Parliamentary privilege consists of the rights, powers and immunities to protect Parliament and ensure that its Members may fulfill their responsibilities without interference. Parliamentary privilege is an essential and vital element in the functioning of a modern, democratic Parliament. In the Canadian context, its application needs to be balanced with the Canadian Charter of Rights and Freedoms. This is because parliamentary privilege, like the Charter, is part of the general law and is in no way above it. They coexist, and neither privilege nor the Charter is subordinate to the other.
Parliamentary privilege is an essential and vital element in the functioning of a modern, democratic Parliament.
17.2Definition of Parliamentary Privilege
Erskine May provides the classic definition of privilege, which was first formulated in the 14th edition in 1946 and last updated in 2011:
Parliamentary privilege is the sum of certain rights enjoyed by each House collectively…and by Members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. Some privileges rest solely on the law and custom of Parliament, while others have been defined by statute. (25th ed., §12.1, p. 239).
In Parliamentary Immunity in Canada (2016), Joseph Maingot provides a more practical definition of parliamentary privilege:
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 — that is a matter involving parliamentary privilege. An offence against the authority of the House constitutes contempt. (p. 16).
Parliamentary privilege allows the Legislative Assembly and its Members to
Parliamentary privilege allows the Legislative Assembly and its Members to fulfill their constitutional functions — to deliberate, to legislate and to hold the government to account — without interference from the executive, the judiciary and others. Parliamentary privilege, being part of the general law, assists the Assembly and its Members in fulfilling their parliamentary duties.
Parliamentary privilege allows the Legislative Assembly and its Members to fulfill their constitutional functions — to deliberate, to legislate and to hold the government to account — without interference from the executive, the judiciary and others.
Parliamentary privilege is primarily, but not solely, exercised in the context of parliamentary proceedings. The meaning of parliamentary proceedings and whether something constitutes such a proceeding is left to the Legislative Assembly and, when applicable, to the courts. Erskine May provides a broad description of what is understood as a parliamentary proceeding:
The primary meaning of proceedings, as a technical parliamentary term, which it had at least as early as the seventeenth century, is some formal action, usually a decision, taken by the House in its collective capacity. While business which involves actions and decisions of the House are clearly proceedings, debate is an intrinsic part of that process which is recognised by its inclusion in the formulation of Article IX [of the Bill of Rights, 1689]. An individual Member takes part in a proceeding usually by speech, but also by various recognised forms of formal action, such as voting, giving notice of a motion, or presenting a petition or report from a committee, most of such actions being time-saving substitutes for speaking. (25th ed., §13.12, pp. 269-70).
In Canada, the courts have played a role in assessing the scope of a “proceeding in Parliament,” framing it in the context of the extent and the necessity of parliamentary privilege for the fulfillment of parliamentary duties. House of Commons Procedure and Practice explains:
The primary question asked by the courts is whether the claimed privilege is necessary for the House of Commons and its Members to carry out their parliamentary functions of deliberating, legislating and holding the government to account, without interference from the executive or the courts. In determining its existence and scope, the courts will first establish whether it can be demonstrated that the claimed privilege existed in Canada or the United Kingdom at the time of Confederation. If so, that ends the inquiry. If not, the courts may still conclude that the claimed privilege exists if it can be demonstrated by the House that such a privilege is necessary for Members to perform their parliamentary functions. (3rd ed., p. 76).
Extended interpretations of parliamentary proceedings have been recognized to encompass not merely the formal transaction of business in the Chamber or a committee, but also activities closely connected with or necessarily incidental to such transactions.
The Standing Orders acknowledge the seriousness of a potential breach of privilege, permitting Members to interrupt almost any business before the Legislative Assembly in order to raise a question of privilege.
STANDING ORDER 26
Whenever any matter of privilege arises, it shall be taken into consideration immediately.
17.3Historical Perspective on Parliamentary Privilege
Claims to parliamentary privilege date back centuries, to the earliest days of representative governance in England, when Parliament, and especially the House of Commons, struggled to assert its independence from the Sovereign. Over time, certain privileges were recognized with the consent of the Crown, such as the freedom from obstruction, while others were asserted by Parliament itself, such as the freedom of speech. As noted in Senate Procedure in Practice:
These latter privileges frequently went against the wishes of the Crown or at the very best enjoyed reluctant support and took many years, even centuries, to be fully enshrined and accepted. As such, parliamentary privilege as it exists today is a concrete expression of the independence of Parliament. (p. 230).
17.3.1Parliamentary Privilege in the United Kingdom
Throughout the 14th, 15th and 16th centuries, the privileges accorded to Parliament slowly evolved. During this time, the relationship between Parliament and the Crown was sometimes contentious, with the Sovereign violating the independence of the House of Commons, and even imprisoning some. This led to a practice where the Speaker of the House of Commons would petition the Sovereign to recognize the privileges claimed by the Commons. First recorded in 1523, this practice had become permanent by the end of the 16th century (see Erskine May, 25th ed., §12.4, pp. 242-5).
At the end of the 17th century, the supremacy of Parliament with its privileges was confirmed and solidified. Article IX of the Bill of Rights, 1689 codified some of the elements of parliamentary privilege. Over time, the enactment of the Parliamentary Privileges Act in 1737 and the Parliamentary Papers Act 1840 in the U.K. provided more codification and certainty of the privileges held by Parliament at Westminster.
To limit the risk of abusive claims of privilege, the English House of Commons recognized that parameters needed to be placed around privilege. Thus,386
…it was agreed [by resolution] in 1704, for example, that “neither House of Parliament hath any power, by any vote or declaration, to create to themselves any new privilege that is not warranted by the known laws and customs of Parliament. (Erskine May, 25th ed., §12.9, p. 254).
Following this understanding, no new claim of privilege beyond those already established has been sought by either House of Parliament in the U.K.
17.3.2Parliamentary Privilege Since Confederation
In Canada, at the time of Confederation, the federal Parliament was granted the authority to claim the privileges that were then in operation in the British House of Commons. The Constitution Act, 1867 (previously known as the British North America Act, 1867) entrenched not only a Westminster-style parliamentary system but also the historical privileges necessary for such a system to function. However, it was silent about any privileges the provinces possessed.
In February 1871, prior to British Columbia joining Confederation, the Legislature of the Colony of British Columbia enacted the provincial Constitution Act, 1871, with the intent that it come into effect upon the Colony joining Confederation later that year. Section 44 of the Act stated:
44 It shall be lawful for the Legislature of this Colony, from time to time, to define the privileges, immunities, and powers to be held, enjoyed and exercised by the Assembly, and by the members thereof respectively. Provided, that no such privileges, immunities or powers shall 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.
In 1872, British Columbia then enacted its first privilege act, entitled An Act to define the Privileges, Immunities, and Powers of the Legislative Assembly, and to give summary protection to persons employed in the publication of Sessional Papers. The Act was meant to assert and clarify the Legislative Assembly’s privileges. However, under threat of disallowance by the federal government, who contested the notion that the provincial Legislatures had the authority to legislate privilege, the Legislative Assembly repealed the Act in 1873, which was later re-enacted through the Legislative Assembly Privileges Act, 1892. Attempts by other provinces to do the same met a fate similar to British Columbia’s.
17.3.3Parliamentary Privilege in British Columbia Today
Today, parliamentary privilege in British Columbia is defined through provincial law and through our Canadian constitutional heritage. The provisions enacted in British Columbia’s Constitution Act, 1871 still exist today, by way of the provincial Constitution Act (R.S.B.C. 1996, c. 66), though under slightly modified wording. By virtue of section 50 of the Act, the Legislative Assembly and its Members claim the same privileges, immunities and powers as the House of Commons of the United Kingdom — as long 387 as the privileges were recognized in the U.K. House of Commons on February 14, 1871. This is also provided for in the Legislative Assembly Privilege Act (R.S.B.C. 1996, c. 259, s. 1), as outlined further in this chapter.
Moreover, based on the longstanding practice established back during the 16th century in England, where the Speaker of the House of Commons would petition the Sovereign to recognize the privileges claimed by the Commons, a similar ceremony takes place today in the Legislative Assembly. When first elected by Members, a new Speaker will address the Lieutenant Governor and will, on behalf of all Members of the Assembly, “humbly claim all their undoubted rights and privileges, especially that they may have freedom of speech in their debates.…” The Attorney General is then commanded to respond on the Lieutenant Governor’s behalf, and states that the Lieutenant Governor “grants, and upon all occasions will recognize and allow, their constitutional privileges” (B.C. Journals, September 8, 2017, pp. 24-5).
17.4Privileges of the Legislative Assembly of British Columbia
Recognizing that the provincial Constitution Act, 1871 included a provision that permitted the Legislative Assembly to define the privileges, immunities and powers that it holds, the Assembly proceeded to do so in the form of the Legislative Assembly Privileges Act, 1892, currently known as the Legislative Assembly Privilege Act. Privilege belongs to Members of the Legislative Assembly individually and collectively. Individual privileges are enjoyed by Members “only as a means to the effective discharge of the collective functions of the House” (Erskine May, 25th ed., §12.1, p. 239).
The Legislative Assembly possesses a number of collective privileges, and its Members possess a number of individual privileges.
The individual privileges include:
1. Freedom of speech and debate.
2. Freedom from arrest in civil actions.
3. Exemption from jury duty.
4. Exemption from attendance as a witness.
5. Freedom from obstruction, interference and intimidation.
The collective privileges include:
1. Access to the Crown.
2. To regulate its own proceedings and its own affairs.
3. To provide for its due composition.388
4. To punish for contempt and power to discipline.
5. To summon witnesses and call for papers and records.
6. Those privileges enumerated in the Legislative Assembly Privilege Act.
Parliamentary privilege does not exist for the personal benefit of Members; it exists to protect Members in the full exercise of their parliamentary duties on behalf of those they represent: their constituents. Members hold certain rights in elected office to allow them to discharge their functions without fear, and with the confidence and knowledge that they are protected from improper pressure and from impediment to personal freedom of speech and action. Collectively, it exists “in order to allow Members…to contribute effectively to the discharge of the functions of their House” (Erskine May, 25th ed., §12.1, p. 239).
17.5Contempt of Parliament
Closely related to the concept of a breach of privilege is that of contempt of Parliament. Contempt is an offence against the dignity and authority of Parliament. In defining contempt, Erskine May states:
Generally speaking, 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 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 of the offence. (25th ed., §15.2, p. 289).
Contempt does not necessarily fall among the specifically defined privileges outlined in this chapter. As opposed to privilege, contempt cannot be enumerated or categorized. The Legislative Assembly may treat as contempt any act or omission that, although not a breach of privilege, may obstruct the Legislative Assembly collectively in the performance of its functions. The rationale is that the Legislative Assembly must be able to protect itself from this kind of behaviour, as do courts. Contempt may not actually obstruct or impede the Legislative Assembly or a Member. It may merely have “a tendency, directly or indirectly, to produce such results” (Erskine May, 25th ed., §15.2, p. 289).
Contempt may vary greatly, ranging from minor breaches of decorum to serious attacks against the authority of Parliament, such as, for example, disobedience to a legitimate command of the Legislative Assembly, or libel against it, its Members or officers.
Contempt is an offence against the dignity and authority of Parliament.
Notable recent prima facie findings of contempt include the premature and unauthorized disclosure of a draft committee report before its tabling in the Legislative Assembly by a parliamentary committee (see B.C. Journals, April 2, 2002, pp. 61-2); protesters 389 interfering with proceedings of the Legislative Assembly, specifically during the Speech from the Throne (see B.C. Journals, March 24, 1993, pp. 11-2); a Minister alleged to have deliberately misled the House (see House of Commons (Canada) Hansard, March 9, 2011, pp. 8842-3; February 1, 2002, pp. 8581-2); and an officer of Parliament allegedly providing false testimony at a parliamentary committee meeting (see House of Commons (Canada) Hansard, November 6, 2003, p. 9229).
17.6Privileges Defined — Individual Privileges
17.6.1Freedom of Speech and Debate
Freedom of speech is perhaps the most important and controversial privilege, and this largely explains why it is so fundamental. Freedom of speech was one of the first historic privileges claimed by parliamentarians. It was explicitly asserted at least as early as 1523 — over a century and a half before it was formally declared in the Bill of Rights, 1689. This freedom was essential to preserve Members’ independence from interference from the Sovereign. In more modern times, freedom of speech allows Members to fulfill their role as legislators without fear of harassment, intimidation or risk of legal action. This privilege extends exclusively to what Members state in carrying out their parliamentary duties in the context of parliamentary proceedings. Joseph Maingot writes:
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. (Parliamentary Immunity in Canada, p. 26).
Freedom of speech is perhaps the most important and controversial privilege, and this largely explains why it is so fundamental.
In British Columbia, the privilege of freedom of speech is also codified in the provincial Constitution Act (s. 51(2)(a)): “An action at law or other civil proceeding must not be brought against a member of the Legislative Assembly for words spoken by the member in the Legislative Assembly.”
126.96.36.199Limitations and Responsible Uses of Freedom of Speech
While freedom of speech enables Members to fulfill their parliamentary duties without fear of intimidation or the risk of legal action, it does not provide blanket protection for statements made that are not related to parliamentary proceedings. Simply put, freedom of speech is not limitless or absolute. House of Commons Procedure and Practice notes:
The parliamentary privilege of freedom of speech applies to a Member’s speech in the House and other proceedings of the House itself, but may
not fully apply to reports of proceedings or debates published by newspapers or others outside Parliament. Parliamentary privilege may not protect a Member republishing his or her own speech separate from the official record. (3rd ed., p. 96).
It has been held in the Legislative Assembly that challenges to comments made by Members cannot be addressed by the Speaker in the absence of a record of those comments (see decision of Speaker Brewin, B.C. Journals, April 28, 1998, p. 44). This finding relates to proceedings in the Legislative Assembly, and not to a Member’s speech outside of the Legislative Assembly or to reports which could potentially constitute a breach or contempt if supported by evidence (see B.C. Journals, March 24, 1994, pp. 25-6; July 25, 1990, p. 130).
Because freedom of speech provides considerable immunity, it should not be misused. In many Commonwealth jurisdictions, Speakers have cautioned Members about its misuse. In a statement delivered to the Legislative Assembly, Speaker Sawicki noted (B.C. Journals, March 21, 1994, p. 18):
It is a delicate balance that every Speaker must strive to achieve — between respect for freedom of speech and the need to maintain order, between the rights of the majority to govern and the rights of the minority to be heard. In return, every Speaker must be able to rely upon all Honourable Members to be vigilant in their support of the institution itself.
Members should be mindful to not unfairly attack an individual’s reputation, particularly an individual who is not in a position to reply with a defence or rebuttal, specifically in the context of parliamentary proceedings. Speaker Milliken of the House of Commons of Canada stated (House of Commons (Canada) Hansard, April 2, 2003, p. 5040):
Speakers discourage members of Parliament from using names in speeches if they are speaking ill of some other person because, with parliamentary privilege applying to what they say, anything that is damaging to the reputation or to the individual, the reputation of the individual or the individual is then liable to be published with the cover of parliamentary privilege and the person is unable to bring any action in respect of those claims.
Speakers have also recognized that Members should be respectful of the sub judice convention when exercising their freedom of speech related to matters before a court. The sub judice convention is outlined in greater detail in Chapter 7 (Rules of Debate). In a decision, Speaker Scheer of the House of Commons of Canada noted (House of Commons (Canada) Hansard, March 27, 2013, p. 15293):
As Speaker, I must endeavour to find a balance between the right of the House to debate a matter and the effect that this debate might have. This is particularly important given that the purpose of the sub judice convention is to ensure that judicial decisions can be made free of undue influence.
Speaker Scheer further explained:
…in the case before us, while the sub judice convention does not prevent debate on the matter, the fact remains that the heart of this question of privilege is still before the courts, which have yet to make a finding. I believe that it would be prudent for the House to use caution in taking steps that could result in an investigatory process that would, in many ways, run parallel to the court proceedings.…
17.6.2Freedom from Arrest in Civil
Exemption from Jury Duty
Exemption from Attendance as a Witness
The freedom of arrest in civil actions was amongst the first privileges granted to parliamentarians. The use of this privilege predates its formal declaration in the Bill of Rights, 1689. This freedom comes from the notion that attendance in Parliament to deal with the Sovereign’s business took precedence over other obligations and was granted by the Crown. The underlying principle is that Members must not be prevented from carrying out their parliamentary duties. This historic right is consistent with Standing Order 8, which requires Members to attend the service of the Legislative Assembly, unless a leave of absence is granted.
The same underlying principle applies to other similar privileges. This includes exemption from attendance as a witness, either before a court of law or before another Parliament or a committee of another Parliament. It also includes exemption from jury duty. Members are also disqualified from serving as jurors by statute, as set out in the Jury Act (R.S.B.C. 1996, c. 242, s. 3(1)(e)).
This privilege of freedom of arrest only extends to civil matters; it does not apply to criminal matters. This freedom does not place Members above the law and only extends to arrest. Generally, it does not exempt Members from being subject to participation as a party in a civil process, unless it relates to the exercise of parliamentary functions. There are three exemptions to this provision, outlined in the provincial Constitution Act (s. 51):
51(2) An action at law or other civil proceeding must not be brought against a member of the Legislative Assembly for
(a) words spoken by the member in the Legislative Assembly, or
(b) introducing into or laying before the Legislative Assembly, without actual and express malice, any documents or papers.
(3) An action at law or other civil proceeding must not be brought against a member, or any person, because of the printing or publication of documents or papers printed or published by order of the Legislative Assembly or the Speaker.
These exemptions apply in limited circumstances and are closely intertwined with other privileges outlined in this chapter. While Members possess this privilege and may invoke it when summoned to appear before a court in a civil proceeding, they need not insist on this privilege in certain circumstances, and may choose to participate in such a proceeding.
The privilege of freedom from arrest in civil actions is not absolute. This immunity applies during a Session of the Legislative Assembly and 20 days before and after a Session, as set out in the Legislative Assembly Privilege Act (s. 5).
17.6.3Freedom from Obstruction, Interference and Intimidation
In order for Members to fulfill their constitutional duties properly, they need to be able to carry out their parliamentary business in an undisturbed manner, free from any interference, obstruction or intimidation. In practical terms, trying to prevent a Member from entering the Parliament Buildings, or intimidating Members in a way that prevents them from carrying out their duties in the context of parliamentary proceedings, could constitute a breach of this privilege.
The Legislative Assembly Privilege Act (s. 5(b)(c)) enshrines this freedom in law, by giving to the Legislative Assembly powers to inquire into and punish for
5(b) obstructing, threatening or attempting to force or intimidate members of the Assembly;
5(c) offering to or acceptance of a bribe by a member of the Assembly to influence the member in proceedings as a member or offering to or acceptance of a fee, compensation or reward by a member for drafting, advising on, revising, promoting or opposing a Bill, resolution, matter or thing submitted to, or intended to be submitted to, the Assembly or a committee of it.
The Act also provides this protection to officers of the Legislative Assembly. Section 5(d) extends the Assembly’s powers to inquire into and punish for “assaults on or interference with officers of the Assembly in the execution of their duty.”
In extreme situations, intimidation through an overt act is also punishable under the Criminal Code (s. 51): “Every one who does an act of violence in order to intimidate Parliament or the legislature of a province is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.”393
17.7Privileges Defined — Collective Privileges
17.7.1Access to the Crown
Access to the Crown is a medieval privilege claimed by the U.K. House of Commons, in an era when the lower house conducted its business at the pleasure of the Sovereign. The claim of this privilege is still reflected in proceedings of the Legislative Assembly at the opening of a new Parliament, following the Assembly’s selection of a Speaker. In addressing the Lieutenant Governor, the Speaker requests that the Assembly have “access to Your Honour’s person at all seasonable times.” The Attorney General responds on behalf of the Lieutenant Governor, stating: “I am commanded also to assure you that the Assembly shall have ready access to Her Honour the Lieutenant Governor upon all seasonable occasions…” (B.C. Journals, September 8, 2017, pp. 24-5).
Within the institution of Parliament, this access is granted in order to invite the Sovereign or the Sovereign’s representative, the Lieutenant Governor, to deliver the Speech from the Throne and to grant Royal Assent, officially enacting bills passed by the Legislative Assembly. This access may also be granted in an instance where the Legislative Assembly may wish to present an address to the Sovereign. Members who are part of the Executive Council enjoy access to the Crown by virtue of that appointment.
Erskine May notes that the right of access to the Crown “is a corporate privilege of the House; it is denied to individual Members” (25th ed., §12.6, p. 252), and is one exercised through the Speaker.
17.7.2To Regulate Its Own Proceedings and Its Own Affairs
In order for the Legislative Assembly to conduct its affairs without interference, it retains the privilege to be the master of its own business. This is fundamental to ensuring the independence of the Legislative Assembly. This privilege allows the Legislative Assembly to
…discipline its members, summon witnesses, exclude strangers and meet behind closed doors, control publication of its debates and proceedings, administer statute law relating to its proceedings, establish its own rules of procedure, and send for persons in custody. (Senate Procedure in Practice, p. 226).
One notable privilege that the Legislative Assembly possesses relating to its proceedings is the right to control the publication of its debates. The provincial Constitution Act also provides protection in this regard, in that
51(3) An action at law or other civil proceeding must not be brought against a member, or against any person, because of the printing or publication of documents or papers printed or published by order of the Legislative Assembly or the Speaker.
51(4) A suit in equity must not be brought to restrain the publication or printing of any papers or documents.
The U.K. Parliamentary Papers Act 1840 established the “right of Parliament to publish papers for distribution beyond its precincts immune from any civil liability, including defamation” (Senate Procedure in Practice, p. 227). In practical terms, in any civil matter, the courts are precluded from taking into consideration any evidence from an official record or an official report of the Legislative Assembly.
The assertion of this privilege may beg the question as to what constitutes a proceeding of the Legislative Assembly. As noted in section 17.2, Erskine May states:
The primary meaning of proceedings, as a technical parliamentary term, which it had at least as early as the seventeenth century, is some formal action, usually a decision, taken by the House in its collective capacity.… An individual Member takes part in a proceeding usually by speech, but also by various recognised forms of formal action, such as voting, giving notice of a motion, or presenting a petition or report from a committee, most of such actions being time-saving substitutes for speaking. (25th ed., §13.12, pp. 269-70).
The Legislative Assembly also retains the right to control access to the physical area where its proceedings take place. The conduct of strangers in relation to parliamentary proceedings is addressed in Standing Orders 23 and 24, further outlined in Chapter 6 (Order and Decorum).
17.7.3To Provide for Its Due Composition
The Legislative Assembly holds the right to ensure that its membership is properly constituted, in accordance to law. The Assembly retains exclusive jurisdiction over its Members, which Joseph Maingot states includes the
…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, to expulsion and to commitment to jail. (Parliamentary Immunity in Canada, p. 165).
A more common reprimand issued by a legislative body is a summons to appear at the Bar of the House. An individual may be summoned to appear at the Bar of the House to address an offence against the dignity of the Legislative Assembly, if the Assembly adopts a motion to that affect. Such a summons is an extraordinary occurrence, and one “which places the Member…under the authority of the House vested with its full disciplinary powers” (House of Commons Procedure and Practice, 3rd ed., p. 130).395
In recent history in British Columbia, an invitation to appear at the Bar of the House has also been used as a mechanism to recognize, honour or commend a certain individual or group (see B.C. Journals, October 22, 2015, p. 138; February 14, 2013, p. 15; May 1, 2012, p. 105; April 26, 2012, p. 103; November 21, 2007, pp. 148-9; October 15, 2007, p. 123).
188.8.131.52Potential Cases for Enforcement of this Privilege
Standing Order 8 requires Members to attend the service of the Legislative Assembly, unless a leave of absence has been granted. The requirement of attendance is also reflected in the declaration that Members are required to file in accordance with the Members’ Remuneration and Pensions Act (R.S.B.C. 1996, c. 257, s. 12). The Act also outlines the monetary penalties that are levied against a Member for non-attendance (s. 10). If a Member does not attend to their parliamentary duties, it would be within the powers of the Assembly to determine what sort of discipline to impose on the Member. Such a circumstance is rare, as it usually falls to a Caucus Whip to ensure the attendance of Members.
Sections 32 and 34 of the provincial Constitution Act are examples where the Legislative Assembly has codified in law circumstances in which a Member ceases to hold office. The Members’ Conflict of Interest Act (R.S.B.C. 1996, c. 287, s. 22) also outlines the penalties that the Legislative Assembly may impose on a Member upon a finding of the Conflict of Interest Commissioner that a Member has contravened that Act. The Legislative Assembly may either agree or disagree with the Commissioner’s recommendation for punishment; it cannot alter a recommendation or proceed with an alternative punishment. The most severe penalty outlined in the Act is a Member’s expulsion from office. Beyond these statutory provisions, the Legislative Assembly retains the power to discipline its own Members in a manner that it collectively sees fit.
Should a Member be found not qualified to sit and vote in the Legislative Assembly, per the requirements outlined in the provincial Constitution Act (further outlined in Chapter 3 (Members)), or should the Legislative Assembly expel a Member, the provincial Constitution Act (s. 35) sets out that the Speaker must issue and deliver to the Chief Electoral Officer a warrant for a writ for a by-election. The sanction of expulsion has never been applied in British Columbia.
184.108.40.206Motion Concerning the Conduct of a Member
Standing Order 39 provides that a Member who is the subject of a motion concerning their conduct is permitted to make a statement, remain in the Chamber during debate and vote in any resulting division.
STANDING ORDER 39
If any motion is made concerning the conduct of any Member, or his or her right to hold a seat, that Member may make a statement, remain in the House during the debate and, notwithstanding Standing Order 18, participate in any resulting vote.
17.7.4To Punish for Contempt and the Power to Discipline
In addition to the power to impose punishment on its Members, the Legislative Assembly possesses the ability to punish for contempt, and holds rights similar to a court in this regard. As noted earlier, generally, contempt is an offence against the dignity and authority of Parliament.
Joseph Maingot writes that this punitive power is used to “punish Members and non-Members for disorderly and disrespectful acts,” and the Assembly’s authority to act as a court enables it to “safeguard and enforce [its] necessary authority without the compromise or delay to which recourse to the ordinary courts would give rise” (Parliamentary Immunity in Canada, p. 179). Maingot further argues that anything that falls within the definition of contempt is subject to punishment.
The Legislative Assembly Privilege Act (s. 5) states:
5 The Legislative Assembly has the rights and privileges of a court of record to summarily inquire into and punish, as breaches of privilege or as contempt of court, without prejudice to the liability of the offender to other prosecution and punishment.…
The powers codified in the Act may be applied against any individual within British Columbia by way of a warrant issued by the Speaker acting on the direction of the Legislative Assembly. Like any order of the Legislative Assembly, a motion concurring in the punishment of a Member or non-Member is only valid in the Session in which it is adopted.
The right to punish Members and non-Members is also reflected in Standing Order 90, relating specifically to bribery and corrupt practices.
STANDING ORDER 90
If it shall appear that any person has been elected and returned a Member of this House, or endeavoured to so be, by bribery, or any other corrupt practices, this House will proceed with the utmost severity against all such persons as shall have been wilfully concerned in such bribery or other corrupt practice.
While it remains more likely that legal action would be initiated for a contravention of the provincial Election Act (R.S.B.C. 1996, c. 106), the Standing Order and the Legislative Assembly’s constitutional privileges nonetheless reflect the right of the Assembly to punish Members and non-Members.
The Legislative Assembly possesses penal powers similar to the U.K. Parliament. These powers were originally meant to be used as a means to prevent obstruction of Parliament’s work, while also providing a mechanism to address grave offences against Parliament without recourse to the courts. The last time that the Legislative Assembly 397 of British Columbia committed an individual to imprisonment was in 1917, when a witness refused to provide answers to a parliamentary committee and subsequently refused to provide answers to Members’ questions when called to testify at the Bar of the House (see B.C. Journals, April 18, 1917, p. 91).
In more recent history, the Legislative Assembly considered a motion to call an individual who published an editorial “defamatory of this House in that it attacks the character of one member, it is a slur on the integrity of a Committee of this House and its members, and it imputes improper motives to members of the House” to the Bar of the House to retract “defamatory statements and apologize therefor,” but the motion was not adopted (see B.C. Journals, March 10, 1952, pp. 41-2).
17.7.5To Summon Witnesses and Call for Papers and Records
The Legislative Assembly considers matters of public policy and financial expenditure, and also scrutinizes the executive branch of government. In fulfilling these roles, the Assembly has the power to launch inquiries and consult with witnesses, a power most often delegated to parliamentary committees. In order to ensure that the Assembly is able to carry out this business, it can summon witnesses and request the production of papers and records. The Legislative Assembly Privilege Act outlines this in section 2:
2 The Legislative Assembly may command and compel the attendance of persons or the production of papers and things before the Assembly or a committee of it, as the Assembly or committee considers necessary for its proceedings or deliberations.
This power is also set out in the provincial Constitution Act (ss. 53, 54) and is formally delegated to committees in the motion appointing the select standing committees of the Legislative Assembly that is moved at the beginning of each Session of a Parliament (see B.C. Journals, February 13, 2018, p. 12).
In most cases in B.C., witnesses willingly appear before parliamentary committees, by invitation. Should a more formal process be needed, a committee can adopt a motion to order or compel the witness to appear before it. This is done in accordance to Standing Order 72(1), which states:
STANDING ORDER 72
(1) Witnesses may be summoned to attend before any Committee of the House upon a motion to that effect being passed by the Committee.
The adopted motion then gives the Committee Chair the power to issue a warrant or subpoena, as provided for in the provincial Constitution Act (s. 53(5)).
Should an individual still refuse to appear before the parliamentary committee, fail to respond to the summons or not provide a reason for declining to appear that is deemed 398 acceptable to the committee, the committee may seek recourse from the Legislative Assembly. This is because a committee does not have punitive power, and must therefore request action from the Legislative Assembly collectively. For example, this could be done by way of a report that may outline the details of the situation and recommend a course of action for the Assembly to take. The report would subsequently be tabled and debated and, if adopted, would allow the Legislative Assembly to undertake any action set out in the report.
The power of Parliament to send for persons, papers and records is recognized as fundamental to its proper functioning. Parliamentary committees, in particular, may rely on an array of information and documents to assist them in their work. Such documents may be requested from individuals and from public officials, and must relate to the committee’s terms of reference. Documents are sometimes not provided in cases where legislation may prevent a public servant from doing so, where a business owner may deem such a production to place them at a competitive disadvantage, or under claims of solicitor-client privilege. House of Commons Procedure and Practice argues:
These types of situations have absolutely no bearing on the power of committees to order the production of papers and records. No statute or practice diminishes the fullness of that power rooted in House privileges unless there is an explicit legal provision to that effect, or unless the House adopts a specific resolution limiting the power. (3rd ed., p. 985).
In cases where a document is not produced at a committee’s request, the committee may adopt a motion requesting its production. If the document is still not produced, there are three possible courses of action available to the committee. The first is to accept the justification for refusal. The second is to seek a compromise, such as an in camera review of the document. The third is to report the matter to the Legislative Assembly to seek an order of the Assembly to produce the document. Should the document still not be produced, the Legislative Assembly may find the individual or entity from whom the document is being sought in contempt of the Legislative Assembly. In an unprecedented case, a government was once found in contempt of Parliament for failure to provide certain requested documents to a committee (see House of Commons (Canada) Hansard, March 9, 2011, pp. 8840-2).
In British Columbia, select standing and special committees are empowered by the provincial Constitution Act (ss. 52, 54) to administer an oath to witnesses. The administration of an oath to witnesses appearing before a committee is a rare occurrence. Regardless of whether or not a witness provides testimony to a committee under oath, if it is determined by a committee that it had been willfully misled or given false evidence by a witness, the committee may present a report to the Legislative Assembly outlining its findings, and potentially recommending that the Assembly take further steps, such as subject the witness to the penalties of contempt. Providing false evidence under oath subjects the witness to an additional liability of the penalty under law for perjury.399
The power to administer oaths to witnesses is not a historically claimed privilege of Parliament; rather, it stems from legislation adopted in the U.K. in 1871, and subsequently by the Parliament of Canada in 1876.
220.127.116.11Limitations — Power to Summon
The Legislative Assembly’s power to summon witnesses and to call for papers and records is only enforceable within the province. Certain individuals fall outside of the Legislative Assembly’s power to summon. This includes the Sovereign, the Governor General, the Lieutenant Governor and any sitting Member of the Senate or the House of Commons of Canada.
Precedent in other jurisdictions indicates that if a Member of the Legislative Assembly does not accept an invitation to appear before a parliamentary committee, it would be within the committee’s power to report the matter to the Assembly to decide what measures to take (see House of Commons Procedure and Practice, 3rd ed., p. 982). Members of the Legislative Assembly, including Ministers, are not frequently invited to appear before a parliamentary committee, though this does occur from time to time. More commonly, senior public servants, including Deputy Ministers, willingly accept invitations to appear, and make helpful and substantive contributions in support of committee inquiries.
17.8Procedure for Raising a Question of Privilege
Questions of privilege are serious, and are intended only to address a breach of the privileges held by the Legislative Assembly and its Members. Questions of privilege are not to be used as deliberate interruptions of business before the Legislative Assembly, and may not be used to challenge a Speaker’s ruling (see B.C. Journals, June 12, 1997, pp. 97-8).
Questions of privilege are serious, and are intended only to address a breach of the privileges held by the Legislative Assembly and its Members.
Invoking Standing Order 26, Members can use the term “privilege” loosely to gain the floor during proceedings of the Legislative Assembly to register complaints, to signal displeasure or to make pronouncements or assertions on various matters. The Speaker gauges the appropriate use of this provision, taking into consideration the context and circumstances, including the frequency of its use, the temper of the House and the spirit in which it is used.
The essential elements required when raising a question of privilege are:
1. A brief written statement of the matter is prepared by the Member. This statement, after being read, is handed to the Speaker. The guidelines about the content of the written statement require that it briefly inform the Legislative Assembly of the facts of the matter in question and that it cite relevant
authorities. The statement itself is subject to certain restrictions, as outlined by Speaker Sawicki as follows (B.C. Journals, July 21, 1993, pp. 193-4):
Our guidelines are stated at p. 36 of Parliamentary Practice in British Columbia (2nd ed.) and on the essential elements required is “a brief written statement on the matter, which the Member reads to the House.” This statement is intended to inform the House of the facts on which the matter if based, and in addition, any applicable authorities which may be of assistance to the Chair.
2. A copy of the offending article must be tabled (if applicable).
3. A copy of the motion the Member intends to move, should the Speaker find a prima facie breach of privilege has been established, must be tabled (see B.C. Journals, April 3, 1997, pp. 20-1; April 11, 1990, p. 20; June 25, 1982, p. 174; June 14, 1982, pp. 142-3; April 13, 1982, pp. 41-2; June 6, 1974, p. 231). The Member’s motion may be “ That the matter pertaining to (subject of the question of privilege) be referred to the Select Standing Committee on Parliamentary Reform, Ethical Conduct, Standing Orders and Private Bills” (see B.C. Journals, April 2, 2002, p. 62). However, in certain circumstances, a Member may propose an alternative motion relating to a question of privilege (see B.C. Journals, March 24, 1993, p. 12).
4. As a matter of practice and courtesy, Members are encouraged to give prior notice in writing to the Speaker of intention to raise a matter of privilege. This is consistent with Practice Recommendation 7, which also notes that such notice should be given within a reasonable time before raising the matter in the Legislative Assembly.
PRACTICE RECOMMENDATION 7
A Member wishing to raise a question of privilege should, as a matter of courtesy, give the Speaker notice in writing within a reasonable time before raising the matter in the House.
If the question of privilege being raised involves another Member or includes an allegation against another Member, that Member should be present when the question is raised (see B.C. Journals, June 26, 1991, p. 62).
If an article or document is tabled or quoted as a foundation of the question of privilege, the whole document must be produced, and not only part of it (see decision of Speaker Morrison, House of Commons (U.K.) Hansard, December 20, 1955, vol. 547, cc. 1858-62; December 19, 1955, vol. 547, cc. 1660-2). It has also been ruled that the passages of an article or document being complained of must be read to the Legislative Assembly as part of the Member’s statement on the question of privilege (see statement of Speaker Dowding, B.C. Journals, February 19, 1974, p. 28).401
17.8.1Raising a Matter at the Earliest Opportunity
A well-established requirement for raising a question of privilege is that it be done at the earliest opportunity. The question of privilege raised in the Legislative Assembly must have recently occurred, and must seek an immediate action or remedy from the Assembly, which would be sought upon the finding of a breach of privilege. A determination that the matter was not raised at the earliest opportunity is sufficient to deny a prima facie finding of a breach of privilege.
A well-established requirement for raising a question of privilege is that it be done at the earliest opportunity.
The necessity for raising a question of privilege at the earliest opportunity is examined in detail in a decision of Speaker Schroeder (B.C. Journals, November 26, 1981, pp. 15-17):
At the afternoon sitting on Wednesday, the 25th of November, the Honourable First Member for Victoria rose on a matter of privilege relating to an incident which occurred in the House on Monday, the 23rd of November.
The incident complained of related to remarks attributed to a visitor seated on the floor of the House during the opening day proceedings, which remarks were directed to the First Member for Victoria.
This House, as recently as March 6, 1980, has examined these rules in considerable detail when a matter of privilege was raised.
An examination of the authorities indicates that the Chair must direct its attention to two distinct areas when considering matters of privilege:
1. There must be compliance with the requisite rules to permit the matter of privilege to be brought forward and,
2. The actions or words complained of are examined to determine whether or not a prima facie case has been established.
In considering the actions and words complained of, it seems to the Chair that there is evidence of a prima facie case of breach of privilege, and were there not the necessity to consider the formalities relating to matters of privilege, the Member might now be called upon to move his motion. It must be clearly understood that the Speaker’s authority does not extend to deciding the question of substance, whether a breach of privilege has in fact been committed — a question which can only be decided by the House itself. (May, 19th edition, page 357).
The Chair must, however, consider the rules relating to matters of privilege. It is necessary that the matter be raised at the earliest opportunity and the proposed motion be tendered at the same time. The motion was properly tendered in accordance with the rule, so it remains to the Chair to consider whether this matter was raised at the earliest opportunity.
The offence complained of occurred on Monday the 23rd and the matter was raised in the House on Wednesday the 25th. The matter was also discussed by the Honourable Member with Mr. Speaker shortly before the House adjourned on Tuesday the 24th. The Honourable Member has observed in his remarks that it was not until the 25th he learned the identity of the person complained of, and therefore the matter had not been raised earlier. It seems to the Chair that the Member should have brought the incident to the attention of the House immediately to preserve his rights, and then pursued his investigation as to the identity of the party. This procedure would have conformed with the authority of this House, which states the proposition that a matter of privilege may be raised to satisfy the “earliest opportunity” rule, even though complete detail upon which the matter is based is not available at that time (B.C. Journals, July 9, 1980, p. 185). The matter complained of here, having occurred on opening day and being founded on privilege, should, in my respectful opinion, have been raised on the same day in accordance with our Standing Order 26, which reads as follows: “Whenever any matter of privilege arises, it shall be taken into consideration immediately.”
I would also refer all Honourable Members to the Journals of this House, July 6, 1981, which quote several decisions from the Parliament at Westminster: “A matter concerning an article in a newspaper published on May 6 was refused precedence because it was not raised till the 14th”; “A speech reported on a Saturday because it was not raised until the following Tuesday”; and “When provincial newspapers appear in London on the morning of issue, the complaint should be raised on the day of the issue.”
I would also refer Honourable Members to the Hansard report of the proceedings of this House of Thursday, May 21, 1981, when the Honourable Member for Skeena rose on a matter of privilege at 10 a.m. relating to a television newscast which he stated had been broadcast the previous evening, after the House had risen. In that instance, the Honourable Member for Skeena had clearly taken the first opportunity available to him to raise this matter of privilege.
Because a motion based on privilege is given precedence over the pre-arranged program of public business, strict compliance with the rules has invariably been required. I am unable to find any authority which would permit the Chair to allow this matter to proceed when it has been raised in the House on the second sitting day after the event complained of. Even had the matter been raised in the House at 2 p.m. on Tuesday the 24th, it seems to the Chair, based on the existing authorities, the matter would have failed to satisfy the “earliest opportunity” rule. There is no doubt that the onus on the Member raising a matter of privilege is a heavy one, but the Chair has no authority to relax these rules, even though the Chair may very well be satisfied that a prima facie case exists.
As noted in Speaker Schroeder’s ruling, a Member who wishes to raise a question of privilege is required to do so at the earliest opportunity. It is a strict requirement that the Speaker cannot relax, even when the Speaker believes that a matter raised by a Member may result in a prima facie finding of a breach of privilege. Speakers’ findings 403 to this effect are reflected in notable decisions in British Columbia (see B.C. Journals June 23, 1976, pp. 169-70; March 15, 1968, pp. 140-1) and in the House of Commons of Canada (see House of Commons (Canada) Hansard, June 7, 2018, p. 20486; October 29, 2001, pp. 6669-71; House of Commons (Canada) Journals, June 9, 1969, pp. 1136-8).
This criterion does not necessarily stipulate that the matter needs to be raised as soon as the breach of privilege occurred. It is acceptable to raise the matter as soon as a Member becomes aware of it. Indeed, it has been held that a matter that occurred in one Session can be addressed in a subsequent Session and that one Parliament may address a question of privilege or a contempt issue which occurred in another Parliament (see Erskine May, 19th ed., p. 161).
17.8.2Reserving the Right to Raise a Question of Privilege
Recognizing the onus that the earliest opportunity criterion places on Members wishing to raise a question of privilege, the Legislative Assembly has developed a procedure that is intended to minimize the impact of the earliest opportunity criterion. In using this procedure, a Member will rise and state: “I reserve my right to raise a question of privilege relating to (subject or matter).” No debate is permitted, and certain restrictions apply, including a prohibition from raising an argument or charges of wrongdoing (see B.C. Journals, March 23, 2004, pp. 49-50; July 15, 1996, pp. 29-31).
This procedure should only be used so that the Member can gather information necessary to raise the question of privilege, and the Member will be expected to do so promptly once this has been done. On occasion, Members have used this practice to register complaints, or to dispute facts and opinions raised by another Member. While this is not an acceptable use of this practice, whether it is allowed or not is subject to the Speaker’s discretion.
17.8.3Exceptions — Earliest Opportunity
18.104.22.168No Question of Privilege Raised on Pro Forma Days
It has been held that the full statement on a question of privilege cannot be made on a day when only pro forma matters are considered (Prorogation and Opening Day), but notice of an intention to raise a question of privilege can be given, so as to preserve the Member’s rights (see B.C. Journals, March 23, 2004, pp. 48-9; April 5, 1989, p. 167). While some procedural authorities suggest that the Member may be excused from not reserving their right to raise a question of privilege on a day when only pro forma matters are considered, it would be prudent for the Member to reserve their right, as outlined in section 17.8.2. However, a Member’s failure to act on a pro forma day to reserve their right to raise a question of privilege may not necessarily result in an unfavourable ruling from the Speaker (see decision of Speaker Richmond, B.C. Journals, March 23, 2004, pp. 48-9).404
22.214.171.124No Question of Privilege Raised During Certain Proceedings
While the provisions of Standing Order 26 provide that a question of privilege shall be taken into consideration immediately, it is not always practical to do so, even with the practice to reserve the right to raise the question at the earliest opportunity. While little precedent exists in British Columbia, it is noted in House of Commons Procedure and Practice that “Speakers have disallowed questions of privilege during Statements by Members, Question Period, the process of Royal Assent…and the taking of recorded divisions” (3rd ed., p. 144). Should a Member wish to reserve their right or raise a question of privilege, the Member should do so as soon as the noted proceedings have concluded.
17.8.4Determining Whether a Prima Facie Breach of Privilege Has Occurred
Once a Member has presented a question of privilege in the prescribed manner, the Speaker will listen to arguments and may also choose to hear from any other affected Member. As a courtesy, the Speaker may subsequently hear from the House Leaders of recognized caucuses and other Members within a reasonably brief period of time. Once the Speaker has heard the arguments, the matter is usually taken under advisement, in order to review the facts and evidence.
The role of the Speaker is to determine whether a prima facie breach of privilege exists.
The role of the Speaker is to determine whether a prima facie breach of privilege exists. Prima facie is a Latin term meaning “at first glance” or “on first impression.” Joseph Maingot outlines:
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. (Parliamentary Immunity in Canada, p. 202).
The Speaker’s role is simply to make a prima facie assessment. Once the Speaker has come to a decision based on the evidence presented, the Speaker’s decision is presented to the Legislative Assembly. There are two possible outcomes: that no prima facie breach of privilege occurred, in which case the matter is closed, or that a prima facie breach of privilege occurred. In the latter instance, the Speaker will leave it to the Legislative Assembly to vote on a motion to have the matter examined by a parliamentary committee, or, more rarely, to take corrective steps immediately.405
17.8.5Motion to Deal with a Case of Privilege
If the Speaker delivers a decision that concludes in a finding of a prima facie breach of privilege, the Member who raised the question of privilege will be asked to move a motion. A copy of this motion would have been submitted when the question of privilege was first raised. In most instances, the motion will be to refer the matter to a parliamentary committee for further examination. Speakers have ruled that further examination into a breach of privilege cannot proceed without such a motion (see B.C. Journals, April 3, 1997, pp. 20-1; April 11, 1990, p. 20; June 25, 1982, p. 174; June 14, 1982, pp. 142-3; April 13, 1982, pp. 41-2; June 6, 1974, p. 231).
Since the motion has already been tabled when the question was first raised, no other formal notice is required (see Beauchesne, 4th ed., §287, p. 237; see also decision of Speaker Johnston, Saskatchewan Journals, April 5, 6, 1950, pp. 118, 121).
126.96.36.199Form of the Motion
The motion proposed on a question of privilege must not state conclusions, and should task a parliamentary committee with making its own judgment on the merits of the case (see B.C. Journals, June 3, 1981, p. 178-9; June 7, 1982, p. 123-7). The motion must simply refer the matter of privilege to a parliamentary committee for further examination. The committee will be required to look into the matter further, and to report to the Legislative Assembly with a recommendation of an appropriate remedy to the breach of privilege.
In recent history in British Columbia, Members have proposed that the matter be referred to the Select Standing Committee on Parliamentary Reform, Ethical Conduct, Standing Orders and Private Bills. The Member’s motion may instead propose that a committee be appointed to examine the prima facie breach of privilege (see Bourinot, 4th ed., p. 55).
The Member’s motion may be “That the matter pertaining to (subject of the question of privilege) be referred to the Select Standing Committee on Parliamentary Reform, Ethical Conduct, Standing Orders and Private Bills” (see B.C. Journals, April 2, 2002, p. 62). However, in certain circumstances, a Member may propose an alternative motion relating to a question of privilege (see B.C. Journals, March 24, 1993, p. 12).
The motion presented by the Member is subject to the provisions of Standing Order 55. This means that it is a debatable, amendable and adjournable. It is also within the prerogative of the Member who moved the motion to request leave of the Legislative Assembly to withdraw the motion from consideration (see B.C. Journals, November 28, 1938, pp. 68-9; Saskatchewan Journals, April 11, 1968, pp. 191-2).406
17.8.6Report from Committee Examining a Breach of Privilege
A committee tasked with examining a prima facie breach of privilege may gather evidence and hear from witnesses in order to support its consideration of the prima facie breach and to prepare a report. The report of the committee may include recommendations to the Legislative Assembly on any reprimand or remedial action. Once the report is tabled in the Legislative Assembly, it is treated as any other committee report; it can be debated and amended, and debate on it may be adjourned. The report needs to be adopted by the Legislative Assembly before any recommendations outlined in it can be implemented.
In British Columbia, it has been determined that an unqualified apology is a full answer and fully satisfies the Legislative Assembly on a finding of a breach of privilege (see B.C. Journals, June 12, 1997, p. 88; June 5, 1997, p. 98). However, the Legislative Assembly retains the discretion to take other remedial actions, depending on the circumstances.
17.8.7Questions of Privilege Raised in Committees
Questions of privilege arising in committees should first be addressed by the committee, and not in the Legislative Assembly. Practice has been for the Speaker to not entertain a question of privilege arising from committee proceedings without the Legislative Assembly being in receipt of a committee report, placing the matter before the Assembly. This applies to parliamentary committees, Committees of the Whole and the Committee of Supply. This practice is clearly expressed in a decision of Speaker Barnes (B.C. Journals, June 14, 1995, p. 101):
…the Speaker quite properly has no knowledge of what transpires in a Committee of the House, nor are matters which occurred in the Committee of the House properly within the domain of the Speaker, unless such matters are brought to the House by way of a report from the Committee itself.
While the Chair of a committee has no authority to rule on a question of privilege that has occurred in committee, the Chair may entertain a motion that certain events that have occurred in committee that may constitute a breach of privilege be reported to the Legislative Assembly. As outlined in House of Commons Procedure and Practice:
The report should:
- clearly describe the situation;
- summarize the facts;
- provide the names of the people involved, if applicable;
- state that there may be a breach of privilege; and
- ask the House to take such measures as it deems appropriate. (3rd ed., p. 1060).
Figure 17-1: Consideration of a Question of Privilege