[ SkipToMainMenu ]

Inquiry No. 6 - Parliamentary Privilege

Honourable senators, I rise today to speak to Senator McPhedran’s Inquiry No. 6, which calls the attention of the Senate to various instruments and concepts to be explored as options for increasing accountability, transparency and fairness in the context of the Senate’s unique self-governance. This is an important and timely discussion, and I would like to thank Senator McPhedran for bringing this forward.

In my remarks, the matter that I will be focusing upon is parliamentary privilege. I will be talking about it, colleagues, from my current position as a truly non-affiliated senator. In making the decision to sit unaffiliated, I was aware that it would not be a simple transition, and I am not surprised by the second-class status that non-affiliated senators must adopt. As this small collective of senators does not fall under the purview of one of the main groups, we do not enjoy the same consideration that the majority of our colleagues do. But why should I have to go to another group to be treated fairly?

This fact is regrettable, especially as we — senators — are the masters of our own domain. Ironically, the right for senators to be self-governing and self-adjudicating is one of the rights associated with parliamentary privilege. This was made clear by the Senate’s Standing Committee on Rules, Procedures and the Rights of Parliament when they put forward an important 2015 discussion paper on Canadian parliamentary privilege in the 21st century.

Within this paper, the Rules Committee affirms that one such privilege senators enjoy is the Senate’s collective right to regulate their own affairs related to their debates and proceedings, also known as exclusive cognizance.

Honourable senators, Canada’s Parliament adopted the concept of parliamentary privilege from the U.K. This can be found within section 18 of the Constitution Act, 1867, which reads:

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.

As such, it is clearly established that senators and members of Parliament are intended to enjoy similar privileges as those in the U.K.’s House of Commons.

Colleagues, when considering the broad umbrella of parliamentary privilege, there are a number of rights and immunities that fall under this purview. These privileges are broken down into two categories: corporate privileges and individual privileges. Corporate privileges include the right to regulate our own affairs and the power to discipline. Individual privileges include freedom of speech, freedom from arrest and civil actions and exemption from jury service. As I make my remarks, I would like to put forth and challenge each of you to contemplate whether our collective actions toward, and our treatment of, non-affiliated senators constitute an infringement of their privilege.

Honourable senators, during Canada’s Thirtieth Parliament, the Special Committee on Rights and Immunities of Members was struck to consider matters surrounding privilege. That committee found that the purpose of privilege was to allow members of the House of Commons to carry out their duties, as representatives of the electorate, without undue interference. Although it was a House committee, that assertion holds true for senators, as we hold the same privilege.

That exact sentiment is reflected in the very first line of the Rules Committee’s 2015 paper on parliamentary privilege, which stated:

Parliamentary privilege, an essential component of parliamentary democracy, exists to enable Parliament to function effectively and efficiently without undue impediment.

It is within this context that we must view privilege: as rights and immunities, held individually and collectively, that enable us to function as parliamentarians.

In 1999, the U.K. Joint Select Committee on Parliamentary Privilege considered the necessity test — a concept that holds that an exercise of privilege must be necessary for the contemporary conduct of parliamentary functions. That 1999 U.K. joint committee expressed necessity in terms of Parliament’s needs in order to fulfill its constitutional role. Parliament and its members need certain rights and legal protections in order to carry out their essential public duties of scrutinizing legislation, enacting laws and holding the executive to account.

In the Canadian context, the Supreme Court of Canada’s 2005 case, known as Canada (House of Commons) v. Vaid, considered the application of privilege. In his ruling, Justice Ian Binnie articulated a test of necessity that needs to be met to sustain a claim of privilege, focusing on the “purposive connection” that must exist between the claimed privilege and the fulfillment by the member, or the assembly, of its function as a legislative and deliberative body.

Yet, as our Rules Committee astutely pointed out in their 2015 paper, this necessity test is limited by its very design. As the committee wrote:

. . . the test provides a dynamic means to determine the parameters, or scope, of privilege. On the other hand, determining the contents and exercise of privilege remains the bastion of parliament, and parliamentarians.

Honourable senators, as members of our 2015 Rules Committee argued, determining the contents and exercise of privilege remains a bastion of parliamentarians, and determining this exercise must be “more in keeping with the ultimate accountability of a democratic legislature . . . .” In other words, as self-adjudicators, we define infringements of privilege.

As the Rules Committee’s 2015 paper on privilege states:

The Committee posits that the exercise of parliamentary privilege should . . . “be informed not only by history, but by a vision of the relationship between the legislative branch and its constituents that is in keeping with the democratic values of today and that is responsive to public expectations for accountability, transparency, natural justice and respect for human rights.

Colleagues, to further this critical point of how we view and approach privilege, I would like to refer to a 2012 letter that was jointly written by five Canadian senators to New Zealand’s House Privileges Committee. In that letter, the Canadian senators spoke of the “living tree” doctrine, used in constitutional interpretation, in keeping with a view that sees parliamentary privilege not as static and immutable, but as an adaptable component of Parliament designed to better ensure its ability to function properly and effectively — with minimum infringement on the legitimate rights of others.

Honourable senators, it is this dynamic, living-tree view of privilege that is needed to ensure that infringements are duly addressed when we parliamentarians become unable to fulfill our senatorial duties due to forces outside of our control. For it is forces and decisions beyond the control of non-affiliated senators, in which they have no voice, that are working to place non-affiliated senators in a place of severe deficit. I would like to bring some of these barriers to light for all to know.

Non-affiliated senators do not have a presence at scroll that allows them to be forceful advocates. While we’re very grateful to our officials from the Chamber Operations and Procedure Office who convey our speaking intentions at scroll meetings, we do not have an equitable seat at the table, wherein non-affiliated senators’ items are forcefully spoken for as is done by each group or caucus’s scroll representative. Similarly, non-affiliated senators are not granted slots to make Senators’ Statements. We must rely on members of the established groups to cede their time to us. The same is true for ministerial Question Period, where non-affiliated senators are not given an equal opportunity to question the government and hold them to account. On multiple occasions, non-affiliated senators have requested a spot to speak but have not been called upon to ask a question before time expired.

Non-affiliated senators are also not consulted with or informed of decisions taken at leaders’ meetings. While these are informal and ad hoc, they result in consequential decisions for the Senate, including everything from programming motions to decisions surrounding hybrid sittings. While most other senators have an indirect voice in these matters via their respective leaders, non-affiliated senators have no such voice. While most other senators are informed of the decisions taken on these matters, non-affiliated senators are kept in the dark.

All of these matters converge in a very profound way to keep a very small collective of senators consistently unprepared and ill-advised on Senate sittings. They have also proven to be a dangerous barrier in representing those we are appointed to serve.

By not being able to equitably participate in Senate proceedings and decision-making processes, as well as being unable to participate equitably in meaningfully holding the government to account via ministerial Question Period, the untenable situation non-affiliated senators are confronted with has come to represent a serious infringement on our collective privilege as it has on numerous occasions had an adverse impact on our ability to fulfill our senatorial duties.

Honourable senators, as our Rules Committee indicated in a 2015 paper on parliamentary privilege:

. . . to properly and effectively perform parliamentary and representative functions, a member must be able to operate without fear of undue interference or . . . obstruction . . .

The committee expanded on this to say that while it is impossible to codify all such instances, any attempts to obstruct, impede, interfere, intimidate or otherwise bother parliamentarians are often considered to be breaches of privilege. The Rules Committee’s 2015 paper went to indicate:

It goes without saying that parliamentarians must be able to function in a climate free from obstruction, interference, and intimidation in order to serve effectively.

Our Rules Committee further wrote:

With respect to non-physical acts that can be considered obstruction . . . the Subcommittee is of the opinion that procedures should exist and be enforced to ensure that the dignity of Parliament is not undermined.

Honourable senators, I ask you again to reflect on the minority voice of the non-affiliated senators and whether the status quo is acceptable. For if it is not, it’s incumbent on senators, as masters of our own domain, to challenge such injustice.

I will close with more wise words from the Senate Rules Committee’s 2015 paper:

It is expected that Parliament will be transparent, accessible, and accountable to the public, and reflect contemporary norms of natural justice and procedural fairness.

Canadians expect Parliament to conduct itself in a manner appropriate to its role. A contemporary, Canadian interpretation of parliamentary privilege can help facilitate and protect the work of parliamentarians, while helping to instill pride in the institution throughout Canada and the Commonwealth.

Back to: Speeches