Parliamentary Privilege in Canada [Second edition] 9780773567139

Table of contents :
Cover
Title
Copyright
Dedication
TABLE OF CONTENTS
PREFACE
CHAPTER 1 Introduction
Under the French Regime
Under the British Regime
Historical and constitutional basis of parliamentary privilege in Canada
Principal subject of text — Privileges of House of Commons
Position in the provincial legislatures
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
Proceedings in Parliament
Other privileges
Householder mailings
Jurisdiction to adjudicate privilege
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
Persons engaged in a proceeding of Parliament are also protected
Breach of privilege
Contempt of Parliament
Corporate privileges and individual privileges
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?
CHAPTER 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
In Canada
• In the Houses of Parliament
• Roman Corp. v. Hudson's Bay Oil & Gas Co.
• In the provincial legislatures
Freedom of speech and the criminal law
• 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
• Abingdon Case (1794)
• Creevey Case (1813)
• Wason v. Walter (1868)
Protection of the common law
Publication for the use of Members only
• 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
• Full debate receives absolute legal privilege
• Extracts attract qualified legal privilege
In Britain
• Distinction between Hansard or Debates and Reports, Papers, Votes, or Proceedings
• Common law protects debates — Statute law protects papers and reports
• Onus of proof
In Canada
• Common-law protection of media reporting debates
• Statutory defence for media reporting debates
• 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.
• Stockdale v. Hansard
• First legal action in 1836
• Decision in Stockdale v. Hansard resulted in Commons inquiry
• Result of inquiry
• Second legal action
• Judgment of the court respecting publication of proceedings and debates
• U.K. Parliamentary Papers Act, 1840 as a direct consequence of Stockdale v. Hansard
• Section 1 of the Act — full report has full protection
• Section 2 of the Act — copy of full report has full protection
• Section 3 of the Act — extract or abstract of report has qualified protection
• Statutory privilege distinguished from common-law privilege
Command papers and Act papers
Conclusion
The position in Canada
• Parliament of Canada Act, s. 7-9
No federal statutory protection for broadcasting extracts of parliamentary papers — there is provincial statutory protection
Protection provided only where House orders publication
• Journals (formerly "Votes and Proceedings"— see supra, note 37)
Reports and papers
Householder mailings
CHAPTER 5 Proceedings in Parliament
Bill of Rights, 1689
What it constitutes
Historical interpretation
Must be necessarily incidental to House or committee proceedings
The technical parliamentary sense
As opposed to speeches in House or committees
Covers voting, moving amendments, asking questions, oral and written, giving notice, presenting a petition
The view of the courts
Member must be exercising functions as a Member in House or committee business
Official capacity is wider than acting in a proceeding in Parliament:
• A.G. Ceylon v. de Livera
Acts of Members done in official capacity may extend beyond parliamentary work and will receive no protection
• A private act or conversation during a proceeding but unrelated to a proceeding is not a proceeding in Parliament
• Roman Corp v. Hudson's Bay Oil & Gas Co.
• Dowson v. The Queen
A Member of Parliament has no parliamentary privilege when repeating outside what he said in the House
• Vezina v. Lacroix (1936)
• Stopforth v. Goyer (1978)
• Re Ouellet (1976)
• R. v. Bunting (1885)
The view of the Houses of Parliament
• The Strauss case
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
Courts also take judicial notice of the existence of any distinct practice and procedure of the House
Journals of the House as evidence
• Why Journals entries may be relevant
• Common informer actions
• Civil or criminal prosecution
Position in the U.K.
• Chubb v. Salomons (1851)
• Forbes v. Samuel (1913)
• Tranton v. Astor (1917)
• Journals entries must be certified as true copies of original
Position in Canada
• Journals entries may be evidence without further proof of facts stated therein
• Summary with respect to the Canadian position of the Journals and proceedings in Parliament as evidence in court
• The position in Canada with respect to returns to orders as evidence
• 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
• 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
Originally included Members' chattels and servants, and protected the Member from being impleaded
Members not protected from civil process except civil arrest
• Included in Lower and Upper Canada for their Members, 1791
• Continued after 1840
• Became part of privileges of Members of both Houses in 1867
Duration of the privilege
• Commencement — 40 days before session
• Continues for 40 days after end of session
Extent of the privilege of freedom from arrest
• Extends only to civil matters
• Does not include criminal offences
• Does not include quasi-criminal offences
Contempt of court
• Member is protected from civil contempt
• Member is not protected from criminal contempt
• House to be informed
Privilege of not being required to attend as a witness
Privilege of exemption from jury service
Privilege extended to persons not members
Officers of the House of Commons and Senate
Witnesses and others
Summary: Freedom from arrest and related matters
CHAPTER 10 Parliament Hill and the Precincts of the Houses of Parliament
Dictionary definition of "precincts"
What they are
Where they are
Not a sanctuary
Library of Parliament
Contemptuous acts done within precincts on a sitting day treated as if done in the face of the House
Position of U.K. Commons
Canadian position
Service of civil process on a sitting day could amount to contempt
Title to Parliament Hill
Management, care, and control of the Parliament Buildings
Each House administers its own affairs
Traffic control and negligence on the roadway on Parliament Hill
The police and the precincts on the House of Commons
Function of precincts is "sacred"
Police may not come onto precincts uninvited when on official business
Grounds of Parliament Hill are not part of the precincts
Precincts in U.K.
Precincts in New Zealand
Precincts in Australia
Access to the precincts
CHAPTER 11 The Corporate Rights, Privileges, and Powers of the Senate and of the House of Commons
Introduction
Power to discipline
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
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
• Nova Scotia House of Assembly, 1758, 1829
• Lower Canada Legislature, 1794
• Upper Canada Legislature, 1812
• Opinion of law officers of the Crown, 1815
• McNab v. Bidwell (1830) (Upper Canada)
• Re Tracey and Duvernay (1832) (Lower Canada)
• Kielley v. Carson (1842) (Nfld.)
• Ex parte Lavoie (1855)
• 1867 to the present
• Ex parte Cotte and Duvernay (February 9, 1875)
• Ex parte Dansereau (February 17, 1875)
• Ex parte Cotte and Duvernay (February 20, 1875)
• Landers v. Woodworth (1878)
• R. v. Bunting (1885)
• Fielding v. Thomas (1896)
• Position of the provincial legislative assemblies
• 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
Punishment imposed on Members
Commitment and habeas corpus
In the U.K
In Canada
• 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
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
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
• Thorpe's Case (1452)
• Ferrers' Case (1542)
Suits Against Members
• Benyon v. Evelyn (1664)
Suits Against Returning Officers
• Barnardiston v. Soame (1674)
Effect of Speaker's Warrants v. Habeas Corpus
• Earl of Shaftesbury (1677)
Speaker Acting in Pursuance to an Order of the House
• Sir William Williams (1684)
Suits Against Officers of Parliament
• Jay v. Topham (1689)
Suits Involving Elections
• Ashby v. White (1703)
• R. v. Paty (1704)
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
Other named privileges or powers
(a) Freedom of Speech
(b) Control over internal proceedings
• Control of Publications of Debates and Proceedings
Relevance of Judicial Deference
1. The courts determine the existence, extent and scope of a parliamentary privilege but have no power to regulate its exercise.
2. Is all Constitutional Power Conferred on the Executive and Legislative Branches Subject to and Diminished by the Charter?
3. Definition of "Necessary"
4. In the Event the Charter is Applied
5. Is Section 18 of the Constitution Act, 1867 the Source of Parliamentary Privilege?
6. Freedom of Speech Under the Charter and the Penal Power
7. The Penal Power — Penal Jurisdiction
Summary and Conclusion
Summing Up
I. Penal Power
II. Judicial Deference
In a Nutshell
APPENDIX
THE BILL OF RIGHTS, 1689
THE PARLIAMENTARY PAPERS ACT, 1840
CONSTITUTION ACT, 1867
CONSTITUTION ACT, 1982
PARLIAMENT OF CANADA ACT
BIBLIOGRAPHY
TABLE OF CASES
INDEX

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