A year after the attack on the Capital Building in Washington D.C. on January 6, 2021, Canada saw a two weeks-long trucker’s blockade of Wellington Street in Ottawa, a street that runs along the southern boundary of Parliament Hill. These incidents once again focused the attention of parliamentarians on issues of security and potential threats from outside the buildings in which they conduct their business. Questions of security were no longer limited to protecting members within the capital building, or the Parliament Buildings, they focused on whether and how to create a buffer zone around the buildings.
In December 2022, the Canadian House of Commons’ Standing Committee on Procedure and House Affairs tabled a report entitled “Protecting the Parliamentary Precinct: Responding to Evolving Risks.” The two key recommendations are:
That the government and its partners continue their current consultations and discussions with relevant stakeholders regarding the potential expansion of Parliament Hill onto Wellington and Sparks streets, along with the potential redevelopment of these streets…
That the federal jurisdiction for the operational security of Parliament Hill be expanded to include sections of Wellington and Sparks streets and, if necessary, that a transfer of land take place between the City of Ottawa and Public Services and Procurement to allow for Wellington Street and Sparks Street to become part of Parliament Hill
The effect of implementing these two recommendations would be to expand Parliament Hill, which now only encompasses the Parliament Buildings and lawns surrounding them, expanding to include two or three streets, as well as government offices including that of the Prime Minister and Privy Council and various businesses and residences. Also, the primary entity for providing security, but not necessarily policing, would be the Parliamentary Protective Services, which is under the joint responsibility of the Speakers of the House of Commons and Senate.
The report, the supporting evidence, and the recommendations unfortunately lack the necessary clarity and understanding of parliamentary versus government responsibility to provide a clear roadmap. Or worse, it provides a roadmap to unintended legal and constitutional problems which any plan for security must avoid.
The fundamental failing of the report and its conclusions are evident from the beginning. In the opening section the committee effectively dismisses any distinction between the “parliamentary precinct” and “Parliament Hill” as either one of legal definition or mere terminology. At page 8 of the report the committee writes:
It may be worth noting that the term parliamentary precinct, in these above definitions, refers to the interior of the physical envelope of a given building occupied by Parliament for its corporate purposes. Meanwhile, the physical area surrounding the parliamentary precincts (i.e., roads, sidewalks, etc.) is not, at present, considered part of the precinct. To that end, the grounds of Parliament Hill have not been considered part of the parliamentary precinct.13
Despite legal or historical definitions, many people, including some witnesses who appeared before the Committee, colloquially refer to the whole of Parliament Hill and its surroundings as the “parliamentary precinct.”
Throughout the remainder of the report, the committee essentially makes no distinction between the use of the terms, nor does it make any effort to ensure that witnesses understand the significance of the distinction when discussing or making recommendations with respect to policing, governance, accountability, and the constitutional separation of powers.
At no point, other than in the physical definition outlined above, does the committee make any effort to understand or identify the significance of the concept of the “parliamentary precinct.”
There are constitutional consequences to the parliamentary precinct being “parliamentary”. It is not merely a collection of buildings or spaces where parliament conducts its business. It is a space over which the constituent parts of parliament, the two Houses, have exclusive jurisdiction. As a result, all decisions relating to the premises and their use are protected by parliamentary privilege. Anyone within the parliamentary precincts comes under the authority of the Houses, and their Speakers. Decisions relating to the use and configuration of the space, the presence of “strangers”, , and all matters of security are made by the Houses (or their officers such as the Speaker, Clerk, or Sergeant-at-arms) and are an exercise of privilege. Any expansion of the precincts would puts all persons and premises within the new boundaries inside the scope of such exclusive jurisdiction. With such jurisdiction, the Houses and their members would become responsible for all decisions relating to the occupation and use of the space.
In the area of security, which was the main concern of the committee, the relationship to privilege and the jurisdiction of the Houses rests on the ability to exclude strangers, including agents of the state, particularly the police. Decisions relating to security such as physical removal and barriers to access are exercises of privilege that are not reviewable in the courts, nor are they actionable by way of tort claims relating to the use of force or defamation. Significantly, as exercises of constitutionally entrenched privilege, the Charter does not apply so as to create any action or constraint on the exercise of the decision-making responsibility.
Parliamentary precincts and parliamentary privileges relating to use of space and exclusion of strangers are inextricably entwined. They are effectively synonymous. Space seen as precincts provides exclusive jurisdiction to the Houses to administer and protect. Equally, the extent of the Houses’ privilege which is necessary for the business and functions of the House and its members defines the precincts. Regardless of which analysis is followed, there is a line where the scope of precincts and the attendant privileges must align.
Given the fact that privilege grants and protects specific jurisdiction beyond the reach of government (including policing) and the courts, and given the potential effects on “strangers” and rights they enjoy outside of the precincts, courts have limited the scope of precincts to what is necessary for parliamentary functions. Outside that space is the point where the jurisdiction of the courts, police and individual rights are properly engaged.
Historically, the boundary between the two has been the “walls” of Parliament. In the UK this is the envelop of the Palace of Westminster, and in Canada that of the Parliament Buildings. More recently the courts have recognized precincts to include buildings, or parts of buildings, that house parliamentary offices and other parliamentary spaces. But in all cases the concept of precinct has had a definition that only reaches to spaces where parliamentarians carry out their functions and over which it is necessary for the Houses or Speakers (on behalf of the House) to have exclusive jurisdiction and exercise privilege. In some cases, the courts have also recognized a relatively small buffer zone around buildings where privileges might be exercisable when there is a physical threat to the buildings (attacks on the outside walls that threaten the buildings or to gain access) or where space needs to be created to allow members and those having business with parliament to access the precincts. Sometimes these “outside” actions are carried out by security services of the House “pushing out” the buildings’ perimeter, or by outside police being engaged by the House to protect its precincts and its privileges, including ensuring that members and those attending parliament to have unimpeded access.
In all cases, the identification of precincts and related privileges are limited and focussed on Parliament itself. Relevant questions of security are only those which relate to the security of parliament and parliamentary institutions. Any engagement with the public has been as strangers to parliament and any “threat” they might pose to parliament and its proceedings. Again, this is related to the extent of privilege.
Jurisdiction for security within the precincts has always rested with the Houses themselves and not the executive or the police. As early as 1415, Parliament was concerned with how to protect itself. As a result, the king provided one of his Sergeants-at-arms as a gift to the House of Commons to provide protection, in the name of the king, but under the sole direction and authority of the House of Commons. There then developed an internal security apparatus under the Sergeant-at-arms to protect the precincts. Since the Sergeant-at -arms was under the direction and authority of the House his actions were fully protected by parliamentary privilege. The same arrangement was constitutionally entrenched in Canada through the preamble to the Constitution Act, 1867.
The authority of the Sergeant-at-arms ended at the edge of the precincts, where it met the authority of the Crown and the police who were responsible for public, not parliamentary, peace and order. In Canada, the dividing line had historically been the walls of the parliament buildings. The result was that House security personnel, under the Sergeant-at-arms, was responsible for security within the buildings and the police were responsible for security and policing elsewhere on Parliament Hill and beyond.
In 2014 a gunman entered the Parliament Buildings after having killed a ceremonial guard at the National War Memorial a few blocks away. He was eventually shot by the Sergeant-at-arms. Following this incident there was a call for reform of security on Parliament Hill and within the precinct. The result was the creation of the Parliamentary Protective Service (“PPS”) that was given responsibility for providing “operational security” within the precincts and on Parliament Hill, while the police retained jurisdiction for policing on Parliament Hill. This arrangement was carefully constructed to respect the distinction between the parliamentary precincts and an area outside of the precincts. The PPS was established under the Parliament of Canada Act, a constitutional statute that organizes matters under the authority of either House, either Speaker, or jointly. The Speakers “as the custodians of the powers, privileges, rights and immunities of their respective Houses…[are] responsible for the Service.” Protocols were established between the Minister of Public Safety and Emergency Preparedness and the Speakers to ensure that the privileges of the Houses were guaranteed, and any involvement of the police in the provision of security would be “in accordance with the arrangement.” The Act further affirmed that the creation of the PPS did not “limit in any way the powers, privileges, rights and immunities” of the Houses. In short, a security service was created within the existing constitutional framework. The police, as police, were excluded from the precinct, except with the permission and on terms agreed with the Speakers (the arrangement), and security personnel could provide physical security, but not policing, in the area outside of the precincts. All of which was under the joint responsibility of the Speakers.
The constitutional paradigm that rests on the concept of “parliamentary precincts” and the related privileges therefore currently remains intact. Since parliamentary security now encompasses the grounds which surround the main Parliament Buildings in order to ensure that buildings off Parliament Hill were still covered by parliamentary privilege, a working definition of “parliamentary precincts” was necessary. Since the police were now going to play a role in physical security it was also necessary for the Act to have a definition which provided for the delineation between public and parliamentary jurisdiction. While the definition of “parliamentary precinct” might on its face appear to be a physical description, it is actually one that maps onto the constitutional functions carried out within the space, which functions are those protected by parliamentary privilege. The key concept in the definition is the word “used” by the two Houses, the Library, committees, various officers of the Houses, and members who are carrying out their parliamentary functions. These are all entities that fall within the exclusive jurisdiction of the Houses and Speakers, and are integral to the two Houses carrying out their parliamentary functions.
What was significant, with the creation of the PPS, was the expansion of the role of the combined security personnel of the two Houses which had previously been limited to providing security within the precincts, as an incident of parliamentary privilege. Security personnel were now being used to provide physical security (but not policing) on the grounds surrounding the Parliament Buildings.
By the terms of the Act, and the arrangement, the Speakers as guardians of the rights and privileges of the House took on responsibility for the security of not only the precincts but Parliament Hill. This has both constitutional and practical consequences for the Speakers, and as a result for each House and its members. While it is often thought that Speakers are individuals who have particular authority to manage the affairs of their House and to act independently in that capacity to carry out their functions, this is not the case. Speakers are the embodiment of their House. They are the spokesperson of their House to the outside world, however they do not have any capacity that is independent of the House itself. As Speaker Lenthall famously stated in 1642, “I have neither eyes to see nor tongue to speak in this place but as this house is pleased to direct me whose servant I am here.” This sentiment is carried into the provisions of the Parliament of Canada Act that create the PPS. The Speakers are responsible for the Service “as the custodians of the powers, privileges, rights and immunities of their respective Houses and of the members of those Houses.” In short, members are, through their Speaker, responsible for the provision of security within the precincts and on Parliament Hill.
The expansion of the provision of “operational security” to Parliament Hill expanded the responsibility of members as well. Any expansion of “Parliament Hill” would make the Houses and their members responsible for the security within the “new” expanded parliament hill. It is one thing to continue members’ responsibility for security within the precincts as an incident of privilege, and possibly to cover a buffer of lawn surrounding the main parliament buildings, it is quite another for members to take on the responsibility and jurisdiction for the provision of security for up to three main roadways, government offices including the Prime Minister’s Office and the Office of the Privy Council, private offices, retail spaces, a pedestrian mall, and private residences.
Expanding the parliamentary precinct, as that concept has been contemplated and recognized, or expanding the physical definition of Parliament Hill and thereby expanding the role of the PPS into “private” space, would necessarily bring both legal and governance challenges.
From a consitutional perspective, there is a question of how far the parliamentary precinct can be expanded. The connection of parliamentary precinct to parliamentary privilege suggests that parliamentary precincts can only be extended to the point that is necessary to ensure consitutional protection and independence of the two Houses and their members. Beyond that point, the consitutional jurisdiction for the Houses and Speaker is suspect. Section 18 of the Constitution Act, 1867 provides that privileges in Canada cannot be expanded beyond those of the UK House of Commons in 1867. Any claimed new privilege must meet the definition of necessity as that term is defined in Supreme Court of Canada jurisprudence Therefore, any attempt to extend the precincts beyond the working definition in section 79.51 of the Parliament of Canada Act would be constitutionally suspect.
Before examining the significant question of expanded “operational security” in civic areas where the public goes about its daily business, it is necessary to consider whether it would be proper or constitutionally permissible for a security service under the responsibility and jurisdiction of the Speakers to provide security for government buildings, particularly those that house the Prime Minister’s Office and the Office of the Privy Council. In the same way that the separation of powers and the independence of the Houses of Parliament protects Parliament from intrusions and interference from the Crown, one would have to ask whether the inverse is also an issue. Would the government accept a security apparatus under the direction and jurisdiction of the Houses, both of which include members of the Opposition? Such oversight would involve the PPS and its parliamentary overseers having access to, and information about, buildings in which the majority of matters covered by cabinet and Crown confidences are carried out?
The expansion of the precincts or the expansion of Parliament Hill into public space would involve a greater risk of legal questions arising from engagement with private individuals as they go about their daily business. For example, beyond the existing Parliament Hill, citizens enjoy full protection of Charter and legal rights enforced by the courts without any reference to privilege. In addition, the provision of operational security within areas of daily private activities, including driving and what is now by-law enforcement, becomes a potential jurisdictional puzzle. How is the public to distinguish between what is “operational security” and policing, when the concept of “operational security” is a concept that is not known to the law except as it appears in the parliamentary context outlined in the Parliament of Canada.
Since the PPS must remain under the jurisdiction of the Speakers to protect the independence of Parliament, Members and Senators would necessarily become involved in having to resolve these questions. The two Houses would be implicated in any legal, consitutional and liability questions that could arise from interactions between members of the PPS and members of the public. As the jurisdiction of the PPS expanded the internal governance responsibilities of the Houses and their members would also expand. Prior to 2015 members and Senators only needed to occupy themselves with matters confined within the walls of the Parliament Buildings, and buildings in which the Houses, their administration and members carried out their functions. In carrying out this responsibility they were fully protected by privilege so that the intricacies of the laws of public order did not apply and their decisions were protected from involvement by the courts. What is contemplated by expanding Parliament Hill and the responsibility of the PPS out into what is now the city would require an extensive rethink of governance and risk management.
Given the consitutional reasons for the separation of powers and the independence of Parliament from the executive and the courts, there must always remain a “parliamentary precinct” which is protected by parliamentary privilege and the ability to exclude all strangers. This both a physical and constitutional necessity; a space where the Houses have exclusive jurisdiction free from executive, police, or judicial interference. At the present time, that space is clearly and properly defined to include the Parliament Buildings within Parliament Hill (as defined in various statutes), and other identifiable buildings within the City of Ottawa. Regardless of any contemplated expansion of “Parliament Hill” this would remain unchanged. Those spaces that are at present identified as “parliamentary precinct” would remain so — the same jurisdictional islands within a potentially larger federal sea. That designation and resulting jurisdiction would still apply to any buildings or spaces inside or outside of the “new” parliament hill.
There is no doubt that security for Parliament is important and now has a dimension that requires an examination of a buffer space and access to and use of space within “shouting distance” of where Parliament sits. In a democracy it is important that people be able to gather to support, criticize and protest, while ensuring that the work of Parliament and those participating in its proceedings and work are not impeded or interfered with. There is little doubt that the responsibility for securing “parliamentary space”, including the precincts and a small buffer zone, are the responsibility of the parliamentarians, and that public authorities are responsible for “public space” outside of the parliamentary precincts. It is doubtful whether Parliament or its Speakers have the constitutional or legal capacity to be responsible for securing public space beyond that occupied and used by parliamentarians and invitees for parliamentary purposes. Securing the public and policing the public peace is the responsibility of the Crown and its agents (police and by-law enforcement). Even if it is within the jurisdiction of the Houses to expand their responsibility beyond the precincts and the existing Parliament Hill any expansion would be onerous and fraught with numerous legal and practical matters. Both Houses, and their members, would now need to ensure proper management of the area in question, even if limited to “operational security,” which would include government offices, retail spaces, and public but non-parliamentary daily activities.
What is required is not expanded jurisdiction for the two Houses but a better understanding of the policing and security challenges that the presence of a Parliament within a city entails. This means better understanding by the police of needs of Parliament, including protection from spillover from events within public spaces and protected access of members, staff and those doing business with Parliament. This might entail a recognized “federal zone” which would include all vulnerable federal sites, including Parliament Hill and related parliamentary offices, the Supreme and Federal Courts, and central government offices including the Prime Minister’s Office, the Privy Council Office and the Treasury Board. This could then come under a single co-ordinating police, not parliamentary, responsibility. Within this zone would sit the recognized parliamentary precincts that would still be protected by parliamentary privilege. This would be consistent with the constitution which leaves, but limits, parliament to being responsible for those things that are uniquely parliamentary, and gives to police the responsibility for those things which are public.