Charles Robert is a Deputy
Principal Clerk and Deborah Palumbo is Senate Legal Counsel with the Senate Law
Clerk and Parliamentary Counsel Office. This is a revised version of an article
presented to the 1998 Professional Development Seminar of the Association of
Clerks-at-the-Table in Canada, and to the 1998 annual meeting of the
Association of Parliamentary Counsel and the Association of Legislative
allows parties located at the opposite ends of the globe to experience
simultaneous two-way video and audio communication. In addition to its
tremendous implications for the business world, the technology is gradually
having a similar impact in the parliamentary context. This raises three broad
issues in the area of parliamentary law and privilege. The first is whether
parliamentary privilege applies to members of committees who participate in
videoconferences. The second is whether videoconferencing creates a sufficient
“physical presence” to entitle members to be counted as part of quorum and to
enable them to move motions and vote. The third is whether parliamentary
privilege attaches to witnesses who testify before committees by
The concept of privilege arises from the notion that
parliamentarians and legislators require certain exemptions or immunities from
the general law in order to allow them to carry out their duties.1
Immunity from arrest in civil
matters and freedom from molestation are examples of some of the privileges
that have been traditionally recognized. Perhaps the most important privilege
is that of freedom of speech. The ultimate source of this privilege is Article
9 of the English Bill of Rights, 16892, which provides that:
The freedom of speech and
debates or proceedings in Parliament ought not to be impeached or questioned in
any court or place out of Parliament.
Thus a member of either House of
Parliament is immune from civil or criminal prosecution for any speech or
comment made in carrying out parliamentary functions.3 The Ontario
Court of Appeal explained the importance of this privilege when it stated that
freedom of speech serves to protect a member from “harassment in and out of the
House in his legitimate activities in carrying on the business of the House.”4
The Bill of Rights, 1689
is not restricted to members of Parliament. The protection provided by it is
extended to include witnesses, petitioners, legal counsel and any others who
participate in a parliamentary proceeding. Bourinot explains that with respect
to any witnesses: “no evidence given in either House can be used against the
witness in any other place without the permission of the House”.5
Even the courts have
acknowledged that witnesses are included within the protection provided by
Article 9 of the Bill of Rights, 1689.6
Joseph Maingot, Q.C., author of Parliamentary
Privilege in Canada, explains what this protection means — witnesses called
before parliamentary committees are protected against civil and criminal
action, except prosecutions for perjury where the evidence was given under
The protection provided to
witnesses is only an extension of the protection provided to members of both
Houses. It is not a right or guarantee belonging to a witness, and
consequently, the immunity can be withdrawn by the respective House.8
This immunity is important,
nonetheless, because of the informal nature of parliamentary committee
proceedings. Committees are not required to follow the strict rules of evidence
that must be followed in the courts. As such, many of the protections provided
to witnesses in court are not provided to committee witnesses – one such
example is solicitor-client privilege. The fact that quorum is not even
required for a committee meeting where the sole purpose of the meeting is to
hear evidence from witnesses illustrates the informal atmosphere in which
committees operate. Also, unlike a court room, in which all witnesses must be
sworn in, committee witnesses do not usually take an oath prior to giving
Given that witnesses before
parliamentary committees are usually granted the same protection as that
provided to members of Parliament, the conclusions with respect to witnesses
should mirror those with respect to members. If the protection applies to a
member, the same protection will normally also apply to a witness.
With respect to
videoconferencing, the main issue is whether a member or a witness who
participates in a committee hearing by way of this technology is participating
in a “proceeding in Parliament”. If so, parliamentary privilege would attach.
This question raises three sub-issues.
Is a member
or witness participating in a “proceeding in Parliament” when the committee and
the member or witness are located in Canada but the member or witness is
participating by way of a videoconference from another location in Canada?
Is a member
or witness participating in a “proceeding in Parliament” when the committee is
authorized to travel outside Canada and the member or witness is also
participating outside Canada by videoconference?
Is a member
or witness participating in a “proceeding in Parliament” when the committee is
sitting in Canada and the member or witness is participating by videoconference
Committee Located in
Canada and Member or Witness Appearing by Videoconference in Canada
Article 9 of the Bill of
Rights, 1689 does not specifically describe what the phrase
“proceedings in Parliament” includes. Although the phrase has been
judicially considered, it has never been defined in Canadian statute law.9
In Australia, however,
subsection 16(2) of the Parliamentary Privileges Act, 1987 does define
it. This subsection states:
16. (2) …“proceedings in
Parliament” means all words spoken and acts done in the course of, or for
purposes of or incidental to, the transacting of the business of a House or a committee,
and, without limiting the generality of the foregoing, includes:
(a) the giving of evidence
before a House or a committee, and evidence so given;
(b) the presentation or
submission of a document to a House or a committee;
(c) the preparation of a
document for purposes of or incidental to the transacting of any such business;
(d) the formulation, making or
publication of a document, including a report, by or pursuant to an order of a
House or a committee and the document so formulated, made or published.
This provision, drafted before
videoconferencing was a practical option, makes no specific reference to the
location in which the evidence might be given or where the documentation might
be prepared. Therefore, on the face of the law, there is certainly no
restriction in this regard.
Generally, the phrase
“proceeding in Parliament” has been considered a somewhat flexible concept, not
strictly limited to proceedings that take place within the precincts of
Parliament or to debates on the floor of the Chamber. In some jurisdictions
even correspondence of parliamentarians that relates to their parliamentary
duties and functions can also be protected by privilege.10
Since parliamentary committees are
considered an arm of the Chamber and their proceedings are valid “proceedings
in Parliament”, parliamentarians and witnesses are protected when they
participate in such hearings.11 This protection exists for members
whether they are part of quorum or not.12
The use of videoconferencing
should not alter this situation when the committee is sitting in Canada. The
committee’s proceedings would be “proceedings in Parliament” and members or
witnesses who participate in them, whether they do so in person or by
videoconference within Canada, would be protected by privilege. This is because
it is their participation in the “proceeding in Parliament” that provides them
with this protection, not their location. According to Maingot, the location of
the “proceeding”, as in the case of a court, is irrelevant for the purposes of
it being a “proceeding in Parliament” if the committee is located somewhere in
With respect to committees of
provincial legislatures, the rationale for protecting the member or witness is
virtually identical. If a committee meeting is held anywhere within the
province, privilege would attach to the statements of a member or witness
participating by videoconference if the member or witness is within the
province. The meeting is a “proceeding in Parliament” and the location of the
member or witness is irrelevant. The necessity for the protection is not
diminished in any way by the fact that the participation by videoconference is
occurring from another location in the province.
Committee Located Outside
Canada and Member or Witness Appearing by Videoconference Outside Canada
If both the committee and the
member or witness were located outside Canada and the member or witness
participated by videoconference, the answer to the question of whether
privilege attaches is obvious. Privilege would not protect the member or
witness from prosecution or civil suits in Canada or in the foreign country
because the jurisdiction of Parliament is not extra-territorial and, generally,
Canadian law does not apply outside its borders.14 Any activity conducted
outside the boundaries of Canada could not be regarded as a “proceeding in
Parliament”. Maingot confirms that a committee cannot be constituted outside
As to committees of
legislatures, if the committee meetings are held outside the province and the
member or witness is also participating outside the province but by
videoconference, privilege would not protect the statements.The reason for this
is that the committee is not functioning as a committee because it is outside
the jurisdiction of the province.
Committee Located in
Canada and Member or Witness Appearing by Videoconference Outside Canada
The remaining question is
whether a member or witness who participates from outside Canada, by
videoconference in a committee proceeding taking place somewhere in Canada, is
protected by privilege. This is a somewhat more complex issue because the
committee is within the jurisdiction of Parliament but the member or witness is
A purposive approach would
require an examination of the rationale for the privilege and a determination
of whether the justification for the privilege exists in the particular
At least one author has argued
for a purposive approach. Maingot takes the position that the phrase
“proceeding in Parliament” should be given a broad and liberal interpretation;
its meaning should not be restricted to its intended application in 1689. He
writes that, in interpreting this phrase today, it is important to be mindful
of the primary reason for the protection. The purpose was to allow members to
carry out their duties and functions unfettered by concerns of any hostile
reaction by the Crown, or of any possible liability for things said and done in
relation to parliamentary matters.16 He argues that privilege is
founded on necessity. As such, necessity should be a basis for any claim that
an event was part of a “proceeding in Parliament”. In other words, any event
that is necessarily incidental to a “proceeding in Parliament” should be
Following this approach, it
would seem that the manner in which the member participates should be
irrelevant for the purposes of privilege. The justification for allowing a
member freedom of speech in parliamentary proceedings exists regardless of any
new technological developments that may alter the manner in which the member
participates in the proceeding.
Moreover, when the committee is
sitting in Canada, it is clearly a “proceeding in Parliament” and the member is
in fact participating in this proceeding through videoconference. The member’s
location would seem to be irrelevant once these facts have been established.
Whether something falls within
the meaning of the phrase, therefore, should depend on whether the privilege is
necessary in the particular circumstances. Clearly, the need for protection is
in no way diminished by virtue of the fact that the member participates by
The theory that parliamentary
privilege should be applied to statements based on their purpose and context
has indirect support in Canadian case law. On one occasion,17 a
member’s statement to a journalist within the confines of Parliament was not
afforded the protection of parliamentary privilege because the statement was
not made for law-making purposes.18 The court held that the location
of the statement is irrelevant for the purposes of parliamentary privilege. The
purpose of the statement, the context in which it is made and whether it was
made for private or parliamentary purposes are the relevant issues. Therefore,
it seems that statements made abroad by way of videoconference for the purpose
of participating in a parliamentary committee sitting in Canada should be
Taking this approach, a member
or a witness who appears by videoconference from outside Canada before a
committee located in Canada should be protected from actions initiated in
Canada, although privilege would not protect the member or witness from
prosecution outside the country.
The situation is little different
for committees of provincial legislatures. Privilege should apply to protect
members and witnesses in the province for statements they make in a proceeding
by videoconference from outside the province if the committee is located
somewhere within the province. However, the member or witness would probably
not be protected from legal actions pursued outside the province.
Furthermore, the trend is to
strengthen their protection before committees, not to weaken it. Also, the
privilege accorded to documents and the protection provided to witnesses
through the Charter reinforce a tendency to protect the rights of
witnesses. In 1981, the Ontario Law Reform Commission recommended passage of
legislation both at the federal and provincial levels to clarify and, possibly,
expand the protection of witnesses before legislative committees.19
The Commission recommends the
enactment by the Province of Ontario of broad statutory provisions protecting
witnesses in respect of the use of their evidence at subsequent proceedings.
More specifically, we recommend that a witness who gives evidence at any
legislative committee proceedings – whether such evidence is given orally, by
way of affidavit, by the provision of documents, or otherwise – should have the
right not to have any evidence so given used against the witness in any
subsequent proceeding, except in prosecution for perjury or for the giving of
The reference by the Commission to
the right of witnesses not to have incriminating evidence used against them in
subsequent proceedings is a codification of the existing law; however, as noted
above, the Commission also went further and recommended additional protections
As to videoconferencing, the
broad language used in the Commission’s recommendation seems wide enough to
cover evidence given by way of this technique.
Furthermore, the Commission
recommended that the protection of witnesses should be absolute and automatic
and the committee should not have the power to withdraw it. The overriding
concern of the Commission in making these recommendations seems to have been
the risk of bad faith and the perceived vulnerability of a witness if
committees retained the power to withdraw immunity.20
One could take the Commission’s
reasoning even further and focus on fairness; witnesses should be protected in
all cases as a matter of fairness and due process. In other words, if
witnesses before committees are not entitled to the protections provided by
evidentiary rules of law, they should at the very least be entitled to immunity
from civil actions and most criminal prosecutions, except for perjury.
When the Law Reform Commission
published its Report, a task force of lawyers from the National Assembly and
the Ministry of Justice in Quebec was also being given a mandate to recommend
ways to ensure better protection of witnesses appearing before legislative
committees. This Task Force was formed in the 1980s as a result of a committee
investigation of Premier Lévesque’s alleged involvement in an out-of-court
settlement of the damage suit arising from riots at the James Bay worksites.21
The Task Force’s Report of August 1984 recommended that any person giving
evidence before a committee of the Assembly should be considered a witness
whose rights are deserving of protection, regardless of the circumstances that
brought the witness before the committee. The Report made a number of
recommendations for protecting witnesses, including the right to receive notice
of the hearing several days in advance and the right to counsel.22
These reports illustrate the
trend in Canadian jurisdictions towards broadening the protections provided to witnesses
who appear before legislative committees, regardless of the manner in which
they testify. This, in turn, supports the notion that witnesses who testify by
way of videoconference should be entitled to the same privileges and
protections as those who appear in person before committees within Canada.
The conclusion that witnesses
appearing by videoconference from outside Canada to give evidence to a
committee sitting in Canada should also be protected is supported by the fact
that documents prepared for Parliament have been protected. This is important
because a parliamentary committee sitting in Canada may receive documentation
from abroad and this is similar in many ways to a parliamentary committee
sitting in Canada that receives oral testimony from a witness who is physically
The Canadian Charter of
Rights and Freedoms also illustrates the trend towards strengthening the
protection of witnesses generally. Section 13 reads:
13. A witness who testifies in
any proceedings has the right not to have any incriminating evidence so given
used to incriminate that witness in any other proceedings, except in a
prosecution for perjury or for the giving of contradictory evidence.
This section has provided
protection to witnesses against the use of evidence given in court in
subsequent criminal proceedings. And although it is unclear on the face of the
section whether the expression “any proceedings” includes parliamentary
committee hearings for the purposes of the Charter,24 section
118 of the Criminal Code25 defines the phrase “judicial
proceeding” as including a “proceeding…before the Senate or the House of
Commons or a committee of the Senate or the House of Commons, or before a
legislative council, legislative assembly or house of assembly or a committee
thereof that is authorized by law to administer an oath…”.
It should be noted, however,
that no protection is offered in relation to civil proceedings.26
Moreover, all Charter rights are subject to “such reasonable limits
prescribed by law as can be demonstrably justified in a free and democratic
society” (section 1 of the Charter).
Quorum and Voting of
Members: The Senate Perspective
Participation in committee
hearings by members through videoconferencing raises a number of other issues.
First, does attendance by the member through videoconference constitute
attendance for the purposes of quorum? Can that member be considered
present for the purpose of moving motions and voting?
As a matter of practice,
physical presence has always been an absolute requirement in order to
constitute a sitting of the Senate. Section 35 of the Constitution Act, 1867
requires the presence of at least 15 Senators, including the Speaker, for the
Senate to be able to conduct any business. The word “presence” is not defined
in the section. Nor is it defined in rule 9(1) of the Rules of the Senate,
which reiterates the requirement of 15 Senators to constitute quorum.
If quorum is not present at the
opening of a Senate sitting, the Speaker will usually wait for a short period
until 15 members are present before proceeding to “Senators’ Statements”. If,
at any subsequent point in the sitting, a formal count of the House is taken
and there is no quorum, the Senate will adjourn to the next sitting.
Similarly, when Senators are
expected to vote on any question, either by voice or recorded division, they
must be present in the Chamber in order to participate in the process. In the
case of a voice vote, the Speaker asks for the “yeas” and “nays”; for a
recorded division, Senators must rise in their places to be counted. Rule 66(4)
of the Rules of the Senate states that “no Senator shall vote who was
not within the Bar of the Senate when the Speaker put the question”. It also
states that “Senators shall vote only from their place in the Senate”.
Committees, as subordinate
entities of the Senate, cannot exercise any powers beyond what the Senate
itself possesses. Accordingly, practice has required that Senators be
physically present where the committee is meeting in order to be counted for
quorum and to exercise the right to move motions and to vote. Under current
rules, at least four Senators must be present for most committees to be able to
conduct formal business and make decisions. Therefore, unless the Senate
changes its quorum and voting practices, Senators who participate by
videoconference cannot be counted as present for quorum purposes nor can they
move motions or vote.
In the Senate, there has only
been one committee meeting, thus far, where a Senator participated by videoconference.
Senator Perrault was involved in a proceeding of the Standing Senate Committee
on Fisheries by videoconference from Vancouver on May 27th, 1998.
The minutes of the proceeding noted that the Senator was in attendance by
videoconference. There was no question about quorum as the number of members
located in the committee room exceeded the minimum four and, since the purpose
of the meeting was to hear witnesses, the committee did not deal with any
substantive motions or hold any votes at that meeting. Senator Perrault was
allowed to participate by asking questions and making comments. However, it is
doubtful that he would have been able to participate by voting or moving
motions because the Rules of the Senate require physical presence for
Other jurisdictions have
examined the question of how videoconferencing would affect quorum. For
example, the New York State Legislature has looked at the issue and resolved it
by requiring physical presence. The State legislated that quorum for a
committee meeting exists through members who are physically present at a
central location. However, other videoconference attendees will be counted as
present as long as there is a quorum. In fact, the state legislature has
declared a meeting to be any gathering of people, whether in person or by
videoconference. Thus, if Canada were to follow the New York example, a quorum
would continue to require physical presence but other members appearing by way
of videoconference would be considered present for attendance purposes.
Potential Limitations on
The use of videoconferencing in
order to receive testimony from outside Canada also raises a problem that stems
from the very nature of the testimony. In courts of law, rules of evidence
permit witnesses to refuse to answer certain questions if they can establish
sufficient grounds to do so. For example, witnesses may refuse to answer on the
basis that they risk incriminating themselves. Other privileges that may
be claimed in court include solicitor-client privilege and doctor-patient
privilege. The rules of evidence vary from country to country.
In Canada, since the rules of
evidence do not formally apply to committee proceedings, witnesses can be
obliged to answer all questions put to them.27 The impact of this
general requirement is, however, mitigated by the fact that the privilege of
freedom of speech and immunity from prosecution usually extends to all
witnesses appearing before committees.
In cases where a witness
testifies from abroad by way of videoconference, even if it may be concluded
that parliamentary privilege attaches to such a witness to protect the person
from criminal prosecutions and civil suits within Canada, Parliament may be
limited in its own powers over the witness. Witnesses testifying from abroad
are not protected from criminal prosecutions or civil suits carried out in the
foreign country, although they should be entitled to the privileges that
country offers for the purposes of evidence law.
Rules of comity28 and
sovereignty require that a citizen of another country be given that country’s
protections on that country’s soil. Witnesses who are testifying from abroad
cannot be forced by the Canadian Parliament to answer questions over their
objections. As stated earlier, Parliament’s jurisdiction does not extend beyond
the borders of Canada.
This fact seems to support the
notion that, when videoconferencing involves witnesses giving testimony in a foreign
country, that country’s laws, and not those in Canada, should apply. In other
words, when a committee is sitting in Canada and the witnesses are testifying
by videoconference from abroad, they should receive only the protection of the
jurisdiction in which they are physically present. Statements made by committee
members and those made by witnesses who are all physically located in Canada
would be privileged, but any statements made by members or witnesses from
abroad would not.
However, it is also arguable
that, in these circumstances, the proceeding is clearly a “proceeding in
Parliament” because the committee is sitting in Canada, even though the witness
is abroad. Therefore, Canadian parliamentary privilege should apply.
There are three international
conventions covering the taking of evidence abroad:
Convention on the Taking of Evidence Abroad in Civil and Criminal Matters
Inter-American Convention on the Taking of Evidence Abroad (Panama, 1975), and
Convention on the Obtaining Abroad of Information and Evidence in
Administrative Matters (Strasbourg, 1978).
Canada, however, is not a party
or a signatory to any of those treaties. Therefore, Canada must look to
international common law in order to determine the extent of recognition
required in Canada respecting the privileges provided to witnesses testifying
in other countries.
Videoconferencing in the court
system provides an interesting parallel to videoconferencing in the
parliamentary system. Videoconferencing is not a new phenomenon in the Canadian
legal system. At the trial level, civil courts have made sparing use of the
medium for live expert witness testimony.29 The technique has also been used in
sexual assault cases involving witnesses who are minors and who may be subject
to trauma or intimidation.30 At the appellate level, videoconferencing has been
used for motions and applications seeking leave to appeal where an oral hearing
has been scheduled for some time but has not yet taken place.
In October 1991, the Supreme
Court of Canada’s videoconferencing service was expanded to include oral
submissions on appeals.31 The Ontario Court of Appeal issued a
similar Practice Direction in December of 1995.32 The Federal Court
of Canada has also made use of the technique. In fact, it recently cut its
travel budget by 10 % through the use of videoconferencing.33
Another example of the use of
videoconferencing in court proceedings is the Nova Scotia Court of Appeal which
used the technology in a sentencing hearing.34
To date, the courts have used
videoconferencing to receive lawyers’ submissions but have been reluctant to
use it for the purpose of hearing testimony from witnesses.
An interesting case involving
videoconferencing of testimony from an accused occurred in the Vancouver
Provincial Courthouse in February 1997. On this occasion, Judge Kitchen
conducted a deposition hearing by way of videoconferencing. One of the accused
appeared by video from Hong Kong and the other appeared by video from Taipei,
Taiwan. Judge Kitchen adopted the written submissions of Crown Counsel from the
pre-trial conference as the basis for the jurisdiction to utilize the
procedure. The Crown’s submission contained two alternative arguments in favour
of the use of the technique.
The first argument made
reference to paragraph 537(1)(j) of the Criminal Code, permitting
an accused to appear “…by closed circuit television or other means that allow
the Court and the accused to engage in simultaneous visual and oral
communication for any part of the inquiry other than the part in which the
evidence of a witness is taken.”
As to the second argument, the
Crown also held that the remote physical appearance by the accused from Taipei
constitutes physical appearance in the Vancouver courtroom, because the
technology ensures simultaneous visual and oral communication between all
participants in the proceeding taking place in British Columbia. Consequently,
all the essential hallmarks of the court experience existed.
Unfortunately, the judge did not
indicate the basis on which he permitted the hearing by videoconference. If the
judge based his decision on the argument that videoconferencing is akin to
physical presence, then it can be argued that parliamentary privilege should
also apply to protect testimony provided by videoconference. If, on the other
hand, the judge based his conclusion on paragraph 537(1)(j) of the Criminal
Code, then it is arguable that the use of videconferencing should be
reserved for certain kinds of evidence only.
Several Canadian boards and
administrative tribunals (quasi-judicial bodies) also routinely use various
forms of communications technology for the gathering of sworn viva voce
testimony.35 For example, the Immigration and Refuge Appeal Board
often uses a much less effective audio link for receiving evidence in other
centres across the country.36
In R. v. Nikolovski,37
the Supreme Court of Canada ruled that a video camera accurately recorded all
it perceived and, therefore, its content could be regarded as clear and
convincing evidence.38 This recognition of the accuracy of video
media ensures the future growth of the use of videoconferencing in the Canadian
Videoconferencing in court
proceedings is also occurring more and more frequently in other jurisdictions.
Several Australian states have recently legislated the use of the live video
link for the transmission of viva voce evidence.39 Australian
courts desiring to increase participation from aboriginal people have found
that videoconferencing is an alternative and increasingly available option for
overcoming problems in relation to the giving of evidence where distance is a
In 1988, the United Kingdom legislated
the use of videoconferencing in the courtroom when the testimony of witnesses
outside the country is required.41
Finally, most United States
jurisdictions have made some provision for the use of videconferencing in the
legal system. California law provides that any individual who has the
right to attend a court proceeding in person also has the right to attend that
proceeding by videoconference. This includes prosecutors and victims. In
Hawaii, the legislature has declared that videoconferenced testimony satisfies
all requirements for giving evidence and that it must be treated in all
respects as though the victim or witness were located in the State. In
other words, a victim participating by videoconference would be entitled to all
the rights and would be subject to all the duties of a victim testifying in the
State of Hawaii.
Even federally, the rules of
evidence specifically provide that depositions may be taken by electronic “and
other” means. Currently 18 district courts use videoconferencing in
prison-related proceedings, such as pretrial hearings, witness testimony and
The main reservation with the
use of videoconferencing in the United States has been the fear that physical
presence in the courtroom reinforces the solemnity of the accusation and the
trial and this, in turn, makes witnesses more likely to tell the truth. Because
of this concern, the technique has been used most prevalently in non-trial
procedures and for hearing motions by counsel. As well, experts are
increasingly permitted to give their testimony by videoconference since it is
viewed as independent and non-accusatory.
The use of videoconferencing as
a means of conducting committee proceedings raises a number of challenging
questions related to parliamentary privilege. This is not surprising given that
the technology is relatively novel in Canada and has been used sparingly to
date. In the parliamentary context, it is only now being considered a viable
alternative to requiring members of a committee to be physically present or to
having witnesses flown in from abroad or requiring a committee to travel
outside Canada — all of which can be cumbersome and far more costly than
Based on our analysis, members
and witnesses who appear before a committee sitting in Canada by way of
videoconference from another province are entitled to full protection. If the
committee is sitting outside Canada and the member or witness appears by
videoconference from outside Canada as well, they are not entitled to any
protection in Canada or in the foreign country. Existing practices support
these conclusions. If, on the other hand, the committee is sitting in Canada
but the member or witness appears by videoconference from abroad, the answer is
not as clear. There are arguments in favour of both sides. On the whole,
however, the arguments in favour of providing full protection here in Canada
far outweigh those against doing so.
With respect to quorum and
voting, videoconferencing does not override the traditional requirement of
physical presence. Members appearing by videoconference can be considered in
attendance but they can not be counted for the purposes of quorum nor are they
entitled to move motions or vote.
Ultimately, the issues videoconferencing
raises will become increasingly important in the future as more demands are
placed on legislatures to find ways to cut costs without sacrificing efficiency
or effectiveness. Videoconferencing is certainly one way to do this – it will
no doubt be a way of the future.
Maingot, Q.C., Parliamentary Privilege in Canada, 2 ed. (Montreal:
McGill-Queen’s University, 1997) at 306.
2. 1 Will. & Mar. (2nd Sess.), c. 2, s. 1 (U.K.) [1689 according
to the present calendar]. It should be noted that the Bill of Rights 1689
is also referred to as the Bill of Rights 1688 in various publications.
3. See Maingot, supra at 77.
4. Roman Corp. Ltd. v. Hudson’s Bay Oil & Gas Co. (1971), 23 D.L.R.
(3d) 292 at 299.
5. Bourinot, Parliamentary Procedure and Practice, 4th ed.
(Montreal: Dawson Brothers, 1916) at 74, referring to a resolution of the
British House of Commons of May 26, 1818.
6. R. v. Murphy (1985), 64 A.L.R. 498.
7. Maingot, supra, note 1 at 100.
8. Katherine Dunkley and Bruce Carson, Parliamentary Committees: The
Protection of Witnesses, the Role of Counsel and the Rules of Evidence
(Ottawa: Library of Parliament, Research Branch, 1986) at 8.
9. Other jurisdictions may offer some guidance. For example, the United States
statutory law granting immunity for certain testimony, 18 U.S.C. §§ 6002 and
6005, offers protection for testimony “before or ancillary to” either House or
committee thereof. This express language seems to obviate the argument over
whether videoconferenced testimony is “before” the body; “ancillary to” would
seem to encompass the technology quite nicely, as it has been stretched to
include depositions taken outside committee by government officials. In the
United Kingdom, the phrase “proceeding in Parliament” has also been interpreted
in its wider sense. The expression has been used to include matters connected
with, or auxiliary to, the formal transaction of business. Halsbury’s Laws
of England, 4th ed. , vol. 34 (London: United Kingdom
Butterworths, 1997) provides at 598: “Freedom of speech and debates or
proceedings in Parliament is of the highest constitutional importance and
should not be narrowly construed.” This is persuasive authority for allowing
privilege for videoconferenced testimony.
10. See Maingot, supra, note 1 at 103-104.
11. See Maingot, supra, note 1 at 37-38.
12. Note, however, that when a committee is meeting for the sole purpose of
hearing witnesses, the requirement for quorum is reduced or effectively waived
but the protection of privilege still exists because the meeting remains a
13. Maingot, supra, note 1 at 38.
14. J.-G. Castel, Canadian Conflict of Laws, 4th ed.
(Toronto: Butterworth Canada Ltd., 1997) at 4.
15. Maingot, supra, note 1 at 38; also see Re Ouellet (No. 1) (1976),
67 D.L.R. (3d) 73 at 74, in which Hugessen A.C.J. stated in obiter that
“proceedings in Parliament” in Article 9 of the Bill of Rights, 1689
clearly cover committee proceedings wherever they sit, provided the committee
is sitting somewhere in Canada.
16. Maingot, supra, note 1 at 98.
17. Re Ouellet (No. 1) (1976), 67 D.L.R. (3d) 73, aff’d 72 D.L.R. (3d)
95 (Québec C.A.).
18. It is worth noting, however, that “law-making” is not the only purpose of a
parliamentary assembly. Its functions also include investigating,
deliberating and representing.
19. Ontario Law Reform Commission, Report on Witnesses Before Legislative
Committees (Ministry of the Attorney General, 1981) at 112.
20. Dunkley and Carson, supra, note 8 at 25-26.
21. Ibid. at 28-29.
22. Ibid. at 29-30.
23. Documents presented to members of Parliament that are relevant to a
committee proceeding are protected if they remain part of the internal
proceedings. Maingot, supra, note 1, writes at page 104 that any printed
matter connected to a “proceeding in Parliament” is protected when it is
distributed by the House as part of its internal administration. If the
documents are related to a proceeding in Parliament, they are privileged
regardless of the location in which they were prepared. Whether the document is
used as part of a “proceeding in Parliament” is the key element in determining
whether the material is protected. Moreover, when either House orders the
publication of any “report, paper, notes and proceedings”, the publisher is
absolutely privileged because of sections 7 to 9 of the Parliament of Canada
Act, R.S.C. 1985, c. P.-1. These correspond with sections 1, 2 and 3 of the
English Parliamentary Papers Act, 1840, 3 & 4 Victoria, c.9 (U.K.).
In Canada, a court is required immediately to stay any civil or criminal
proceedings related to the publication of the document and to deem the process
finally determined, by virtue of these provisions. The documents, however, will
only receive protection if they are published “by order or under the authority
of the House of Commons or the Senate” (Maingot, supra, note 1 at 74).
If they are published without an order or outside the authority of either
House, they are not protected. What is important here is that there is, again,
no qualification that published documents must be prepared in Canada in order
for parliamentary privilege to attach within Canada. The treatment of documents
prepared for parliamentary committees is similar to that given with respect to
documents submitted to lawyers. Those prepared for the purpose of legal
representation are privileged, regardless of the location in which they were
prepared (See Anthony F. Sheppard, Evidence, Revised Edition, (British
Columbia: Thomson Canada Limited, 1996) at 1026-39). In court proceedings, there
is an emphasis on the purpose of the document rather than the circumstances of
its creation. This supports the conclusion that oral testimony provided by
videoconference from abroad should also be protected.
24. See Dunkley and Carson, supra, note 8 at 9.
25. R.S.C. (1985), c. C-46.
26. Peter Hogg, Constitutional Law of Canada, 3rd ed.
(Toronto: Thomson Canada Limited, 1992) at 51-4.
27. Dunkley and Carson, supra, note 8 at 6. It should be noted, however,
that witnesses may appeal to the committee and provide reasons why they should
be permitted to refrain from answering any specific question. It would, of
course, be left to the committee to decide whether to grant the request.
28. One American court summed up the rule of comity as follows: “[T]he well-accepted
rule [is] that while no law has of its own force any effect outside the
territory of the state or nation from which its authority is derived, foreign
laws may, within certain limits, be given effect. Comity, however, will not be
extended to foreign law if it is contrary to the policy of the forum.”: In
re Ampicillin Antitrust Litigation (81 F.R.D. 377 (DDC 1978) at 391). For
example, the United States has refused to recognize a foreign country’s patent
agent privilege, arguing that patent regulation is an essential policy of the
U.S. forum. Under comity analysis, foreign countries could compel their
citizens to answer a Canadian committee’s questions over the witness’
objections, but such coercion would be voluntary and unlikely.
29. See for example Freeswick v. Forbes , O.J. No. 1466, Court
File No. 4749/90; Gary Botting & Hugh Trenchard, “Witness Evidence via Live
Video Link in the Canadian Criminal Courtroom”, (July 1997) 55 The Advocate 523,
30. See subsections 486(2.1), (2.11) and (2.2) of the Criminal Code
31. See Notice to the Profession, October 1991, Rules of the Supreme Court of
Canada; Botting & Trenchard, supra, note 29 at 524.
32. O.C.A. Practice Direction, December 18, 1995.
33. Monique Conrod, “Lawyers Learn Advantages of Videoconferencing” The
Lawyers Weekly (12 September 1997) at 2.
34. Justice Kenneth Matthews et al. ”, The Expert: A Practitioner’s
Guide, vol. 2 (Scarborough, Ont: Carswell, 1995) c. 17 at 28.
35. Viva voce testimony means “with the living voice, by word of mouth.”
With respect to the examination of witnesses, this phrase is equivalent to
“orally”. It is used in contradistinction to evidence by way of affidavit
or deposition. As descriptive of a species of voting, it signifies by speech or
by voice, as distinguished from voting by written or printed ballot.
36. Botting & Trenchard, supra, note 29 at 525.
37. December 12, 1996, (24360) S.C.C.  S.C.J. No. 122.
38. Botting & Trenchard, supra, note 29 at 525.
39. Evidence (Closed Circuit Television) Act, 1992 (ACT); Evidence
(Closed Circuit Television) Amendment Act, 1994 (ACT); Evidence Act,
1929 (S.A.) s. 13(2).
40. Terry Marritjngu Munugurr v. R., No. CA18 of 1993, Ct. Crim. App.,
N. Terr. Aus. (1994).
41. Criminal Justice Act, 1988, c. 33, s. 32.