This paper explores the history and issues surrounding privilege and swearing
in witnesses. In summary, it argues that: contempt powers available to
committees are not always enough to compel the appearance or testimony
of witnesses. By legislating the power to administer oaths, by exempting
sworn testimony from the usual protections of privilege when it is used
in the case of perjury and by giving the responsibility for prosecuting
perjury cases to the courts, Canada has created a more effective mechanism
for punishing those who lie to a parliamentary committee. It also argues
that the Charters provisions guaranteeing the rule of law and due process
may conflict with Parliaments coercive powers; that other claimed powers,
such as the ability to fine offenders, may also be questionable; and that
the power to punish for contempt and to fine can no longer be asserted
with certainty until they are tested in the courts. In remedy, the paper
suggests a comprehensive review of the privileges and powers of Parliament
with respect to its committees and that consideration be given to ensuring
that they are properly equipped to function in the legal and human rights
constructs that comprise the Charter era.
The use of coercive powers by Parliament has two identifiable functions,
to compel or to punish. Compulsion can be used with witnesses who may be
hesitant or reluctant to cooperate; it deals with the immediate situation.
Punishment is used after the fact against witnesses whose behaviour has
been found to offend the dignity of the committee. The option to use either
remains entirely at the discretion of the committee, subject to confirmation
by the House. The history of these coercive powers and their effectiveness
has not been the focus of much study or comment. Joseph Maingot's Parliamentary
Privilege in Canada is one of the few to have reviewed the subject, but
this analysis does not pretend to be comprehensive; nor does Maingot really
consider whether these coercive powers are still appropriate today, even
though he was sensitive to the altered legal environment brought about
by the incorporation of the Charter into the Constitution. Should these
coercive powers be retooled to maximize their usefulness in the contemporary
context? Has there been any impact on them as a result of the proclamation
of the Charter with the guarantee of individual rights, including due process
and the protection of self incrimination.
The privileges and powers of Canadas Parliament are derived from British
parliamentary practices and traditions. The House of Commons in England
has exercised contempt powers for centuries. As a constituent part of the
High Court of Parliament, it had an inherent right to insist on the complete
cooperation of witnesses called before the bar of the House or before one
of its committees. Failure to comply with its demands for information could
lead to various punishments including admonishment, reprimand and, not
As it happened, Parliaments successful assertion of its supremacy in the
late 17th century confirmed these powers, and also contributed to their
excessive use. The judgment of Stockdale v. Hansard includes a list of
some of these abuses spanning a century.1
Among the more egregious examples
were violations of members private property, such as poaching and trespass,
and even eviction of tenants for non-payment of rents. These abuses were
completely unrelated to the strict understanding of contempt because they
did not involve interference in the actual workings of the House or the
participation of its members. Such outrageous practices were eventually
curbed and the contempt power was more properly limited to enforcing compliance
with orders of the House in pursuit of its work.
In addition to the contempt power, the House of Commons sought the right
to administer oaths to witnesses, which was fully achieved by statute in
1871. Unlike the House of Lords, the power to swear witnesses was not inherent
to the House of Commons because it did not exercise judicial functions.
The Commons did, however, deal with quasi-judicial matters such as disputed
elections and petitions for divorce. Early attempts to hear witnesses under
oath included some irregular practices. At a time when some MPs were also
magistrates, they might be called upon to administer an oath. On other
occasions, witnesses were sent to be sworn at the bar of the House of Lords.
These practices, not authorized in law, were used sporadically over the
course of about 100 years until they were abandoned mid 18th century.
The preference to hear witnesses under oath was motivated by at least two
factors. One was to impress upon members and witnesses alike the serious
nature of some of the committee proceedings. Second, the growing number
of private bills highlighted the need to hear petitioners under oath to
ensure that Parliament did not enact statutes based on false information.
The 1770 Grenville Act was the first statute to replace this ad hoc approach
with a more systematic one. It was done to allow committees looking into
disputed elections to conduct themselves more like a trial. This same Act
also empowered the House of Commons to administer oaths at the bar in certain
cases. Various amendments were made to this Act, and other similar Acts
from 1770 onwards to extend the range of committees and subject-matter
where oaths could be administered. The issues being examined primarily
dealt with controverted elections and divorce cases.
The Parliamentary Witnesses Oaths Act of 1871 finally granted the House
of Commons and its committees the right to administer oaths without restriction.
By its terms, Any person examined as aforesaid who willfully gives false
evidence shall be liable to the penalties of perjury. Before the passage
of such statutes, article 9 of the Bill of Rights barred the courts from
using any aspect of parliamentary proceedings as evidence for any purpose.
Laws permitting the swearing of witnesses, and particularly the 1871 Act,
removed this impediment by creating a statutory exception to article 9.
This interpretation is confirmed by the 1999 UK Joint Committee on Parliamentary
Privilege2 and by Maingot3. Until the adoption of the Defamation Act 1996,4
permitting the limited use of Hansard by MPs as evidence in defamation
proceedings, perjury was the only exception to article 9.
These exceptions to article 9 have not impaired Parliaments coercive powers.
On the contrary, with the incorporation of the oath power, witnesses became
liable to two distinct charges contempt and perjury. Either or both could
be pursued, depending on the circumstances. This was acknowledged as early
as 1844 in the first edition of Erskine Mays Treatise on the Law, Privileges,
Proceedings and Usage of Parliament. The 1999 UK Report on Privilege also
noted the dual liability and was not particularly troubled by it, though
one British Justice recently expressed some concern about the possibility
of conflicting results if both charges were actually followed. In fact,
this has yet to happen and seems quite unlikely.5
Only three examples have been identified of perjury charges being recommended
by the House of Commons in the nineteenth century. All three predate the
1871 Act, and all involve false testimony in relation to a committee examination
of a disputed election.6
These examples have led to the perception that a perjury prosecution can
take place only on the recommendation of the House, or that a prosecution
must take place if the House calls for one. This presumption does not appear
to be well founded. In an 1869 appearance before a House of Commons select
committee, Erskine May suggested an alternative understanding. Asked whether
an indictment for perjury could proceed only with the permission of the
House, May answered in the negative, saying:
the House of Commons would be in the same position as any other court
which administers oaths; and the Act of Parliament would state, as was
done in the Act of 1858, that Any person examined as aforesaid who shall
willfully give false evidence, shall be liable to the penalty of perjury.
That is the case now with regard to Committees on private bills, and it
is the case with regard to the Committees of the House of Lords; and I
can see no reason for treating the House of Commons in a different way.7
May used the example of the courts to demonstrate that the decision to
pursue a charge of perjury would ultimately be made at the discretion of
a prosecuting authority. It need not depend on an authorization, or indeed
a complaint, of the House of Commons. This view was supported as recently
as July 2007 in a report of the House of Lords Constitution Committee on
the role of the Attorney General.8
Coercive powers have remained a feature of the UK Parliament. They continue
to be regarded as useful, but the 1999 UK Report on Privilege recommended
that they be updated. Far from suggesting that these powers be compromised
or diminished, the Committee suggested means to make them more effective,
including the enactment of a power to impose fines as an option for punishing
Canadian Experience following Confederation
The privileges of the Westminster House of Commons were entrenched in section
18 of the Constitution Act, 1867. This included article 9 of the Bill of
Rights by inference and all the inherent powers to punish for contempt.
The ability to administer oaths was not included. The need for this power,
however, was soon evident, and steps were quickly taken to provide for
The inability to administer an oath was seen as an obstacle in dealing
with applications for divorce, which were then obtained through private
bills. Within months of its establishment, the Senate was confronted with
a divorce bill that gave rise to some serious difficulties, notably the
inability of the Senate to examine witnesses under oath.10 The UK Parliament
had passed an act in 1858 to give committees of the Imperial House of Commons
a power to swear witnesses. This power was limited to the examination
of private bills. But such a power had not yet been enacted in Canada,
and so the Senate committee chose to be guided by the evidence sworn before
a Superior Court in Montreal.11
To avoid relying on this awkward precedent, and to avoid difficulty in
future cases, Parliament immediately proceeded to pass an Oaths Act in
1868. The power to administer oaths was limited to witnesses appearing
at the bar of the Senate, and extended only to select committees on private
bills of either House.
In 1873, the Pacific scandal added to the sense that a more general power
to swear witnesses was needed.12 The government was embroiled in allegations
of a kickback scheme involving contracts for the Pacific Railway. Parliamentary
scrutiny was limited by the lack of a power to swear witnesses. A new
Oaths Act was passed to grant a more general power to swear witnesses along
the lines of the British example of two years earlier.
The British government disallowed the Oaths Act on the grounds that it
was ultra vires since it exceeded the limitations of section 18. In 1875,
the UK amended the original British North America Act which enabled the
Canadian Parliament to update its privileges from time to time, so long
as they stayed in line with the UK House of Commons. In its next session,
in 1876, the Canadian Parliament adopted a new Act to give both Houses
the general power to swear witnesses. Initially, committees could only
exercise this power if authorized by the whole House on a case-by-case
basis. In 1894, witnesses could be examined at the bar of the House of
Commons. This last Act also introduced the possibility of making an affirmation
as an alternative to an oath. These provisions remain largely unchanged
There are few instances of controversy flowing from the use of the contempt
power in Canada. Two exceptions, the McGreevy case and the R.C. Miller
case, reveal its limitations and show it to be weaker than supposed.
In 1891 the House of Commons Privileges and Elections Committee inquired
into allegations of wrongdoing in connection with numerous government contracts
worth millions of dollars. Central to the allegations was the conduct
of a Member of Parliament, Thomas McGreevy. He was an MP from 1867-1891,
a member of MacDonalds Liberal-Conservative Party. During the 1880s,
he accepted vast sums of money in exchange for using his influence as a
Quebec Harbour Commissioner, as well as other corrupt schemes, which netted
him almost $250,000.
The Committee took an approach similar to an inquisitorial process. Its
report contained reference to more than 400 exhibits and some 1200 of pages
testimony from 80 sworn witnesses. The focus was almost exclusively on
documenting the criminal case. The Committee made little effort to deal
with the administrative issues arising from the episode, such as ministerial
accountability and improvements to policy that would prevent the recurrence
of such a scandal.13
For the most part, McGreevy cooperated with the Committee, appearing voluntarily
and agreeing to testify under oath. However, he steadfastly refused to
cooperate in one respect. On August 12, 1891 the Committee asked him repeatedly
to identify the person to whom he had paid $20,000. In particular, the
Committee members wanted him to answer the allegation that he had, directly
or indirectly, paid some of this money to the Minister of Public Works.
Despite the Committees insistance, McGreevy refused to answer.
On August 13, 1891 the Committee reported to the House, which in turn ordered
McGreevy to attend in his place. When he failed to appear, the Speaker
issued a warrant for McGreevys arrest, and ordered the Sergeant-at-Arms
to take him into custody. The Sergeant-at-Arms subsequently reported that
he was unable to locate McGreevy, and the House expelled him on September
The McGreevy case was among the first examples of a committee examining
allegations of serious wrongdoing in government contracts. Whatever other
value it might have, the case serves as an example of the limitations of
the contempt power as a means of securing witness cooperation, even under
oath. The House used its powers to their full extent, first ordering the
committal of the witness, and ultimately expelling him as a member. Nonetheless,
the Committee never obtained answers to all of its questions.
The House of Commons was clearly frustrated with the limitations of its
contempt power. Their frustration was aggravated by the behaviour of McGreevy,
and by their belief that several witnesses before the Committee had perjured
themselves.14 On April 12, 1892 the House subsequently adopted a resolution
authorizing the use of its committee transcripts, exhibits and other documents
as evidence in the prosecution of a range of offences including conspiracy,
misappropriation of funds and perjury.
The House was fully aware that this resolution was a direct violation of
its privileges. This understanding is revealed by the text of the resolution
because it includes an explicit disclaimer against its use as a precedent.
The resolution reads in part:
this House, while waiving its privileges in these particular cases
does not in any sense give up its well established and undoubted rights
The decision to make committee documents available to assist in prosecutions
probably had little or no practical effect; it was largely an empty gesture.
The bulk of the material was subject to ordinary court orders for the production
of documents.15 Those who testified before the committee (other than the
accused) could easily be called to give evidence in court. The only criminal
charges that would have relied on parliamentary documents for evidence
were those for perjury, for which committee transcripts were already admissible
under the Oaths Act.
The R. C. Miller Case
In the spring of 1912, the House of Commons Public Accounts Committee inquired
into whether there had been any bribes for government contracts involving
the Diamond Light and Heating Company. They summoned its former president,
R. C. Miller, to appear as a witness. He ignored the summons.
A year later, in early February 1913, he finally appeared with counsel,
was sworn in, but refused to answer any questions because his answers might
prejudice ongoing litigation. The Committee reported this failure to cooperate,
and the House ordered Miller to appear at the bar. On February 18, 1913
he appeared with counsel, was sworn, but again refused to answer questions.
The House then ordered Millers committal until such time as he agreed
to answer questions, or until the House ordered his release. He was taken
to the Carleton County jail. There is no entry in the Journals of any order
for his release, and he did not reappear at any time to answer questions.
It is assumed that he remained in jail until the House was prorogued on
June 6, about three and a half months later.
Faced with an obstinate and determined witness, the House was once again
unable to secure his cooperation using the traditional contempt powers.
If he or his lawyer knew of the McGreevy case, he may have feared that
Parliament would turn over his testimony before the committee for use as
evidence in his civil trial. If this were so, Parliaments decision to
violate its own privileges in the McGreevy case resulted in the impairment
of its capacity to persuade future witnesses to cooperate.
The possibility of such a perverse result was at the heart of a recent
court judgment involving the Commission of Inquiry into the Sponsorship
Program and Advertising Activities. The Commission had refused to allow
cross-examination of witnesses before it based on statements they had previously
made in the Public Accounts Committee of the House of Commons. In reasons
for rejecting an application for judicial review, Tremblay-Lamer J. wrote
it is important to Canadian democracy that a witness be able to speak
openly before a Parliamentary committee. This objective will be accomplished
if the witness does not fear, while he is testifying before this committee,
that his words may subsequently be used to discredit him in another proceeding
Uncertainty as to the scope of the privilege that is granted to him
may accentuate a witnesss feeling of vulnerability and prevent him from
speaking openly, which would obviously reduce the effectiveness of hearings
before Parliamentary committees.16
Mme Justice Tremblay-Lamer identified the danger of varying the protection
afforded by parliamentary privilege, after the fact, to witnesses. Once
they become aware of this possibility, witnesses, being apprehensive of
the scope of this privilege, would be less inclined to provide truthful
and complete answers. With the credibility of the parliamentary process
in doubt, its effectiveness would be seriously jeopardized. By analogy,
the Canada Evidence Act, first adopted in 1893, prohibits the use, under
certain conditions, of incriminating testimony that was given under compulsion
from being used or admissible in any subsequent legal proceeding, either
criminal or civil.17 The underlying principle of natural justice behind
this Act may also explain why authorities such as Maingot and the UK Joint
Committee on Parliamentary Privilege reject the idea of ex post facto waiver.18
Both maintain that any regime to allow a waiver of privilege can only
be accomplished before the fact by the enactment of an explicit statute
which suggest that a waiver of a parliamentary privilege, a part of the
law, could not be subsequently done by a resolution. Their assertion is
supported by precedents like the Oaths Act. Prosecution for perjury for
statements made by a witness must, by definition, rely on the evidence
provided to Parliament or one of its committees and necessarily involves
the impeachment or questioning of a debate or proceeding in a court or
place outside of Parliament.
In its first 15 years, Parliament considered 18 applications for divorce.
At that time, a request for divorce was managed through legislation and
treated like any other private bill. Once the preliminary stages had been
completed, including publication of notice and a statement of proof of
service made at the bar of the Senate, the petition was referred to a special
committee. The subsequent report was extensively debated in the Senate.
It was soon recognized that this time-consuming procedure was impractical.
In 1888 a simplified process was put in place, together with a Senate standing
committee on divorce.19 The House of Commons also had a divorce committee,
but its review almost always followed that of the Senate. The Senate committee
operated for over eighty years; it was dissolved in 1969 after the Divorce
Act established uniform judicial divorces across the country, including
Quebec and Newfoundland, the last jurisdictions to rely upon parliamentary
Witnesses appearing before the Senate divorce committee were always sworn
in. Their examination on oath was a critical feature in determining whether
the petition was well founded and whether the divorce should be granted.
In remarks made in the Senate in 1962, the long-time Chair of the Divorce
Committee, Senator Arthur Roebuck, took note of the importance of the oath
by stating that the Committee had had some difficulty with perjured evidence,
and that there were currently three people convicted and imprisoned, with
more cases pending.21 Each suspected case of perjury had been reported
to the provincial Attorney General.22
The divorce process was a genuine strain on the members of the committee
and by the 1960s they were dealing with hundreds of petitions each session.
By leaving the allegations of perjury in the hands of the Ontario prosecutor
who is the chief law enforcement officer for any crimes committed within
that jurisdiction, the Committee members were better able to focus on the
petitions before them, and not be further encumbered with the onus of punishing
those witnesses who were deemed to be lying to the Committee. Furthermore,
the Crown was able to press for greater punishments than could be imposed
under contempt.23 This was viewed as desirable since the perjury had led
to the passing of an ill-founded Act of Parliament. When the accused were
brought before the magistrate, all pled guilty, with one receiving five
years imprisonment, a term far beyond any allowed through contempt. This
criminal process would not have precluded the Senate from pursuing the
witnesses for contempt as well, though this does not appear to have happened.
The contempt power has remained largely static since Confederation. The
last substantial change to the power to swear witnesses occurred 113 years
ago, in 1894 when the Oath Act was amended to allow committees of either
House to administer oaths and to allow affirmations in plae of oaths.
Since then, the context in which the privilege and related powers are used
has changed dramatically. The privileges and in particular the coercive
powers have been infrequently used. Their adaptation to a modern context
is hindered by a lack of practical understanding and real-world application.
Parliaments access to information may be compromised if these powers,
particularly the coercive ones, are not optimized for the current context.
Parliament now operates in a public domain that is radically different
from a century ago. Parliamentary proceedings are disseminated broadly
and instantly through every electronic means. Mass media, 24-hour news,
and widespread internet access subject the use of powers to broader and
more critical scrutiny than was possible a century ago. Suspicion about
the possible commission of perjury may now come from sources outside Parliament.
Government has grown exponentially in the last 60 years. In the early years
of Confederation, there were fewer than a dozen cabinet ministers, and
the role of government was limited. Today, cabinet typically has up to
40 members. Parliament superintends nearly 100 departments, boards, agencies,
commissions, special operating agencies and Crown corporations.
There is an ever-increasing need for ready access to reliable information
to facilitate the difficult task of scrutinizing an organization as complex
as the Government of Canada. In turn, there is an ever-increasing imperative
to ensure complete, truthful and accurate testimony from cooperative witnesses.
The coercive powers of Parliament were developed long before human rights
were constitutionally entrenched in the Charter. The Supreme Court decision
in Vaid demonstrates that old assumptions about the powers and privileges
of Parliament cannot be taken for granted.24 The lesson drawn, (in the
context of this paper), is that coercive powers need to be reviewed and
immunized against potential challenge. In particular, the power to imprison,
when exercised for punitive purposes, is vulnerable to challenge under
The entrenchment of rights has also led to a change in attitudes towards
public institutions. In an era of constitutionally enforceable rights,
people seem to be less deferential and there have been a number of recent
court cases challenging some parliamentary privileges and practices.25
In such an era, the incidence of reluctant or uncooperative witnesses
may increase as a result, making the powers of committees all the more
As government departments and programs have multiplied, so have the number
of parliamentary committees scrutinizing them. To deal with this workload,
Parliament has been forced to rationalize its role and internal procedures.
It has streamlined the work of the respective Chambers by establishing
time limits on debate, by simplifying the supply process and by adopting
rules for time allocation. Each Chamber has delegated much of its work
to standing committees and to important parliamentary officers such as
the Auditor General.
There were a mere handful of witnesses per session in the years following
Confederation. Now, thousands of witnesses appear and written submissions
are received every session. As a result, the hours spent in committee have
increased dramatically as has the number of reports produced. It should
be noted that this work comprises the vast majority of a committees time.
The need for examining witnesses under oath has become minimal, given that
most witnesses appear voluntarily before committees to provide their opinions
and advice on policies and bills. Oaths are now almost exclusively used
for fact based investigations that seek to determine the truth or establish
a sequence of events.
Parliament has done a lot to accommodate the expansion of its responsibilities,
yet it has done very little to review much less update its coercive
After more than a century of evolving context, it might be time to review
the tools at Parliaments disposal for ensuring access to information.
The best time to conduct such a review would be before those powers are
put to the test. The quality of information and the effectiveness of the
tools that make it available are the measure of a robust democratic government
and a healthy public policy process.
The first option to consider would be a stronger status quo. A cursory
examination could conclude that contempt powers and the right to swear
in witnesses are adequate. Developments in the political and communications
context may not indicate a need to make any significant changes. Even so,
there may be room to improve understanding and to make the application
of these powers more consistent and more effective through the development
of procedural tests for chairs to determine under what circumstances it
would be appropriate to hear witnesses under oath. Moreover, the materials
that have been developed for the information of witnesses provide considerable
detail on how to make an effective presentation to a committee. They also
give an explanation of the protection that privilege affords witnesses.
However, the materials are not really comprehensive and contain no explicit
information whatsoever about the potential consequences to witnesses who
fail to cooperate or who deliberately mislead a committee, whether under
oath or not.
Coercive powers are well established, and they have been exercised successfully
in the past. This inertia is the main advantage of maintaining the status
quo. Nonetheless, a review would present an opportunity to draw on best
practices, to strengthen these powers in the Charter era, and to be realistic
about the powers that can actually be exercised in a given context. The
risk of successful legal or political challenges to the use of these powers
might be reduced if a review leads to a principled and coherent procedure
for using them in the interest of public policy and democratic accountability.
The disadvantage of maintaining the status quo is that it eschews the chance
to innovate in this area. It would mean missing an opportunity to develop
tools that more effectively guarantee information for the parliamentary
process. In addition, there is the significant risk of legal challenges,
especially to aspects of these powers that conflict squarely with Charter
Another possible outcome of a review would be a decision to simply abandon
powers that have largely gone unused, and whose utility is in doubt by
an examination of past experience. In a recent Congressional Research Service
report, the inherent contempt powers of the United States Congress were
characterized as unseemly, cumbersome, time-consuming and relatively ineffective.26
A similar assessment might be made in Canada.
The advantage of doing away with the power generally to imprison, as the
UK Report on Privilege recommended, is the abolition of a feature of privilege
that many regard as anachronistic and even detrimental to the dignity of
Parliament. It would also avoid the clear potential for a conflict with
The risk of taking this approach is that Parliament might discover a need
for these powers after they have been abolished. In the midst of a conflict
with a problematic witness, it would not be possible to re-establish a
power that has been eliminated by statute. Such a repeal would also be
a simplistic approach that does not consider the complexity of the issues
that gave rise to the contempt power.
Finally, there is the option to undertake a review to consider possibilities
for updating the existing powers or even developing new means to address
the requirement for quality information in the parliamentary process.
Such possibilities are wide-ranging, and the experience of other jurisdictions
points to innovations that could be adapted to Canadian needs. The means
of implementation can range from a change in practices, the adoption of
new rules or standing orders, or to the enactment of a statute in certain
For example the Australia Parliamentary Privileges Act 1987 has established
the power to fine for contempt, as a middle ground between admonishment
and imprisonment. The UK Joint Committee has recommended that its Parliament
follow suit, but such fines would be imposed by the House in the case of
members, and by the courts in the case of non-members.
The United States Congress has built upon the 19th century British model
of criminalized false testimony through the inherent contempt power. They
have gone further by externalizing the means of dealing with uncooperative
witnesses more generally, and subjected uncooperative behaviour to criminal
sanction. Moreover, in respect of contempt power, the United States Senate
has established a third way: the legal device of civil contempt has been
added to its arsenal of inherent and criminal contempts. Civil contempt,
granting to a court the jurisdiction to deal with any action based on a
contempt suit brought by the Senate Legal Counsel, has significantly reduced
the burden associated with exercising contempt powers, and helped find
a middle ground between the almost meaningless punishment of admonishment
and the extreme alternative of imprisonment.
Canada has used the American model of criminalizing non-cooperation when
it has established certain boards, agencies and commissions under the Inquiries
Act. Yet they have never considered using this approach to augment the
investigative powers of parliamentary committees. Harnessing the criminal
process, which has been Charter-proofed, has the distinct advantage of
minimizing legal uncertainties.
In recent years, the House of Commons has twice considered the possibility
of waiving its privileges in connection with the testimony of some witnesses.27
As mentioned above, several authorities question the legal implications
of using a resolution to this end. If waivers are to become a weapon in
Parliaments arsenal, the review would help identify and implement a legally
sound basis for them, a set of criteria for determining when to use them,
and an appropriate procedure for exercising them.
Innovation in the field of parliamentary privileges and powers is not free
from risk. Exchanging ancient and well-established powers for new procedures
also carries with it the possibility of other legal challenges. However,
a comprehensive review that takes into account the modern political, legal,
constitutional and social context would help to craft innovative approaches
that anticipate and mitigate such risks.
The contempt power and the use of oaths are still useful tools that can
be used to maintain the capacity of committees to have access to witnesses
and information that parliamentarians need to do their job properly. Today,
more than ever, access to reliable information is essential if Parliament
is to be effective in its lawmaking and accountability functions. At the
same time, there is an equal need to recognize the evolving legal and social
climate in which Parliament operates. The Charter has profoundly changed
attitudes towards personal rights. All the more reason, then, to seriously
reconsider the manner in which Parliament uses its coercive powers.
The traditional forms of admonition and reprimand may not be the most effective
means of persuading reluctant or stubborn witnesses to co-operate. The
cases of Thomas McGreevy and R. C. Miller, despite the fact that they occurred
many years ago, remain useful reminders that Parliaments coercive powers
are limited. And now, imprisonment, the most extreme coercive power, is
a problematic option, both politically and legally. It is open to question
whether any prison sentence imposed by the House of Commons or the Senate
could survive a court challenge absent guarantees of procedural fairness.
Equally important, any inconsistent application of privileges through a
waiver, as occurred in the McGreevy case, can also serve to undermine the
ability of Parliament to obtain the necessary information or evidence needed
to properly form its decisions.
While the use of oaths is allowed in committees of both Houses, punishment
for perjury has been rare; all identified cases have related to petitions
for divorce, before that process was relegated to the courts in 1969. Nonetheless,
experience suggests that the use of the oath power has generally been sufficient
in itself to impress upon witnesses the importance of giving truthful answers.
This experience may be a useful consideration to the review of Parliaments
coercive powers. The strength of its power lies in the fact that all negative
consequences for an untruthful witness accused of perjury are achieved
through the criminal justice system, which over the years has developed
systems and procedures that accord with legal and constitutional norms.
If there is to be a review of Parliaments coercive powers, it appears
that there are really three basic options: retain the current powers; abolish
all or some of them; or update and develop new ones. In the end, the result
could lead to a preference for one of these options or, just as likely,
some combination of the three. Whatever the final choice, a review should
ensure that Parliament will be ready to deal with future obstacles to obtaining
the information that is essential to its proper functioning.
1. Stockdale v. Hansard, (1839), 112 E.R. 1112, p.1117.
2. Joint Committee on Parliamentary Privilege, Parliament of the United
Kingdom, Report and Proceedings, 318, p.82.
3. See J.P. Joseph Maingot, Parliamentary Privilege in Canada 2nd ed.,
House of Commons and McGill Queens University Press, 1977 pp. 144-145
and p. 192 n. 71.
4. Defamation Act 1996 (UK), s.13.
5. Pepper v. Hart,  A.C. 593 and Prebble v. Television New Zealand,
 1 A.C. 321 (P.C.).
6. See UK House of Commons Journals: December 8, 1857, p.10, Attorney General
is directed to prosecute Edward Auchmuty Glover for presenting false evidence
in the Beverley election hearing. January 24, 1860 p.38, Attorney General
is directed to prosecute William McGall for giving perjured evidence to
the Committee of Elections investigating the Berwick-Upon-Tweed election.
April 23, 1866, p. 239, Henry Chambers presented perjured evidence in
the Maidstone Election investigation, and the Attorney General was directed
7. Erskine May testimony, question 89.
8. United Kingdom House of Commons Constitutional Affairs Committee, Constitutional
Role of the Attorney General, 5th Report of Session 2006-07.
9. The Whiteaves divorce case was the impetus for allowing select committees
to examine witnesses under oath.
10. Nova Scotia and New Brunswick had existing divorce courts prior to
Confederation, which continued unchanged after 1867. As the Province of
Canada had no equivalent court, divorce petitions from Ontario and Quebec
were referred to the Senate. For further discussion on the need to examine
witnesses under oath, see Senate Debates, March 31, 1868; April 30, 1868
and May 4, 1868.
11. See Senate Debates, April 30, 1868 pp.232-234 and House of Commons
Journals, May 4, 1868, p.275.
12. See House of Commons Debates, April 18, 1873.
13. See the: Reports of the Select Standing Committee on Privileges and
Elections relative to Certain Statements and Charges Made in Connection
with the Tenders and Contracts Respecting the Quebec Harbour Works and
the Esquimalt Graving Dock, bound in volume as Tarte vs. McGreevy, 1891,
Library of Parliament. See Report 7 in that volume for the detailed charges
14. See House of Commons Journals, September 24, 1891, p.529.
15. See The Queen v. Connolly and McGreevy, 1 C.C.C. 468,  O.J. No.
119, 25 O.R. 151, esp. pp.473-475.
16. Gagliano v. Canada (Attorney General) (F.C.)  3 F.C. 555, paras.
77 and 78.
17. Canada Evidence Act, s.5(2).
18. See J.P. Joseph Maingot tesstimony to the Subcommittee on Parliamentary
Privilege of the Standing Committee on Procedure and House Affairs, Nov.
16, 2004, p.39.
20. Thomas J. Abernathy, Jr. and Margaret E. Arcus, The Law and Divorce
in Canada, The Family Coordinator, Vol. 26, No. 4, October 1977, pp.409-413.
21. Journals of the Senate, December 11, 1962, pp.410-11.
22. Journals of the Senate, June 1, 1954, p.519.
23. The men could only have been held in prison for contempt until the
end of session, on Feb. 6, 1963, a term of less than 3 months. The maximum
penalty for perjury is up to fourteen years imprisonment, whereas for a
contempt of Parliament, one can only be imprisoned until the end of that
24. Canada (House of Commons) v. Vaid,  S.C.R. 667, 2005 SCC 30.
25. Notably in Knopf v. Canada (House of Commons), 2006 FC 808, 3430901
Canada Inc. v.
Canada (Minister of Industry), (1999), 177 F.T.R. 161 and
Ainsworth Lumber Co. v. Canada (Attorney General) and Paul Martin, (2003),
15 B.C.L.R. (4th) 255.
26. Congressional Research Service, Report for Congress, Congresss Contempt
Power: Law, History, Practice and Procedure, July 2007, p.15.
27. See especially the 14th Report of the Standing Committee on Procedure
and House Affairs, 2004 and the Report of the Standing Committee on Public
Accounts of June, 2007.