Parliamentary Privilege - Parliamentary Privilege in Canada

Parliamentary Privilege in Canada

In Canada, the Senate and House of Commons and provincial legislative assemblies follow the definition of parliamentary privilege offered by the British parliamentary authority, Erskine May's Treatise on The Law, Privileges, Proceedings and Usage of Parliament, which defines parliamentary privilege as "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 function... the privileges of Parliament are rights which are absolutely necessary for the due execution of its powers. They are enjoyed by individual Members, because the House cannot perform its functions without unimpeded use of the service of its Members, and by each House for the protection of its members and the vindication of its own authority and dignity." Parliamentary privilege can therefore be claimed by Members individually or by the House collectively.

The rule for when parliamentary privilege applies is that it cannot exceed the powers, privileges and immunities of the imperial parliament as it stood in 1867, when the first constitution was written.

Individual parliamentary privileges include:

1. Freedom of speech
2. Freedom from arrest in civil action
3. Exemption from jury duty
4. Exemption from appearing as a witness
5. Freedom from obstruction, interference, intimidation and molestation

Collective parliamentary privileges include:

1. Power to discipline
2. Regulation of the House’s internal affairs
3. Management of Employees
4. Authority to maintain the attendance and service of Members
5. Right to institute inquiries and to call witnesses and demand papers
6. Right to administer oaths to witnesses
7. Right to publish papers containing defamatory material

The Supreme Court of Canada has previously dealt with the question of parliamentary privilege in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly). In that case, the Court made these observations about parliamentary privilege:

“Privilege” in this context denotes the legal exemption from some duty, burden, attendance or liability to which others are subject. It has long been accepted that in order to perform their functions, legislative bodies require certain privileges relating to the conduct of their business. It has also long been accepted 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.

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. 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.

Recent cases of parliamentary privilege in Canada adjudicated by the courts include:

1. 1993: New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), where the courts held parliament could restrict who could enter the parliamentary precincts.
2. 1999: Zundel v. Boudria, et al., where the courts held parliament could restrict who could enter the parliamentary precincts.
3. 2001: Ontario (Speaker of the Legislative Assembly) v. Ontario (Human Rights Commission), where the courts held the actions of the provincial legislative assembly were immune from review by other government bodies including the Human Rights Commission.
4. 2005: Canada (House of Commons) v. Vaid, where the Supreme Court of Canada analyzed the scope of parliamentary privilege and the role of courts in deciding its existence.