1689, 136, 138

Index

United Kingdom-Cont. Debates, admissible as evidence in court-Cont. Braddock v. Tillotson's Newspapers Ltd., 140 Pepper y. Hart, 136 Plunkett v. Corbett, 140 Tranton v. Astor, 139-40 Freedom of speech, 314 Committees, 38 Origins, 27-9 Bill of Rights,1689, 27, 38, 48, 50 Dillon v. Balfour, 29 Haley case, 27-8 Strode case, 28-9 Thomas Young case, 28 Publication of debates, 40-5, 53-4, 59, 314 Cook y. Alexander, 48 Davison u. Duncan, 48 Lake v. King, 46-7 Parliamentary Papers Act, 1840, 44, 52, 55, 58 R. u. Creevey, 43, 45-7, 54, 91, 101 R. v. Lord Abingdon, 42, 45-7, 54, 91, 101 Stockdale v. Hansard, 41, 44, 52-4, 58 Wason u. Walter, 42-4, 48, 52-9, 68-9, 100 Journals, use as court evidence, 130 Certified, 131 Chubb v. Salomons, 130, 140 Forbes v. Samuel, 129-30, 145 Tranton v. Astor, 129-31, 145 Members immunity from prosecution, 314 Bill of Rights, 1689, 115-6 Bradlaugh u. Gossett, 116, 286 Official Secrets Act, application, 117 Stockdale v. Hansard, 116, 120 Parliamentary debates, printing By order of either House, statutory privilege, 68 Command papers/Act papers, 68-70 Criminal proceedings, defendant, protection, 67-8 Early history, court decision, 63-5 Houghton v. Plimsoll, 69 Mangena v. Edward Lloyd Ltd„ 69-70, 72 Parliamentary Papers Act, 1840, provision, 66-70 Stockdale v. Hansard, 63-6, 69-70, 73 Parliamentary precincts Act of contempt within, treatment, 166-7 Defined, 175

403

United Kingdom-Cont.

Powers of House, penal jurisdiction, 195, 198, 207 Committed by House, Habeas Corpus Act, 1679, 213 Expulsion of Member, 212 History, origins, 195-7, 208-9 Privilege, powers and immunities Necessity, 311, 330-1, 336 Right to exclude strangers from House, 313-4 Proceedings in Parliament Control over, 314 Definition, scope, 94-8 Strauss case, 95-6, 103-4 Zircon Film Affair, 97 Historical review, 78-9, 98-9 Bill of Rights, 1689, 79, 86-7 Protestation of 1621, 78 R. v. Dangerfield, S.A. DeSmith interpretation, 79 Sir John Eliot case, 78 Question of privilege Ashby v. White, 277-9, 284, 301 Barnardiston v. Soame, 275, 277 Benyon v. Evelyn, 274-5, 279 Burdett v. Abbot, 280-1, 299, 321 Debate, 220 Earl of Shaftesbury, case, 276 Early history, 274 Elections, 277-8 Ferrers' case, 274, 280 Freedom from arrest, 274 Freedom of speech, 274 Jay v. Topham, 272, 276 Jurisdiction of, Parliament/court, 271-87, 296-8, 300 History, 271-9 Parliamentary Papers Act, 271, 296 Language impugning integrity of Member, 255 Member, misconduct, 244-5 Pepper v. Hart, 286 Practice, 217-8, 222, 262 R. u. Paty, 278, 284 Sir William Williams case, 276 Stockdale v. Hansard, 272, 280, 276, 281-5, 288, 293, 296-7, 301, 311, 316 Suits against Members, 274-5 Suits against Officers of Parliament, 276-7, 280-1 Suits against Returning Officers, 275, 277 Thorpe case, 273-4, 279 Reports, papers, votes, proceedings, publication Parliamentary Papers Act, 1840, 126 Stockdale v. Hansard, 125

404

Parliamentary Privilege in Canada

United Kingdom—Cont.

See History of Parliament in Canada; Privilege, powers and immunitiesOrigins—United Kingdom/Canada; Speaker's petition

United States see Proceedings in Parliament—Statements

Unparliamentary language, 242, 253 See also Question of privilege—Acts

Upper Canada see Powers of the House of Commons—Penal jurisdiction V Vezina v. Lacroix see Proceedings in Parliament—Statements

w Wallace v. A.G.B.C. see Question of privilege—Jurisdiction

Warrant see Powers of the House of Commons—Penal jurisdiction Wason v. Walter see Protection of Members—Criminal statements; United Kingdom—Freedom of speech

Witnesses see Committees of the Houses of Parliament; Court or tribunal—Non-Members; Freedom from arrest—Application; House of Commons—Proceedings; Powers of the House of Commons—Right to administer oath; Privileges, powers and immunities; Senate—Proceedings

Votes see Question of privilege—Acts Votes and Proceedings see instead Journals

Zircon Film Affair see United Kingdom—Proceedings of Parliament

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