This entry is part 5 of 9 in the series Vol 49 No. 1 (Spring)

Privilege in Practice: Queen’s Park Perspectives on Parliamentary Privilege

Parliamentary privilege refers to immunities and rights necessary for Parliament and legislative assemblies, as institutions, and their Members, as representatives of the electorate, to fulfill their functions without interference. As a set of fixed legal powers, parliamentary privilege is necessary to protect legislative institutions, elected Members, committees, and all those involved in parliamentary proceedings. Without these protections, Members may face limitations or be obstructed in performing their parliamentary duties of legislating and debating. Additionally, without privilege, the role of legislative institutions as a forum for representing citizens’ concerns would be severely undermined. The rights and immunities exercised by a legislative institution depend on the constitutional context. Jurisdictions across the Commonwealth outline the protection of this ancient parliamentary right in different ways. Ontario, for example, has partially codified its understanding of parliamentary privilege, partly due to historical doubts regarding the constitutionality of provincial legislatures’ right to legislate their own privileges. In this article, the author explores whether there is interest within the Legislative Assembly of Ontario in further asserting, clarifying, or modernizing how it outlines privilege. This research further considers how legislative assemblies can ensure that the protections of privilege meet the needs and expectations of their Members and support of parliamentary democracy in the 21st century.

Megan Ryan-Lloyd

Megan Ryan-Lloyd participated in the 2024-2025 Ontario Legislative Internship Program. She is currently a JD candidate at the University of Ottawa’s Faculty of Law. This article is an abridged version of an essay published in Inside Queen’s Park II: Ontario Legislature Internship Essays 2000–2025.

Parliamentary privilege refers to the collective and individual rights and immunities which are deemed necessary for Parliament and its Members to satisfy their primary functions. Among these rights are the freedom of Members to perform their parliamentary duties without undue obstruction, interference or intimidation, and the power of the House to discipline members, staff or “strangers” for conduct deemed a breach of privilege or contempt of parliament.1 Without parliamentary privilege, parliaments and legislative assemblies, as institutions, or Members, as representatives of the electorate, could be barred from performing their parliamentary duties. As a result, the authority and effectiveness of a legislative institution to hold the government to account and its role as a forum for expressing citizens’ concerns would be correspondingly diminished.2 Parliamentary privilege is widely recognized as essential for the effective functioning of the legislative branch. Indeed, it is intuitive that, at the heart of democracy, there lies a recognition that parliamentarians must be free to represent their constituents’ views and express themselves in debates without fear, regardless of the power or wealth of those they criticize. Jurisdictions across Canada and the Commonwealth assert and protect parliamentary privilege in different ways. This article explores how parliamentary privilege functions within the Legislative Assembly of Ontario and considers whether there are ways the Legislative Assembly can adapt its understanding of parliamentary privilege to meet the needs and expectations of its Members.

Research Questions and Methodology

Historically, legislatures have acted to more clearly define and articulate parliamentary privileges in times when there has been significant concern about parliaments’ ability to effectively operate. For example, court decisions that appear to unduly restrict or limit the application and scope of privilege3 have prompted parliamentarians to consider methods of asserting, protecting or further defining their privileges. Recognizing this pattern, this research examines whether the Legislative Assembly of Ontario is currently able to effectively operate relying on its parliamentary privilege. It also examines whether additional steps, ranging from a committee study to complete codification, would be beneficial to fully allay any contemporary concerns about maintaining and exercising privilege.

My research question asks whether changes should be made to assert further, clarify, or modernize how the Legislative Assembly of Ontario outlines these privileges. More specifically, are there substantial concerns about the exercise of privilege? If so, what are some options to address these concerns? Or, perhaps more generally, is there a need for legislatures to comprehensively assert or re-examine the nature and scope of parliamentary privilege? These questions highlight the importance of understanding parliamentary privilege and its broader role in protecting our representative institutions, especially in a time of tense and divisive politics. This article emphasizes that a commitment to protecting and strengthening our parliamentary and legislative institutions is essential, and such a commitment includes preserving the unique privileges that serve as an essential foundation for their constitutional and democratic roles.

In undertaking this research, I reviewed both primary and secondary sources to understand how parliamentary privilege has been applied and developed over time as a constitutional principle. To supplement this literature review, I conducted three interviews with procedural experts from the Legislative Assembly of Ontario who provide procedural support to Members in various capacities. A second set of interviews focused on attitudes, feelings, and general understandings of privilege for those it impacts the most: Members of the Legislative Assembly of Ontario. Ten Members of the Assembly were selected based on criteria indicating a greater likelihood of familiarity with parliamentary procedure and privilege at the Legislative Assembly.4 Participating Members each met at least one of the two following requirements: they occupied a formal position whose duties are primarily procedural in nature, or had been a Member for a minimum of 10 years.5 The balance achieved across party lines was as follows: five Members from the Government, three from the Official Opposition, and two independent Members based on the party standings of the 43rd Parliament.

Understanding Parliamentary Privilege: History, Definition, Application in Ontario

This article employs the definition of parliamentary privilege set out by the Legislative Assembly of Ontario’s Standing Orders: “Privileges are the rights enjoyed by the House collectively and by the Members of the House individually conferred by the Legislative Assembly Act and other statutes, or by practice, precedent, usage and custom.”6 For this study, codification of parliamentary privilege refers to the practice of incorporating the often-unwritten applications and customs of privilege into statutory form, as opposed to relying on common law protections.7

Legislative bodies primarily decide how their privileges are exercised internally.8 Indeed, among the privileges held by the Legislative Assembly of Ontario is the right to independently regulate its internal affairs. Ontario has partially codified its parliamentary privileges in the Legislative Assembly Act (“the Act”). The Act’s parliamentary privilege provisions include the following:

The power of the Assembly to command and compel the attendance of witnesses before it and its committees, as well as the production of “papers and things,” as deemed necessary for its proceedings and deliberations;
The power of the Speaker to issue warrants to direct the attendance of persons before the Assembly and its committees, and the production of papers and things, as ordered by the Assembly;
The protection of persons from liability for damages or otherwise, for any act done under the authority of the Assembly;
Members’ freedom of speech;
Members’ freedom from arrest in civil actions; Prohibition on the service of civil process in the legislative building, committee rooms, and designated Members’ offices;
The exemption of Members, officers, and employees of the Assembly, and of witnesses summoned to appear before the Assembly or its committees, from serving as jurors; and
The right to inquire into and punish contempt’s and breaches of privilege (Legislative Assembly Act, R.S.O. 1990, c. L.10).

This statutory expression reflects the Legislative Assembly’s preferred approach in assertion of its privileges, which can be relied upon within court proceedings and in clarifying the elements of its privileges on an as-needed basis. Ontario’s approach—a pragmatic use of statute law—is one of the two primary approaches to legislating parliamentary privileges, the other being comprehensive codification.9 Comprehensive codification can further clarify the full parameters of privilege, offering a way for a parliamentary or legislative institution to proactively assert its privileges, and provide direction for its consideration by the courts. An example of a more fulsome codification of privilege can be found in the Australian Parliamentary Privileges Act 1987.10

Parliamentary privilege was first claimed within the historical struggles of the English House of Commons as it battled to assert legal protections from the dominant role of the Monarch. Taking offence at the conduct of some Members of Parliament, in the fourteenth and fifteenth centuries, the King imprisoned several parliamentarians despite protests from the House of Commons that these arrests contravened its liberties. While the primary concern of parliamentary privilege historically was the then-evolving relationship between the British House of Commons and the Monarch’s gradual decline of constitutional power and influence, today, a more significant concern tends to be the threat of encroachment by the judiciary and the impact of narrow recognitions and interpretations of privilege.11 Furthermore, in recent decades, parliamentary privilege discourse has centered on how privilege should function within a rights-based legal system, exemplified in the Canadian context by the Canadian Charter of Rights and Freedoms.12

Compared to the Parliament of Canada, some legislative assemblies in Canada’s provinces and territories had a longer and more fraught process to assert their parliamentary privileges. The British North America Act, 1867, conferred the privileges of the British House of Commons and its Members as in effect in March 1867 to the new Canadian Parliament, but did not explicitly extend the same privileges to provincial legislatures. Provinces, therefore, later sought to establish recognition of their parliamentary privileges through legislation.13

Literature Review & Key Debates

Many jurisdictions throughout the Commonwealth rely on authoritative procedural guides to inform their respective approaches to parliamentary business. In Canada, House of Commons Procedure and Practice is a respected authority on parliamentary procedure. It explains how business is conducted in the House of Commons and how Members’ work is governed.14 This guide and similar procedural authorities collect and organize Parliament’s traditions, precedents, and procedures. Joseph Maingot’s oft-cited Parliamentary Privilege in Canada focuses on the history and workings of privilege within a Canadian context and is frequently referred to during in-depth discussions of this topic. Additionally, Erskine May’s Treatise upon the Law, Privileges, Proceedings and Usage of Parliament is a cornerstone source which has become a preeminent authority on parliamentary practice owing to its enduring and pervasive use in maintaining a uniform understanding of privilege. Although written explicitly for the Parliament at Westminster, it has continued to be used as a procedural authority by numerous legislatures, national, state, and provincial, for many years.15

Robert and Lithwick’s “Renewal and Restoration: Contemporary Trends in the Evolution of Parliamentary Privilege” provides a comprehensive overview of the evolution of parliamentary privilege in Australia, Canada, New Zealand, and the United Kingdom. The authors highlight that as individual parliamentary institutions and democracies have matured over the last century, they have developed their own approaches to privilege. In surveying these democracies, Robert and Lithwick distinguish two trends: renewal, a more explicit approach to accommodate individual rights with parliamentary privilege by applying a “necessity test,” and restoration, a more implicit approach that emphasizes protecting privilege in order to sustain the work of parliament.16

Significant academic debate concerns who should be able to define the scope and exercise of parliamentary privilege. Some sources highlight the critical role the judiciary plays in relation to parliamentary privilege, specifically when the existence, scope, or necessity of the asserted privilege is at issue and competing constitutional principles, rights, and interests are in balance.17 Others, however, argue that in scrutinizing the necessity and scope of privilege, Canadian courts have chipped away at the separation of powers, unjustifiably prioritizing the judicial recognition of individual rights over the needs of parliamentary institutions.18 This body of literature highlights the practical challenges of ensuring that the functioning of parliamentary privilege complements our constitutional framework rather than operating above it.19

As mentioned above, Australia and New Zealand offer specific examples of the codification of privilege. The UK has also strongly considered this avenue. A report by the Constitution Society, an independent foundation, argues that support for further codification of privilege extends beyond syntactic considerations, and there are potential practical consequences of relying solely on an evolutionary approach.20 This report outlines that the benefit of codification is that the process of creating specific provisions may make it less likely that the judiciary will cut down the scope of parliamentary privilege intended by Parliament.21

The question of whether codification is a preferred mechanism remains contested. Some typical concerns about the codification of privilege note the risk of freezing privilege in a particular era, potentially leading to increased judicial encroachment, public misunderstanding, and a lack of flexibility for privilege to adapt to the changing needs of legislative institutions. Colette Mireille Langlois, for example, argues for a “relational approach” to parliamentary privilege. Such an approach frames issues in terms of context and underlying values, rather than the traditional contest approach, which involves competition between individual rights and privileges.22

Upon reflection, there is a lack of discussion in the literature surrounding the codification of privilege within the specific context of Canadian provinces. Additionally, literature in this area highlights that Members rarely participate in these discussions about privilege. Apart from a contribution by former MP Derek Lee,23 most commentary on this subject is produced by clerks, procedural researchers, or other senior officials of legislative institutions. This appears to suggest that the practice in many parliaments and legislative assemblies is that a robust understanding of privilege is almost exclusively limited to clerks or other proceduralists, rather than Members. This study aims to examine this dynamic, especially considering how much parliamentary privilege impacts Members.

Key Informant Findings

This research included three semi-structured key informant interviews to assess a range of topics, including Members’ levels of understanding about procedure and technical clarifying questions, such as what codification would look like in practice and what resources are available to Members to support their understanding and navigation of privilege issues. As these staff serve in a strictly non-partisan capacity, they did not recommend a particular course of action concerning codification or other modification methods. However, their specialized knowledge of the topic provided some initial insight into Members’ relationship with procedural topics.

These interviews revealed that there have not been significant discussions about further codifying parliamentary privilege in Ontario. As one interviewee explained: “We’ve modernized our approach to parliamentary privilege quite a bit internally, but nothing in statute.” The Office of the Parliamentary Counsel, established in 2014, was cited as a primary reason codification has not been strongly considered. This Office provides comprehensive legal advice and support services for questions on parliamentary law, procedure, and privilege, from the Speaker, the Clerk, the House, committees, and individual MPPs. Having a specialized office with a comprehensive understanding of parliamentary privilege alleviates some uncertainty that may otherwise be present with privilege-related matters. As a result, discussions about possible further reform may be seen as less pressing.

Another reason Ontario may not have considered further codifying parliamentary privilege is due to its unique post-Confederation history. Although the Constitution Act, 1867 was silent about whether the provincial legislatures had parliamentary privilege and the right to legislate their privileges,24 later court decisions confirmed this power, allowing legislatures to enact laws defining their privileges.25 Provisions in the modern-day Legislative Assembly Act are the same as those early provisions from the Assembly’s first successful attempt to legislate. Therefore, the Legislative Assembly of Ontario’s struggle to recognize its privileges, which remain partially codified today, must be understood in relation to its historical context and why Ontario opted to codify strategically and not comprehensively. The strategic codification of certain aspects of privilege in Ontario reflects this historical conflict and should not necessarily be seen as a broad preference for codification.

The interviews also highlighted some future considerations that could prompt the Legislative Assembly of Ontario to consider additional codification of privilege. For example, if a senior court were to seriously restrict parliamentary privilege or add more barriers to establishing privilege, legislative assemblies may determine that relying on the common law development of privilege is no longer sufficient for their needs. As one interviewee highlighted:

In a world where the non-codification of parliamentary privilege has led to a significant retraction of privilege by the courts, I suspect that will sharpen my mind at the very least, but I think a lot of my colleagues’ minds as well across the country, whether or not codification, a significant and complete codification, is something that we ought to do.

One of the primary concerns regarding codification is that while it may increase certainty surrounding interpretation and future use, it also may limit flexibility. The parliaments of Australia and New Zealand, frequently cited as examples of parliaments that have adopted comprehensive privilege codes, have both signaled that their respective legislation is not intended to be a comprehensive code and will not limit the further interpretation and exercise of privilege. With this in mind, key informants were asked about the degree to which codification can be rigid or limiting, especially when the intent, as seen in Australia and New Zealand, is to provide clarity while maintaining flexibility. The following quote comes from a conversation about the role of “saving clauses” found within the Australian and New Zealand codes, which are the textual evidence suggesting the acts are not intended to be comprehensive:

Saving clauses are great, but if you put a big list [of codified parliamentary privileges] in front of a judge, they’re going to use that big list. They’re going to use that big list for no other reason than the fact that you clearly put some thought into it. And so, if you’re trying to create new laws, new parliamentary privileges, or make an ideology, it’s got to be restricted to that particular list, or the theories and threats behind that list.

This reflection is an example of how the codification process could lead to reduced flexibility in privileges and how a saving clause would not necessarily alter this reality. Ultimately, if a legislative body wishes to fight for a new articulation of privilege, a saving clause may do very little to support this exercise. The absence of a concrete “list” of privileges may make it more straightforward to fight for such an expansion.

These interviews also revealed insight into the distinction between a procedural authority and a codified set of laws on parliamentary privilege, specifically in their capacity to serve as tools for parliaments.26 Interviews highlighted that the primary purpose of codification is to protect privilege from legal challenges. In contrast, a procedural authority would primarily serve as an educational tool and resource, with little to no legal standing. One interviewee highlighted a difference that makes codification significantly more rigid and inflexible than a procedural authority: “You don’t get to provide context in a bill. You are able to provide context in a book.” A procedural authority can include historical background, examples, and interpretive notes, whereas bills prioritize precision, which leads to differing impacts of both methods on clarifying parliamentary privilege.

When asked about Members’ levels of familiarity with privilege, respondents highlighted its complex nature. And, while all interviewees recognized that Members are not expected to be experts in privileges or parliamentary procedures, there is a broadly shared sentiment that many Members lack a full understanding of such topics. For example, when asked about what Members believed parliamentary privilege was, individual freedom of speech was emphasized as one of the rights of privilege that Members intuitively recognized and understood. One interviewee pointed out that this pattern points to a lack of understanding of privilege among Members: “I think as scholars and practitioners of parliamentary privilege, sometimes we don’t make it clear enough that there’s no such thing as an individual privilege.” This reflection underscores that privilege is best understood as collective rights, as individual privileges are often subordinate to the collective privileges of the House. As such, interviewees highlighted the importance of viewing privilege through an institutional lens, emphasizing the role of a parliamentarian within their broader institution. The following quote from an interview explains why it is crucial to use an institutional lens to see privilege and how misapprehension of privilege may impact the consideration of codification:

Part of parliament being able to function properly is its privileges. So, to the extent that we say that some privileges are not necessary anymore in the current day, or we read down the scope of privileges because parliament doesn’t seem to need them, it doesn’t mean the parliament doesn’t need them tomorrow. I don’t think right now, parliaments are making that point clearly enough to the public, to the courts, to everyone else about the role it can play in the future and the goal that it should play in the future.

These reflections helped inform my approach to Members’ interviews, particularly in assessing whether Members do, in fact, primarily view parliamentary privilege as tantamount to individual rights or if there is an equal focus on the institution of the Legislative Assembly.

MPP Interviews Findings

Building on the technical insights gained from the initial interviews with key informants, Members of the Ontario Legislative Assembly were asked how often the subject of parliamentary privilege came up in their work, to what degree they believed they understood the topic, and what issues they associated with it. Through a thematic analysis process of the interview transcripts, I identified four key themes underlying Members’ reflections on parliamentary privilege: “Recognition of the Significance of Privilege,” “Individual Rights,” “Lack of Understanding,” and “Perceptions vs. Reality.”

Theme #1: Recognition of the Significance of Privilege

Participating Members recognized parliamentary privilege and the rights it affords them as being fundamental to the legislative process 15 times over the course of the interviews. Some Members noted that their experience in senior caucus roles or as a presiding officer gave them procedural experience that granted them a deeper understanding of how crucial parliamentary privilege is to the Legislative Assembly as an institution. Some Members also highlighted how specific situations arising in the House involving privilege illustrated this point.27 However, appreciating the importance of parliamentary privilege does not necessarily mean that Members have a comprehensive understanding of the topic. As one interviewee noted:

While most Members might not be familiar with the finer points of privilege in its actual defined legislative sense, I think all of us have a very clear concept of privilege. And so even without some of the specific details and rules, I think most of us recognize the weight of what it is that we do, however we would define it.

Perhaps then, Members can intuitively understand the importance of parliamentary privilege without fully understanding its intricacies. Interestingly, one interviewee, based on their academic experience, provided specific insight into the codification of privilege. In this conversation, the Member provided reflections with a strong response against the idea:

Our system of law, or common law, is set to evolve over time, almost like historical storytelling. You know, context changes, application then can evolve. If you come at it from looking at something like the Napoleonic code, where everything is codified, it gives you a sense of certainty, but it also makes it more difficult to evolve. You have to consciously change it. So, I prefer not to have [parliamentary privilege] codified because then you’re captured in the four corners of the paper.

Another insight by the same Member highlighted the tension between the judiciary and parliamentary institutions as to who should broadly define the application and scope of privilege:

The greatest tension is that the judges are making decisions on what the boundaries [of privilege] are, when really the legislature was meant to be its own master of its own space. So, as long as that balance doesn’t shift, we’re okay. But there’s a tendency for laws and conventions to evolve, and they do just because the context changes. Parliamentary privilege is pretty sacrosanct, and we don’t want to see an incursion by other decision-makers.

Theme #2: Individual Rights

There were 13 instances during interviews in which participants associated parliamentary privilege as a concept that affords them individual rights and protections, rather than recognizing it as a set of collective rights. At the beginning of each interview, Members were asked what parliamentary privilege meant to them. On this point, many Members expressed that their understanding of the concept amounted to the idea that “if Members say things, they can’t be sued for it.” In contrast, collective privileges, such as parliament’s ability to regulate its internal affairs or to discipline Members, were rarely highlighted in interviews. The distinctly individualistic understanding of the rights of privilege is apparent in many of these interviews:

No matter what side of the political spectrum, you’re given the right to speak, you’re given the right to represent, and you’re given the right to participate. But at the same time, you don’t have the right to abuse your privilege, or more importantly, abuse another Member’s privilege. That’s what some people forget: that when you talk about points of privilege, it’s not just “my privilege,” it’s what I intend to do to someone else. They deserve the same rights as me.

In a parliamentary setting, the concepts of individual and collective privileges are marked differently from individual and collective rights in law. While it is common to hear the rights of privilege referred to as individual and collective privileges, it is more accurate to say that privilege belongs to the House as a whole. Individual Members have claims to privilege only insofar as any denial of their rights or threat made to them would impede the functioning of the House. This theme illustrates a concern raised by key informants, in that when Members focus on the individual component of privilege, the effect can be to chip away at the power of privilege to protect not only individual Members but, in a broader sense, the Legislative Assembly as an institution.

Theme #3: Lack of Understanding of Parliamentary Privilege

Members were asked if understanding the procedures of the House was something they viewed as integral to their role as a parliamentarian or if it was a more specialized area of knowledge that was only required on an as-needed basis. There were 13 instances of responses highlighting that it is not something seen as integral, nor understood very well. Some interviewees with backgrounds in municipal politics or union movements highlighted how the term “point of privilege” is used in a different, less technical sense in these spaces, contributing to further confusion about this concept.28 The vast majority of interviewees emphasized that they wish they had a better understanding of what parliamentary privilege entails. They also noted that their fellow Members do not have a comprehensive understanding of the concept. As one Member noted:

Most people don’t necessarily have a common understanding of what it means, or don’t really have a clear idea about what it is, and how it can be used or when you can claim a question of privilege.

Despite indicating they would like to know more about this topic, it was repeated by Members that their gap in understanding of procedural concepts is easily filled by “procedurally knowledgeable staff,” such as Clerks or the House Leaders. As one interviewee explained:

Most Members don’t really have time, or they don’t have a sense of why they would care, because they have a house team that manages these tasks. And even when there is an issue that they feel aggrieved somehow, they know that they can talk to the table, and they do.

Overall, comments within this theme indicate that having a comprehensive understanding of parliamentary privilege and procedures of the House is not strictly necessary to perform the role of an MPP. Furthermore, the extent of procedural support provided to members may, in some cases, diminish motivation to learn more about privilege and procedures.

Theme 4: Perceptions vs. Reality of Privilege

This theme is defined by Members distinguishing a “valid” point of privilege compared to what is “fair.” There were five instances where Members expressed dissatisfaction over how privilege functions, particularly when there is an assumption that fairness is a guiding principle for the House rules. Fewer instances of this theme are present because this theme was primarily highlighted by non-government Members. This theme highlights an apparent tension between the ideals of what privilege should be and the actual powers available to legislative institutions, particularly with respect to their authority over internal affairs. One Member emphasized a disconnect between what is considered “fair” and what is procedurally permitted:

I have found that some of the things that have happened constitute what I perceive to be a real limitation on a member’s ability to function in terms of their parliamentary role. But some of these things are actually not breaches of privilege because they are permitted by the Standing Orders.

Another interviewee mentioned the specific examples of Standing Order 77a29 and the House’s ability to censure a member as powers that seem “unparliamentary.” In expressing these concerns, this member emphasized that these instances “feel like a denial of privilege” [emphasis added]. This speaks to a tension between values of legitimacy and fairness: The former is a question of how to ensure permissible decisions are made (for example, referring to the standing orders or convention), while the latter involves the question of what “ought to be done” on a substantive level by the Legislative Assembly as a political institution. In the context of a majority government, where the outcome of motions reflects the democratic will of the majority, opposition Members could likely experience this conflict most acutely. Members tended to express that feelings of unfairness stem from how other Members approach or vote on issues related to privilege, such as the exercise of disciplinary powers. There seems to be recognition that procedures designed to protect privilege are in place to support the work of parliament and its Members in principle, however imperfectly they might be perceived to function in practice.

Reflections

Surveying the attitudes and understandings of privilege at the Legislative Assembly of Ontario, there does not appear to be a pressing desire to drastically reform practices related to parliamentary privilege or to engage in a high-level review of the concept. Nevertheless, there does appear to be interest among Members for some additional proactive training and education on the operational and necessary components of privilege. While the Assembly is not currently facing a situation that requires immediate action to safeguard the operation of parliamentary privilege, this study has revealed varied levels of understanding of parliamentary privilege and its operation. Working to ensure parliamentarians have a better understanding of the nature of parliamentary privilege would be beneficial should the need for reform be thrust upon the Assembly by future circumstances; for instance, if a particular court ruling is judged to unreasonably restrict parliamentary privilege.

While much of the responsibility of recognizing and understanding parliamentary privilege has been tasked to knowledgeable and trusted non-partisan officials, such as staff in the Office of Parliamentary Counsel, it is perhaps concerning that a concept so integral to parliament as an institution is something that many Members see as “beyond them.” How this concept is understood and applied in practice is vital to its long-term utilization and renewal. Indeed, Members who lack an understanding of privilege may be less likely to be concerned about any incremental erosion of its associated rights, as they may not fully comprehend its significance.

With established democracies confronting high levels of political disengagement, decreased trust in elected representatives, and dissatisfaction with the perceived relevance and competence of parliaments,30 it is essential for everyone engaged in parliamentary life to undertake initiatives to strengthen our representative institutions. In these circumstances, it is especially important to view parliamentary institutions as promoters of the values of parliamentary democracy. This includes an ongoing commitment to understanding and protecting the unique parliamentary privileges that are critical to the collective and individual roles of parliamentarians. A thorough understanding of these privileges is crucial because when complex or contentious issues arise, parliamentarians must be able to navigate them effectively, ensuring that debates and decisions operate within proper legal and institutional frameworks.

To bring this study to a close, I reflect on a historic moment in parliamentary history. In 1642, King Charles I arrived unannounced at the doors of the English House of Commons, accompanied by 400 soldiers, and attempted to arrest five Members of Parliament for treason. The five Members had sponsored a petition that was critical of the King, who therefore had concluded that their actions were treasonous. The King’s ultimately unsuccessful attempt to arrest these Members undermined the privileges of the House, including the collective rights of the Members to deliberate amongst themselves without the threat of interference by the Crown. This event is regarded as one of the factors that contributed to the outbreak of the English Civil War.

This story underscores the significance of parliamentary privilege as something that withstood a direct threat from the Crown. This historical moment has left a lasting impression on English parliamentarians’ collective memories, and some observers could conclude that such a dramatic history contributed to a parliamentary culture which has included fulsome contemporary discussions on privilege. In contrast, the Canadian House of Commons inherited parliamentary privilege as an extension of our constitutional heritage without needing to overcome dramatic physical intrusions or other immediate threats. Some Canadian provinces, which were not explicitly granted this privilege, asserted privilege over time through legal disputes adjudicated by courts. The absence of physical threats to the legitimacy of parliament may have shaped the evolution of Canadian parliamentary culture. But our own parliamentary history should not prevent us from doing our utmost to ensure that parliamentarians, as our democratic representatives, have a thorough understanding of these important legal rights so that they are fully vigilant in utilizing and renewing these rights, which are so essential to a vital parliamentary democracy.

Notes

1 House of Commons of Canada. (n.d.). Parliamentary Privilege. Our Procedure – ProceduralInfo. https://www.ourcommons.ca/procedure/our-procedure/parliamentaryprivilege/c_g_parliamentaryprivilege-e.html

2 Gay, O. “Parliamentary Privilege: Current Issues. Parliament and Constitution Centre: House of Commons,” UK Parliament Research Briefing, 2013, p. 4. https://doi.org/https://researchbriefings.files.parliament.uk/documents/SN06390/SN06390.pdf, p. 4).

3 For example, the Australian Parliament, finding that the courts were severely restricting its freedom of speech, enacted statutory remedies through the Australian Parliamentary Privileges Act 1987 to protect its proceedings.

4 Although the sample does not represent all Members of the Legislative Assembly, these guidelines were considered necessary for this study to facilitate informed discussions during interviews.

5 E.g., Government or Official Opposition House Leader, Government or Official Opposition whip, Speaker, Deputy Speaker or Assistant Deputy Speaker.

6 Legislative Assembly of Ontario. (2024). Standing orders of the Legislative Assembly of Ontario. https://www.ola.org/en/legislative-business/standing-orders, page 9.

7 The Criminal Code of Canada is a prime example of codification, as it consolidates most of Canada’s criminal law in a single, unified document. Codification in this example aims to provide a clear, accessible, and comprehensive overview of criminal law in Canada.

8 Questions of privilege raised about some action taken by another Member, Minister, Ministry, or individual related to a proceeding in parliament are dealt with by the respective House and the Speaker. See: Reynolds, R. “Parliament and Democracy in the 21st Century: Parliamentary Privilege.” Canadian Parliamentary Review, 25(4), 2002, p. 2. http://www.revparl.ca/english/issue.asp?param=85&art=270

9 The distinction between pragmatic use of statute and comprehensive codification was made in the 2013 report of the UK Joint Committee on Parliamentary Privilege. Comprehensive codification would entail legislating all aspects of privilege, whereas pragmatic use of statute entails the use of statute to clarify or confirm specific elements of privilege as required.

10 The Australian Parliament, finding that the courts were severely restricting its freedom of speech, enacted statutory remedies (i.e.., codification) to protect its proceedings in 1987. The Australian Parliamentary Privileges Act 1987 provides definitions for a number of concepts including contempt.

11 Encroachment by the judiciary in this context refers to courts exerting, arguably, an increased influence over the meaning and operation of parliamentary privilege. The concern associated with judicializing parliamentary privilege is that such a process weakens the autonomy of legislative institutions.

12 Senate of Canada. A Matter of Privilege: A Discussion Paper on Canadian Parliamentary Privilege in the 21st Century. Ottawa, Ontario, 2015, p. 77. URL: https://sencanada.ca/content/sen/committee/412/rprd/rep/rep07jun15-e.pdf The incorporation of the Canadian Charter of Rights and Freedoms into the patriated Canadian constitution in 1982 was a turning point in Canadian law, shifting it to a constitutionally entrenched rights-based legal system. Following the adoption of the Charter, questions as to whether and how the constitutional rights of individuals might affect the exercise of constitutional powers by various institutions (i.e., privilege) has been raised more often before the courts.

13 In 1868, the Legislative Assembly of Ontario passed 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 in an attempt to grant itself the same privileges enjoyed by the Canadian Parliament.

14 Bosc, M., & Gagnon, A. House of Commons Procedure and Practice (3rd ed.). House of Commons of Canada, 2017.

15 Robert, C., & Lithwick, D. (2014). “Renewal and Restoration: Contemporary Trends in the Evolution of Parliamentary Privilege.” The Table: The Journal of the Society of Clerks-at-the-Table in Commonwealth Parliaments, 82, 2014, p. 29. URL: https://doi.org/https://www.societyofclerks.org/Documents/TheTable_2014.pdf

16 Robert & Lithwick, p. 25.

17 Newman, W. J. “Parliamentary Privilege, the Canadian Constitution and the Courts.” Ottawa Law Review, 39(3), 2008, p. 573. https://doi.org/https://www.canlii.org/w/canlii/2008CanLIIDocs118.pdf

18 Neudorf, L. The Judicialization of Parliamentary Privilege in Canada: A Cautionary Tale. Laws, 13(26), 2024, pp. 1–28. URL: https://doi.org/https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4746964

19 Newman, p. 609. Another notable debate on parliamentary privilege in a Canadian case concerns the question of constitutional limitations on privilege. Since parliamentary privilege provides an exemption from specific ordinary laws, this aspect of immunity can conflict with the expectations and norms of rights-based law, (Robert & Lithwick, p. 24). In Canada, a delicate balance exists between privilege and the rights of individual citizens, primarily outlined in the Canadian Charter of Rights and Freedoms. Robert and Lithwick discuss how the Charter impacts discussions about parliamentary privilege, and how this change has prompted some rethinking of the extent of the privileges possessed by provincial legislative assemblies.

20 Gordon, R., & Jack, M. Parliamentary Privilege: Evolution or Codification? The Constitution Society, 2013, p. 53. For example, the report discusses the importance of understanding the relationship between committee work and the corresponding scope of parliamentary privilege.

21 Gordon & Jack, p. 43.

22 Langlois, Mireille, C. “Parliamentary Privilege: A Relational Approach.” Faculty of Law, University of Toronto, 2009, p. 53. https://doi.org/https://utoronto.scholaris.ca/server/api/core/bitstreams/9de43908-9938-434d-870e-b3e4460becf3/content

23 Lee, the MP Scarborough-Rouge River from 1997 to 2011, argues in favour of codification by taking issue with the general lack of knowledge about parliamentary privilege among the public, lawyers, and even legislators themselves (Lee, D. “The Need for Codification of Parliamentary Privilege.” Commonwealth Parliamentary Association – Canadian Region, 2005, p. 2.: https://doi.org/https://www.canlii.org/en/commentary/doc/2005CanLIIDocs286#!fragment/zoupio-_). He recommends clarifying the rights of privilege, such as those outlined in the First Report of the Joint Committee on Parliamentary Privilege in 1999 in the UK.

24 As a result, in 1868, the Ontario Legislative Assembly passed 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 in an attempt to grant itself the same privileges enjoyed by the Canadian Parliament. This Act was disallowed by the Governor General on the advice of the Privy Council. Later, in the 1896 case Fielding v. Thomas, the Judicial Committee of the Privy Council confirmed the right of the provincial legislatures to grant themselves the same privileges as the House of Commons of Canada. (Maingot, J. Parliamentary Privilege in Canada (2nd ed.). House of Commons and McGill-Queen’s University Press, 1997, p. 205).

25 Ibid., pp. 205-06.

26 As referenced in the primary source literature, a procedural book refers to some jurisdictions’ sources that serve as a guide to how the institution operates and conducts its business. This may include an elaboration of the Standing Orders, practice recommendations, and precedents that govern proceedings. An example includes the House of Commons Procedure and Practice (Bosc, & Gagnon).

27 Some examples highlighted by Members included privilege issues related to Members being exempt from jury duty, protected from obstruction in the performance of their duties, and other cases that have come up during their time at the legislative assembly.

28 Similar to other parliamentary bodies, a “point of privilege” is often used as a mechanism for a council member to raise an issue that affects their ability to fulfill their duties as a councilor, or that impacts the privileges of the council as a whole.

29 Standing Order 77(a) allows for the Second Reading of Bill to be discharged and the Bill to be referred to a committee. Meaning that second reading is postponed until after the committee’s consideration.

30 Dalton, R. Democratic Challenges, Democratic Choices: The Erosion of Political Support in Advanced Industrial Democracies. Oxford University Press, 2004.