Parliamentary Privilege / Rights of Members

Interference with Members—intimidation and immunity: Member’s right to be exempt from attendance as a witness in a court of law during a parliamentary session; service of a subpoena within parliamentary precincts; communications between Members of Parliament and members of the public

May 19, 1989

Debates, pp. 1951-3

On April 4, 1989, Mr. David Kilgour (Edmonton Southeast) rose on a question of privilege regarding Members’ immunity from giving evidence in civil trials against their will. He explained that he had been ordered to appear in a civil proceeding in the Supreme Court of British Columbia and an attempt had been made to force him to identify certain individuals who had visited his constituency office. Mr. Kilgour argued that the same privilege afforded to solicitor-client communications should extend to communications between a Member of Parliament and his or her constituents because he declared, “it is important that Canadians know they can come to us in our offices and speak to us in confidence and not later have that matter forced out of us in a court of law.”^[1] The Speaker reserved on the matter and returned to the House on May 19, 1989 to deliver the ruling reproduced in extenso below.

Decision of the Chair

The Speaker: On Tuesday, April 4, 1989, the honourable Member for Edmonton Southeast raised a question of privilege and, in addition, provided the Chair with certain related material.

The facts are as follows:

On March 14, 1989, a subpoena signed by a Judge of the Supreme Court of the Province of British Columbia was served upon the honourable Member for Edmonton Southeast in his Centre Block office. Your Speaker’s permission was neither sought nor obtained for this service. Shortly after being served, the honourable Member contacted Mr. Marcel Pelletier, the Law Clerk and Parliamentary Counsel of this House who wrote to the counsel for the plaintiffs in this civil action explaining that a sitting Member of Parliament enjoys the privilege of exemption from attending as a witness in a court of law and concluded in pointing out that: “This privilege is based on the paramount right of Parliament to the attendance and service of its Members.”

Although Parliament was prorogued from February 28 to April 3, there can be no doubt that the Member’s immunity persisted throughout this period. In this connection, I refer honourable Members to May’s Twentieth Edition, page 107, and to Bourinot, Fourth Edition, pages 45 and 46.

In further correspondence via facsimile machine between the honourable Member and counsel for the plaintiff, the honourable Member for Edmonton Southeast wrote that he would, as a former member of the Bar of British Colombia, appear if the judge insisted. The counsel for the plaintiff replied that indeed the judge insisted, relying on the Member’s previous statement, and ordered him to appear on March 31st or to have counsel appear on his behalf on March 30th. The honourable Member responded to this last [missive] by appearing before the court on March 31st.

On April 4 he explained to the House what happened in the statement found at page 39 of Hansard:

Appearing in court as ordered, I attempted to convince Her Lordship that an irresistible force was colliding with an immovable object. The court eventually ordered me to be sworn, and thereafter in effect directed me to reply to a question to identify a number of individuals who had come to my constituency office in April of 1986.

The court adjourned for lunch when I declined to identify those persons. On reconvening, Her Lordship again indicated I should identify my visitors, but counsel for the plaintiff withdrew the subpoena…just before the court ruled on the contempt citation. Her Lordship later said that she had intended to cite me for contempt.

I have just quoted what the honourable Member said in argument before me.

From this sequence of events, the honourable Member claims that his privileges have been infringed.

There are two issues I wish to deal with before turning to the question raised by the honourable Member.

First, I feel that the service of the subpoena within the precincts of the House of Commons was improper without the permission of the Speaker.

Some hon. members: Hear, hear!

The Speaker: The precedents supporting this view are quite numerous, and it is unnecessary for me to cite them. Honourable Members should not, on their own accord, decide to accept service within the precincts. Nevertheless, if they wish to waive their parliamentary immunity, they can do so by leaving the precincts and accepting the service elsewhere. To do otherwise is to put at risk our ancient privileges, which are more than simply tradition. They are part of the law of Canada.

The Chair is concerned that erosion over time of those privileges would not serve this institution’s interests. I could add, nor would it serve the public interest. Our privileges exist to enable Members to perform their duties without let or hindrance and, by extension, to protect the rights of the public they serve and represent.

Second, I would warn and caution those who attempt to further improper service of subpoena, that they may be acting in a manner that is in contempt of the House. In this respect, I refer honourable Members to the first issue of the Minutes of Proceedings and Evidence of the Special Committee on Rights and Immunities of Members presented to this House on July 12, 1976, where at page 1:19, Members will note that a Committee of the British House found it a contempt of Parliament to do something that has the object “…of furthering legal proceedings…” which are improper ab initio.

The basis of the honourable Member’s submission is that where civil actions are concerned, Canadians should know that they can speak to Members of Parliament in confidence without fear of later disclosure in a court of law. While appreciating the honourable Member’s point, I have had difficulty in finding a precedent to support the view that communications between an MP and his or her constituents or, indeed, the public in general, are privileged in the same way as those between lawyer and client.

Speaker Lamoureux in a ruling of April 29, 1971, had this to say:

Privilege is that which sets honourable Members apart from other citizens giving them rights which the public do not possess. I suggest we should be careful in construing any particular circumstance which might add to the privileges which have been recognized over the years and perhaps over the centuries as belonging to [Members of] the House of Commons. 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.^[2]

This view was reinforced on February 20, 1975, by Speaker Jerome, who made the following comment:

The consequences of extending that definition of [parliamentary] privilege to innumerable areas outside this Chamber into which the work of an MP might carry him, and particularly to the great number of grievances he might encounter in the course of that work, would run contrary to the basic concept of privilege.^[3]

On this last point I would also refer honourable Members to my ruling on November 17, 1987 where I explained that the House cannot, in fact, create new privileges.

Perhaps an argument could be made that to be forced to testify in a court of law on a matter concerning confidential communications with constituents amounts to an undue influence, thus hindering the Member in the proper fulfilment of his duties. This argument might be easier to sustain if the honourable Member had availed himself of the remedy available to him. He could have declined to appear as a witness, as he was entitled to do by virtue of his privilege as a Member of Parliament. By waiving his privilege, appearing, being sworn and answering some questions, he appears to have voluntarily submitted to the jurisdiction of the court. Once this privilege is waived, the Member surrenders the protection implicit in it.

Consequently, I am unable to find from these previous declarations or in the facts as set out in this present situation anything that would allow for the extension of parliamentary privilege to communications between Members of Parliament and members of the public.

There is another aspect of this matter which disturbs me very much. In the supporting documentation supplied to me by the honourable Member it is clear that counsel for the plaintiffs in this case questioned the right of the honourable Member to claim his parliamentary immunity, alleging that this was a matter for the court to decide. This claim was made in total disregard of what was established and easily verifiable parliamentary law, clearly and explicitly explained by the Law Clerk and Parliamentary Counsel in his letter of March 15.

Let me state for the record that the right of a Member of Parliament to refuse to attend court as a witness during a parliamentary session and during the 40 days preceding and following a parliamentary session is an undoubted and inalienable right supported by a host of precedents.

The honourable Member did not base his complaint on the contents of the letter written by counsel for the plaintiffs in the case concerned. Had he done so, I would certainly have had to determine whether or not there was a prima facie case of contempt of Parliament, of undue pressure being brought to bear upon the Member for the purpose of questioning his right to claim parliamentary immunity. Fortunately, counsel for the plaintiffs withdrew the subpoena, and the matter did not proceed further.

To sum up, on these facts I am unable to find that the protection of parliamentary privilege extends to communications between Members of Parliament and the public. I must also warn honourable Members that waiving of a privilege deprives them of the protection they would otherwise enjoy, not simply partially, but totally. I am gravely concerned that the subpoena was served on a Member of this House within parliamentary precincts. I would appeal to my colleagues, should this occur in the future, to refuse to accept any writ of summons within the precincts and to report to the Speaker should such an attempt be made.

Finally, I take a serious view of the action of a member of the legal profession in questioning the right of a Member of Parliament to claim immunity from appearing as a witness and alleging that a court, and not Parliament, had the power to make a determination in such a case.

I want to thank the honourable Member for Edmonton Southeast for his patience in allowing the Chair time to reflect at length on the important issues he raised in the House.

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1989-05-19