Parliamentary Privilege, the Canadian Constitution and the Courts

573

BY WARREN J. NEWMAN*

The privileges and immunities of the Houses of Les privilbges et immunit~s parlementaires font Parliament are part of the law of the partie du droit constitutionnel. Les tribunaux Constitution. Courts have struggled with the judiciaires ont tente de preciser et de mieux role and place of these privileges in the constitu- encadrer le r6le que joue Ie privilbge parlemen- tional system, notably with respect to their rela- taire au sein du systbme constitutionnel, notam- tionship to other parts of the Constitution, ment en ce qui concerne le lien avec d'autres including the provisions of the Canadan Carterof 616ments de la Constitution, y compris les dispo- Rightsand Fnvkm.This paper explores that rela- sitions de la larte canadonne des dnits e Iit//t. tionship and clarifies the status of parliamentary Dans cet essai, nous examinerons ces rapports et 2008 CanLIIDocs 118 privilege under the Constitution, having regard nous jetterons on 6clairage nouveau sur le statut to the constitutional text, the principles underly- du privilbge parlementaire au regard de la ing or informing the interpretation of the consti- Constitution, en tenant compte du texte de tutional provisions, including the principle of the celle-ci, les principes sous-jacents qui appuient separation of powers, and the leading cases- l'interpr~tation du texte, dont la doctrine de la notably the decisions of the Supreme Court in s~paration des pouvoirs-ainsi que les arrfts New Brunstick Broadcastingand Vaid. The parlia- principaux, dont les decisions de la Cour mentary privilege is a necessary adjunct to the supreme dans les affaires New Brunsuidc legislative and deliberative functions of the hous- Bruadcasinget Vaid. En guise de conclusion, nous es, and to the maintenance of the dignity and soulignons que le privilCge parlementaire n'est efficiency of those bodies. The paper concludes pas--et ne devrait pas ftre-une fin en soi, et that parliamentary privilege is not, nor should it que les tribunaux devraient adopter cette per- be, a substantive end in itself, and that the courts spective en examinant toute contestation d'un would do well to maintain that attitude in scruti- pr~tendu privilege lorsque l'existence, la portte nizing contested claims of privilege where the ou la ncessit6 de celui-ci est en cause, et existence, scope or necessity of the asserted cat- lorsqu'il y a des principes, droits et int~rkts con- egory of privilege is at issue, and where there are stitutionnels qui sont en concurrence. competing constitutional principles, rights and interests in the balance.

Dip. C.S., B.A., B.C. L., LL.B. (McGill), LL.M. (Osgoode); of the Bars of Quebec and Ontario; Senior General Counsel, Constitutional and Administrative Law Section, Department of Justice of Canada. The reflections in this paper are meant to stimulate debate and do not necessarily represent the views of the Department or the Government of Canada. This paper is dedicated to my former colleague Henry L. Molot, Q.C., with whom I had the signal privilege and pleasure of working for more than twenty years. 574 OTTAWA LAW REVIEW REVUE DE DROIT O'OTTAWA 39:3 39:3

Table of Contents

575 1. INTRODUCTION 576 II. PROLOGUE: THE PRINTER, THE LORD MAYOR, THE SPEAKER AND THE CHIEF JUSTICE: BRASs OmBY's CASE 579 II1. THE CONSTITUTIONAL BASIS FOR PARLIAMENTARY PRIVILEGETODAY IN CANADA 581 IV NEWBRUNSvGCx BRO4DCASMNG AND THE STATUS OF INHEREN PRIVILEGES 592 V. CONCLUSIONS WITH RESPECT TO NEWBRLUvS1CK BRO4DCANG 593 VI. H4RvEY. THE JUDICIAL FAULT LINES PERSIST 596 VII. VAir. A UNANIMOUS PERSPECTIVE ON LEGSLATED PRIVILEGES 607 VIII. CONCLUSION: THE PLACE OF PRIVILEGE, THE CONSTITUTION AND THE COURTS CLARIFIED 609 IX. POST SCRIPTUM 2008 CanLIIDocs 118 Parliamentary Privilege, the Canadian Constitution and the Courts

BY WARREN I. NEWMAN

I. INTRODUCTION 2008 CanLIIDocs 118 [Tihe courts will see whether what the House of Commons declares to be its privileges really are so, the mere affirmance by that body that a certain act is a breach of their privileges will not oust the courts from enquiring and deciding whether the privilege claimed really exists.

-Sir William Buell Richards, first Chief Justice of the Supreme Court of Canada, in Landers v. WAxd6rth (1878)'

The privileges and immunities of the Houses of Parliament are an ancient and venerable part of the law of the Constitution, both of the United Kingdom and of Canada. As in the United Kingdom throughout the latter history of Parliament, in recent years, courts in Canada have struggled with the role and place of these privileges in the constitutional system, notably with respect to their relationship to other parts of the Constitution, including the provisions of the Canadan Charter of Rights and Frcadbd. This paper will explore that relationship and will attempt to clarify the status of parliamentary privilege under the Constitution of Canada, having regard to the provisions of the Constitution and the leading Canadian cases of New Brunswick BroadcastingCo. v. Nova Scotia (Speker of the House of Assablyy and Canada (House of Cbnixnis) v. Vaid.

1. Landcsv. W1iwrth (1878), [1879 2 S.C.R. 158 at 196, (1878) S.C.J. No.4 (QL) [Landascited to S.C.R.J. 2. Part I of the Gnx.stmin Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. II I arr]1. 3. [19931 1 S.C.R. 319, 100 D.L.R. (4th) 212 [NewBruas*dcBrodcasngcitedto S.C.R.l. 4. 2005 SCC 30,[20051 1 S.C.R. 667, 252 D.L.R. (4th) 529 [Vaidcited to S.C.R.I. 576 OTTAWA LAW REVIEW REVUE DE DROIT D'OTTAWA 39:3 39:3

II. PROLOGUE: THE PRINTER, THE LORD MAYOR, THE SPEAKER AND THE CHIEF JUSTICE: BRAss CROSBY'S CASE

Brass Crosby was a solicitor and a member of Parliament who, in 1770, was elected to the venerable office of Lord Mayor of the City of London.5 Not long after Crosby's election, the House of Commons issued warrants against the printers of the Mddesex Journal and the Gazettax for reporting the parliamentary debates, but the printers were discharged by Alderman (and later Lord Mayor) John Wilkes. 6 Parliamentary debates had been published in the past under fanciful pseudonyms such as the Px 'ngsof the Lovir Room of the Robin Hood Sodet)y and Samuel Johnson's Deba te of he Samate o(Li liput, but few had dared breach the stricture against verbatim reporting.I In 1771, one Miller, the printer of the Eveiing Post, also published the proceedings of the Commons, including the names of members of Parliament who had spoken in the debates. Sir Fletcher Norton, the Speaker of the House, issued a war-

rant to arrest Miller, who was taken into custody in the City of London. The printer 2008 CanLIIDocs 118 complained to the Lord Mayor, who, as Chief Magistrate, questioned the validity of the general warrant. As it failed to provide details of the offence and other particu- lars, the messenger from the Commons was charged and committed for assault and wrongful arrest. Crosby was summoned to appear before the bar of the House of Commons and was found to have breached the privilege of the House. The Lord Mayor was committed to the Tower of London by virtue of a warrant issued by the Speaker." Our story now shifts to the account in the law reports. 10 By a writ of habeas corpus, the Lieutenant of the Tower of London was commanded to bring Crosby

5. The first recorded holder of the office was Henry Fitz-Ailwyn in 1189. King John officially recognized the right of Londoners to elect their Lord Mayor in the royal charter granted to the City in 1215. The Magna Cma of the same year specified, in clause 13,that "Ithe city of London shall enjoy all its ancient liberties and free customs."The office continues to this day. 6. John Wilkes, the colourful radical, was also instrumental in the campaign for the freedom to publish parliamentary debates. 7. See Benjamin Beard Hoover, SamnucdJdscn's PadiamntaryRqxting: Debates in the Sfate cfLiIlliput(Berkley and Los Angeles: University of California Press, 1953). 8. The insistence of the Houses of Parliament against reporting the debates reflected the 17th century struggles with the Crown. It was better that the official record show what was done, rather than what was .aid,in Parliament (and that is still the primary function of the "Journals" of the Senate and House of Commons of Canada) lest the King be able to put names to particular speeches and individual actions. 9. BrasiQssi"s Ce(1771), 3 Wils. 188, 2 Bla. W. 754 (K.B.) [BrassCrod cited toWils.l.The warrant read as follows: "Whereas the House of Commons have this (lay adjudged, that Brass Crosby Esq. Lord Mayor of London, a member of this House, having signed a warrant for the commitment of the messenger of the House, for having executed the warrant of the Speaker, issued under the order of the House, and held the said messenger to bail, is guilty of a breach of privilege of the House; and whereas the said House hath this day ordered, that the said Brass Crosby... be for his said offence committed to the Tower of London: these are therefore to require you to receive into your custody the body of the said Brass Crosby, Esq. and him safely keep during the pleasure of the said House, for which this shall be your sufficient warrant. Given under my hand, the twenty-fifth day of March, one thousand seven hundred and seventy-one" at 189. 10. 7he Cse BrassCrtut Eq. LdfMayc-o /odrmn(1771), 19 St.Tr. 1137, 95 E.R. 1005 (K.B.). PARLIAMENTARY PRIVILEGE, 577 THE CANADIAN CONSTITUTION AND THE COURTS

before the Court of Common Pleas. On April 22, 1771, Crosby was brought to the bar of the Court. Serjeant Glynn (assisted by Serjeant Jephson) appeared on behalf of the Lord Mayor, and argued that as a breach of privilege of the House of Commons had been alleged, it was the duty of the courts to determine whether the fact charged was by law a contempt or breach of privilege. The Court, he contended, must inquire into whether the House of Commons had exceeded its lawful jurisdiction. "[lt would totally destroy all the benefit, and the very end of the habeas corpus," pleaded Serjeant Glynn, "if the transcendency of any power whatever could blind the eyes of a Court of Justice, and prevent their inquiry into its acts; such a decision by Judges sworn to administer faithfully the laws, would," he declared, "be fatal to every thing that is worth preserving in our boasted constitution."11 He added that if the lex and axnsuctudo pIarlm d--the law and custom of Parliament---"of which we hear so much and know so little," was indeed a part of the law of the land, then the judges were "bound to take notice of it, and to decide upon it, as they do upon every other

part of the law."I'The privileges of the House of Commons were not "so transcendent 2008 CanLIIDocs 118 3 and mystical, as to exclude all inquiry." The Court of Common Pleas rejected the prayer that the Lord Mayor be discharged from the custody of the Lieutenant of the Tower of London. Chief Justice de Grey wrote that the House of Commons had the undoubted power of committing persons for breaches of privilege: "This power of committing must be inherent in the House of Commons, from the very nature of its institution," and was thus "part of the law of the land." 4 Chief Justice De Grey added plaintively that the Lord Mayor had been "committed by the law of Parliament, and yet he would have redress from the common law;" 5

[Tlhe law of Parliament is only known to Parliament-men, by experience in the House. Lord Coke says, Every man looks for it, but few can find it .... [Wie cannot judge of the laws and privileges of the House, because we have no knowledge of those laws and privileges; we cannot judge of the contempts thereof, we cannot judge of the punishment therefore. I wish we had some code of the law of Parliament; but till we have such a code, it is impossible we should be able to judge of it. 16

Justice Gould, concurring in the opinion of the Chief Justice that the Court had no cognizance of contempt or breach of privilege of the House of Commons,

I1. BaGss & , supra note 9 at 192 (The argument is set out in emnso in the headnote to the decision.). 12. Ibid. 13. Ibid. at 193. 14. I/id. at 198-99. 15. Ibid. at 200. 16. Iid. at 200-01. 578 OTTAWA LAW REVIEW REVUE DE DROIT D'OTTAWA 39:3 39:3

stated that the ]ex and consuctudo parlerrrnti "is known to Parliament-men only" and they were the sole judges of their own privileges. 17Justice Blackstone affirmed that "[tihe House of Commons is a Supreme Court" and the only judge of its own proceedings.1 Justice Nares, whilst ever entertaining "a most anxious concern for whatever regards the liberty of the subject," concurred in the views of the Lord Chief Justice and his brethren. " The case report ended with the ominous mention: "The lord-mayor was remanded to the Tower." Happily, however, that was not the end of Brass Crosby, nor indeed, the lega- cy of his case. 2°The opinion of Chief Justice de Grey was repudiated some sixty years later in the leading case of Stockdale v. Hansart&. Lord Chief Justice Denman of the Court of Queen's Bench emphasized that nothing could have been "less needful or less judicial than the wide assertion of privilege that was volunteered by the Chief Justice" in Brass Cruiy's Case.22 As to the argument that the courts of law must abstain from interfering in matters in which a claim of privilege has been invoked, on the

ground that they have no means of informing themselves as to what those privileges 2008 CanLIIDocs 118 are, Lord Denman observed that the argument was circular: "The courts cannot be entrusted with any matter connected with privilege; because they know nothing about privilege; and this ignorance must be perpetual, because the law has taken such matters out of their cognisance." This had "thrown a kind of mystery over the subject," which had "kept aloof the application of reason and common sense." "4 Subsequent judges had "denied this presumption of ignorance, and asserted the right and duty of the courts to know the law of parliament, because [of] the law of the land on which they are bound to decide."'

17. Ibid.at 204. 18. Ibid. 19. Ibid. at 205. 20. On May 8, 1771, the parliamentary session ended and the Lord Mayor was released from theTower, to pop- ular acclaim. The House of Commons never again asserted its privilege against the publication of the debates, which was taken up by William Cobbett, and later, by Thomas Curson Hansard. 21. (1839) 9Ad.&E. 1, l12 E.R 112(K.B.)[Sto&AlecitedtoAd.& E.. 22. Ibid.at 119. 23. Ibid.at 113. 24. Ibid. 25. Ibid.(Justice Littledale, in a concurring opinion, added that "it is further said that the courts of law have no knowledge or means of knowledge as to the lex et consuetudo parlementi, and cannot therefore determine any question respecting it. And yet, at the same time, it is said that the lex et consuetudo parlementi are part of the law of the land. And this Court is, in this very case, actually called upon by the defendants to pronounce judgment in their favour, upon the very ground that their act is justified by that very lex et consuetudo parlementi, of which the Court is said to be invincibly ignorant . . . ." at 194.) PARLIAMENTARY PRIVILEGE, 579 THE CANADIAN CONSTITUTION AND THE COURTS

III. THE CONSTITUTIONAL BASIS FOR PARLIAMENTARY PRIVILEGE TODAY IN CANADA

The 23rd edition of Erskine May's authoritative Treatise an the Law, Pritileges, PRc-xdings and Usiage of Pariiamcntstates that

[ajfter some three and a half centuries, the boundary between the competence of the law courts and the jurisdiction of either House in matters of privilege is still not entirely determined. There is a wide field 6f agreement on the nature and principles of privilege, but the questions of jurisdiction which occasioned furious conflict in the past-usually between the Commons and the courts, but at times between the two Houses-are not 2 wholly resolved. 6

So too has been the case in Canada. Erskine May's treatise provides this clas- sic definition of parliamentary privilege:

Parliamentary privilege is the sum of the peculiar rights enjoyed by each House collec-

tively as a constituent part of the High Court of Parliament, and by Members of each 2008 CanLIIDocs 118 House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. Thus privilege, though part of the law of the land, is to a certain extent an exemption from the general law. Certain rights and immunities such as freedom from arrest or freedom of speech belong primarily to individual Members of each House and exist because the House cannot perform its functions without unimpeded use of the services of its Members. Other such rights and immunities such as the power to punish for contempt and the power to regulate its own constitution belong primarily to each House as a collective body, for the protection of its Members and the vindication of its own authority and dignity. Fundamentally, however, it is only as a means to the effective discharge of the collective functions of the House that 2 7 the individual privileges are enjoyed by Members.

Joseph Maingot, former Law Clerk and Parliamentary Counsel to the House of Commons, put the matter thus in the Canadian context:

Parliamentary privilege is the necessary immunity that the law provides for Members of Parliament, and for Members of the legislatures of each of the ten provinces and two territories, in order for these legislators to do their legislative work. It is also the necessary immunity that the law provides for anyone while taking part in a proceeding in Parliament or in a legislature. In addition, it is the right, power, and authority of each House of Parliament and of each legislative assembly to perform their constitutional functions. Finally, it is the authority and power of each House of Parliament and of each legislative assembly to enforce that immunity and to protect its integrity. The legislative body needs this legal protection or immunity to perform its function and to defend and vindicate its authority and dignity. The Members of the legislative body enjoy these rights and immunities because the legislature cannot act or perform 2 without the unimpeded use of the services of its Members. 1

26. SirWilliam McKay, ed., ErsaneNaby's Trwtise (n The Law Pnsileges, Prrxordngsand Uage ofPariammt, 23d ed. (London: LexisNexis, 2004) at 176. 27. Ibid. at 75 [footnotes omittedl. 28. J.P. Joseph Maingot, Pahiamcnta Pnivilege in Canada, 2d ed. (Ottawa: House of Commons; Montreal: 580 OTTAWA LAW REVIEW REVUE DE DROIT D'OTTAWA 39:3 39:3

What, in Canada, is the source of this privilege or immunity? The answer resides partly in the provisions of the Constitution of Canada themselves. Section 18 of the Constitutian Act, 1867 confers a grant of legislative authority upon the Parliament of Canada in respect of the privileges of the two federal houses, the Senate and the House of Commons:

18. The Privileges, Immunities, and Powers to be held, enjoyed, and exercised by the Senate and by the House of Commons and by the Members thereof respectively shall be such as are from Time to Time defined by Act of the Parliament of Canada, but so that the same shall never exceed those at the passing of this Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Garat Britain and Ireland, 2 9 and by the Members thereof.

Parliament has exercised this legislative authority, notably in section 4 et seq of the ParlianmtJ(Canada Act:

4. The Senate and the House of Commons, respectively, and the members thereof hold, enjoy and exercise 2008 CanLIIDocs 118

(a) such and the like privileges, immunities and powers as, at the time of the passing of the Ginstitution Act, 1867, were held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom and by the members thereof, in so far as is consistent with that Act; and (b) such privileges, immunities and powers as are defined by Act of the Parliament of Canada, not exceeding those, at the time of the passing of the Act, held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom and by the members thereof.

5. The privileges, immunities and powers held, enjoyed and exercised in accordance with section 4 are part of the general and public law of Canada and it is not necessary to plead them but they shall, in all courts in Canada, and by and before all judges, be taken notice 30 of judicially.

It is evident that in Canada (as in the United Kingdom), the legislative power of Parliament to define the privileges of the Houses of Parliament includes the power to circumscribe those privileges. There is no provision in the Constitution of Canada that expressly grants to provincial legislatures the authority to determine the privileges and immunities of legislative assemblies, but the courts have held that the power of the legislature to amend the internal constitution of the province, a power now located in section 45 of the Ch tution Act, 1982,3 1 is sufficient to encompass that task. In Fieling v.

McGill-Queen's University Press, 1997) at 12. (With the creation of Nunavut there are now, of course, three territories.) 29. Caisiuton Ar, 1867(U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985,App. 11, No. 5 Gn-.tutin Act, 18671. 30. PririanmtdofCnada Act, R.S.C. 1985, c.P-I, s. 4-5 [Pariarnmtof Canda Al. 31. Being Schedule B to the Canada Acr 1982 (U.K.), 1982, c. 11. PARLIAMENTARY PRIVILEGE, 581 THE CANADIAN CONSTITUTION AND THE COURTS

3 2 Th oIJmS, the Judicial Committee of the Privy Council found that section 92(1) of the Cistitution Act, 1867 (the predecessor provision to section 45 of the Gstitution Act, 1982) conferred the power to enact statutes defining the privileges of the legislative body:

It surely cannot be contended that the independence of the provincial legislatures from outside interference, its protection, and the protection of its members from insult while in the discharge of their duties, are not matters which may be classed as part of the constitution of the province, or that legislation on such matters would not be aptly and prop- 3 erly described as part of the constitutional law of the province. 1

Section 18 of the Constitution Act, 1867 and section 45 of the Cyisttution Act, 1982 are thus the provisions authorizing the enactment, by Parliament and the provincial legislatures, respectively, of what may be termed the "legislated" privileges of the federal legislative houses and the provincial assemblies. 2008 CanLIIDocs 118 IV. NEW BRUNSvwCK BROADCASTING AND THE STATUS OF INHERENT PRIVILEGES

However, in the New Brnisiick Broadcastingcase, the Supreme Court of Canada dis- covered another source of parliamentary privilege: the "inherent" privileges of provincial legislative assemblies, derived from the preamble to the Gnistitution Act, 1867 and its recital to the effect that Canada was to be endowed with "a Constitution similar in Principle to that of the United Kingdom."3 4 That organic constitution had long recognized parliamentary privilege as inherent to the dignity and efficient functioning of the British parliamentary houses. A majority of the Supreme Court ruled that such essential privileges and immunities as were necessary to the proper functioning of provincial legislative assemblies (and presumably, the federal houses as

32. Field'ng v. Thrms, 118961 A.C. 600, 11 C.R.A.C 278 (P.C.) [ieldingcited to A.C.]. (This was another matter involving a skirmish between a mayor and a legislative chamber: Thomas was the Mayor ofTruro, Nova Scotia, and was summoned to attend at the bar of the House of Assembly of the province to answer for a breach of the privileges of the House in having allegedly published a libel concerning the conduct of members of the House. Thomas attended twice and on the second occasion, was ordered to withdraw and remain in attendance whilst the House deliberated. Upon being called back by the serjeant-at-arms by order of the Speaker, he refused to obey and left the precincts of the House. He was arrested and brought before the Bar of the House, where he was found guilty of contempt in the face of the House and was directed to be committed to the common jail of Halifax for 48 hours. He was imprisoned, but (unlike the Lord Mayor of our prologue) was freed shortly thereafter on a writ of haxeas arpus issued by the Supreme Court of Nova Scotia. He then brought suitsuccessfully against the members of the House of Assembly for wrongful arrest and imprisonment. The judicial Committee of the Privy Council reversed the judgment on the basis that the Legislature of Nova Scotia had enacted valid legislation amending the constitution of the province so as to grant members of the provincial legislative assembly the same privileges as the Canadian House of Commons.) 33. I nidtein -11. at 34. Supra note 29, cited in NewvBrurn,.iit Brdcasting,supra note 3 at 322. 582 OTTAWA LAW REVIEW REVUE DE DROIT D'OTTAWA 39:3 39:3

well) were imported into the Constitution of Canada by way of the preamble to the Act of 1867; that these privileges themselves had constitutional status; and that this status was sufficient to put them on an equal footing with other parts of the Constitution, and thereby, in this instance, to oust the application of section 2(b) of the atner's guarantee of freedom of expression insofar as it might otherwise protect the right of television news media to film the proceedings of the Nova Scotia House of Assembly with their own cameras. The lengthy and disparate reasons for judgment presented with the Supreme Court's decision in NewBrunsvck Broadcastingare difficult to parse. The Court sat as a full bench of nine judges, but Stevenson J. took no part in the judgment. 35 The late Chief Justice Antonio Lamer wrote extensive and cogent reasons, but ultimately for himself alone. 6 The judgment of L'Heureux-Dub6, Gonthier, McLachlin and lacobucci JJ. was delivered by McLachlin J. (as she then was).37 Justice La Forest expressed "general agreement" with the reasons of McLachlin J., but added a para-

graph of trenchant observations of his own.s Justice Cory was reported as dissent- 2008 CanLIIDocs 118 ing, but his actual reasons suggest he was dissenting only in part. 39 Justice Sopinka is not reported as dissenting (even in part), and yet his reasons appeared to take issue as much or more as those of Cory J. with the divergent approaches of the Chief Justice and McLachlin J.Y Chief Justice Lamer began with a historical exegesis of the evolution of the doctrine of parliamentary privilege in the United Kingdom, which had emerged out

35. NewBrunsikc Broadcasting,ibid. at 320. (The case was heard on March 2 and 3, 1992, and the judgment of the Court was released on January 21, 1993. Justice Stevenson retired from the Court on June 5, 1992.) 36. Aid. at 332-67. 37. Ibid. at 368-94. 38. Ibid. at 367-68. 39. Iid.at 399-414. (Justice Cory stated at 399 that he respectfully differed from "a part" of the Chief Justice's reasoning and his conclusion. He stated at 404 that he had "now had the opportunity of reading the thorough analyses of the Chief Justice and those of justice McLachlin as well. I agree with McLachlin J. that the legislatures of this country possess such constitutional privileges as are necessary for their operation. I depart from the reasoning of my colleagues in that I believe that the courts may, when properly called upon, enquire as to whether a particular exercise of parliamentary privilege falls within the privileged jurisdiction of the legislature." In the result, he would have found a violation of s. 2(b) of the GCarterwere television cameras excluded entirely from the legislative assembly chamber, but the compromise arrived at in the interim (televised feed with cameras controlled by the assembly, limiting their number and positioning so asnot to be overly intru- sive or disruptive of the proceedings) was, in his view, "eminently fair and suitable" and would be justified under s. I of the harterat 413-14.) 40. Ibid. at 394-99. (Sopinka J. began at 394: "1have had the benefit of reading the reasons of the Chief Justice and Justices Cory and McLachlin, but regrettably, while I agree with much that is said in each of the reasons, I cannot agree with conclusion reached. Both the Chief Justice and McLachlin J. find that the impugned rule or practice of the legislative assembly is immune from scrutiny under the Cnadian CharterJRights or Fretdarw but on different grounds. I find their respective reasons for disagreeing with the ground of immunity selected by the other equally compelling. As a result, I have concluded that no such immunity exists." In the result, Sopinka J. (like Cory J.) would have applied the Charter lens to the scrutiny of parliamentary privilege, but assuming (although not deciding the existence of) a breach of s. 2(b), he found the practical compromise worked out as to the control and placement of the television cameras to be "eminently sensible" and would have justified it under s. I of the Charter,at 396-99.) PARLIAMENTARY PRIVILEGE, 583 THE CANADIAN CONSTITUTION AND THE COURTS

of "a history of conflict" amongst the branches of government comprised of the Crown, the Lords and Commons, and the courts of justice. 41 Over the years, through the acquiescence of the institutional actors involved, the exercise of privilege had tended to become "less confrontational." 42 The English Bill cRights of 1689 declared in its ninth article that "[tihe freedom of speech and debates, or proceedings in parliament, ought not to be impeached or questioned in any court or place out of parliament."43 The courts, he noted, had "conceded some jurisdiction to the Houses through the common law," and the Houses, in turn, "conceded some jurisdiction to the courts," appearing before them to plead the exercise of privilege "and trusting them to dismiss an inappropriate claim on that basis."44 Moreover, he emphasized, in 1704 the House of Commons agreed not to claim any privilege for the future that 45 was not already founded in custom and usage. Privilege thus had its source in the lexparlenxn, the common law and the statute law. The growth of judicial review of claims of privilege-so strikingly absent

in our earlier account of Brass Quiy's Case--was to be fuelled by a series of cases in 2008 CanLIIDocs 118 the 19th century. As Erskine May's treatise on parliamentary practice points out:

The earliest conflicts between Parliament and the courts were about the relationship between the lexpariarrentiand the common law of England. Both Houses argued that under the former, they alone were the judges of the extent and application of their own privileges, not examinable by any court or subject to any appeal. The courts initially pro- fessed judicial ignorance of the lexpaiamrnti, but after a time came to regard it not as a particular law but as part of the law of England, and therefore wholly within their judicial notice. There might be areas of the application of privilege within which it was proper for either House exclusively to make decisions, but particularly-though not solely-where the rights of third parties were concerned, the courts considered that it was for them to form their own view of the law of Parliament and to apply it .... By the middle of the nineteenth century, this aspect of contention over the lexpar- liammid and the common law had largely been resolved. Parliamentary claims to determine both whether a privilege existed and whether it had been breached were abridged; the Houses yielded the first to the courts. Attention turned to the determination of the proper limits of the proceedings of Parliament, distinguishing what was a proper matter for the Houses, and what was not, on which the courts might be expected to rule. A number of important cases laid down guidelines for the relationship between Parliament and the courts .... 46

In Stckdale, Lord Denman C.J. had dismissed the House of Commons' contention that by a resolution of the House it could declare the law of privilege with-

41. Ibid. at 344. 42. Ibid. at 345. 43. English Bill of Rights, 1689, I Wm. & M. sess. 11,c. 2, s. I, sub-s. 9. 44. NewBruns"idz Brzucaaing,mqra note 3 at 345. 45. Ibid. 46. McKay, supra note 26 at 176-77 [footnote omittedj. Amongst the significant decisions of this period, see e.g. Burdett v. Abbt(181 I), 14 East I, 104 E.R. 501 (H.L.); Stczdale supra note 21; Houardv. Cwra(1845), 10 Q.B. 359, 116 E.R. 139 (Q.B.); Badaugh. Gi, 11883-841 12 Q.B.D. 271,32 WR. 552 (Q.B.). 584 OTTAWA LAW REVIEW REVUE DE DROIT D'OTTAWA 39:3 39:3

out further review by the courts. That proposition was, he stated, "wholly untenable, and abhorrent to the first principles of the constitution of England'47 :

The supremacy of parliament, the foundation on which the claim is made to rest, appears to me completely to overturn it,because the House of Commons is not the parliament, but only a co-ordinate and component part of the parliament. That sover- eign power can make and unmake the laws; but the concurrence of the three legislative estates is necessary; the resolution of any one of them cannot alter the law, or place 48 any one beyond its control.

Justice Littledale, in his concurring reasons, wrote that the Court was being told it was bound to take the law from a resolution of one branch of Parliament alone; "that the judgment we are to pronounce is not to be the result of our own deliberate opinion on the matter before us, but that which is dictated to us by a resolution of the House of Commons, into the grounds and validity of which resolution we have no means of enquiring, and are indeed forbidden by parliamentary law to enquire at

all." He added: "I cannot agree to that position."" 2008 CanLIIDocs 118 Chief Justice Lamer, in NewBrunsmic&Broadcasting, aptly paraphrased the finding in Stokdalein these terms:

Lord Denman C.]. found first that the House's contention that its orders could not be questioned was untenable. To find otherwise would be to hold that the House of Commons is supreme when only Parliament is supreme .... A declaration of law must be inquired into to determine if it is indeed a matter of privilege. Otherwise, the House could bring any matter within its jurisdiction simply by declaring it to be so. If, upon examination, the subject matter does fall within the jurisdiction of the House, then the courts cannot question its judgment. If, however, a claim of privilege is not valid, then the courts can decline to enforce it. In that particular case, Lord Denman C.J. embarked on that inquiry and determined that the House's claim that it had the privilege of pub- lishing defamatory material with immunity was not proven.')

This was also essentially the position taken by the Supreme Court of Canada in an early case, Landms v. V14&xtl, 51 wherein Richards C.J. stated:

Even in England, the courts will see whether what the House of Commons declares to be its privileges really are so, the mere affirmance by that body that a certain act is a breach of their privileges will not oust the courts from enquiring and deciding whether the priv- 52 ilege claimed really exists.

47. Stodxdle, ibid. at 108. 48. Iid 49. Iid. at 194-95. ("If I am to pronounce a judgment atall, in this or any other case, it must and shall be the judgment Ji(". otin rind, applying the law of the land as I understand it .... ."at 194-95.) 50. NewBruns'idc Brrudiung,supra note 3 at 349-50. SI. Suptanote I. 52. I/id at 196, cited in NetvBrunsmidcBrrndcasng, supra note 3 at 350. PARLIAMENTARY PRIVILEGE, 585 THE CANADIAN CONSTITUTION AND THE COURTS

The general rule that had developed in the case law, as explained by Lamer C.J.C., is that "courts will inquire into the existence and extent of privilege, but not its exercise.""3 These concepts-e'dstence, etient (or scope) and ewu .se-"tend to overlap 4 , as he readily acknowledged. For example, parliamentary freedom of speech is a recognized and established category of privilege, but courts have occasionally examined the breadth of the privilege by determining whether things said outside the legislative chamber but closely connected with the work of the legislative body should also be exempted from judicial review. However, the Chief Justice asked rhetorically whether that was actually a question of the extent of the privilege of free speech, or whether it was a question of its exercise? 55 Another proposition flowing from the case law was that "courts are apt to look more closely at cases in which claims to privilege have an impact on persons outside the Assembly than at those which involve matters entirely internal to the Assembly.""6 Here too, the distinction was not clearly drawn: the case at bar involved the internal proceedings of the House of Assembly, but would have an impact on persons exter- 2008 CanLIIDocs 118 nal to the Assembly (television news media). Did this qualify, he queried, as an inter- 7 nal or an external case? Various arguments had been put forward that the Charter ought not to apply to the exercise of parliamentary privilege in NcwBinsvick Broadcasting.Chief Justice Lamer demurred from the contention that the continuation of the provincial constitution of Nova Scotia under section 88 of the Ccnsttution Act, 1867 resulted in the entrenchment of that constitution as part of the Constitution of Canada (and thereby, the constitutional entrenchment of the privileges of the House of Assembly): "the continuance of a provincial constitution as contemplated by s. 88 is something quite different from giving it status as part of the Constitution of Canada."58 On the second argument, to the effect that the preamble to the (astution Act, 1867 had incorporated article 9 of the English Bill of Rights of 1689, the Chief Justice did not accept that article 9 was itselfa provision of the Constitution of Canada:

I do not think that the wording of the preamble of the Gnstitution Act, 1867 can be taken to refer to so specific an article of the Constitution of the United Kingdom. While the Constitution of Canada is undoubtedly founded upon many of the same broad principles as is the Constitution of the United Kingdom, the two are far from identical. Article 9 cannot be directly transplanted without specific reference .... Similar in principle does 59 not mean identical in the powers it grants.

53. Nev Bninsick Brdcasng,iid. 54. Ibid. 55. Iid 56. I/icL 57. /icL at 351. 58. Ibid. at 353. (Lamer C.J.C. did not determine the issue definitively in light of his later conclusion that s. 32 of the (harter did not extend the application of the 0Iaitoto the legislative assembly.) 59. Ibid. 586 OTTAWA LAW REVIEW REVUE DE DROIT D'OTTAWA 39:3 39:3

A third argument was more plausible: that parliamentary privileges have constitutional status due to the intrinsic characteristics of legislative bodies, the preamble of the CGmstitutian Act, 1867, and the importance of maintaining the independence of the legislative branch of government:60 "To incorporate by way of the preamble the broad principle of the fostering of the independence of the legislative process through the exercise of parliamentary privileges is much more palatable than incorporating a specific article of the Bill of Rights of 1689."61 Nonetheless, the Chief Justice was doubtful that this argument could be pressed so far as to accord to parliamentary privileges "a constitutional status which 6 2 is on the same footing as the Giarta":

The Garteris a part of an evolution of our Constitution which culminated in the supremacy of a definitive written constitution. Given this, I would be reluctant to import unexpressed concepts into the Constitution in a way that would evade scrutiny under the 6 3 express guarantees of the Charter. 2008 CanLIIDocs 118 It was the fourth argument to which Lamer C.J.C. acceded: that the exercise of parliamentary privilege by members of the legislative assembly is not contemplated by section 32 of the Charter, and therefore the ChartaYs guarantees do not apply. He provided a lengthy exegesis64 of the terms legislatureand govermrnt in section 32, in other provisions of the Constitution, and in the related jurisprudence of the Court, and concluded that the legislative assembly, whilst an integral part of the legislature, was not itself the legislature, as the legislature is necessarily composed of the Lieutenant Governor-the representative of the Crown-and the assembly. In this he was correct, of course, but that did not explain why the greater ("the legislature" in section 32 of the Charter) could not include the lesser (the legislative assembly) for purposes of the application of the Garte. Moreover, the logic of his position drove him to the ancillary conclusion that as it is the so-called "legislative product" of the legislature that is covered by section 32-the enactments of the legislature-then legislated, as opposed to inherent, parliamentary privileges, are caught by the express wording of section 32 as "matters within the authority of the 6 legislature of each province:"

60. Ibid. at 354. (Here, Lamer C.J.C. saw a parallel between the principle of judicial independence, said to be derived from the preamble to the GraitutionAct, 1867 in Beaurgardv. Canada, 119861 2 S.C.R. 56 at 72, 30 D.L.R. (4th) 481 [Bcurardcited to S.C.R.1, and parliamentary privilege as the means by which "provincial Houses of Assembly are able to control their own proceedings and thereby to maintain the independence of the legislative process" at 354.) 61. Mid. 62. Ihid, at 355. 63. Ihid 64. Ibi(d at 355-63. 65. The relevant provision of s. 32 reads as follows: "32. (1) This Charter applies ... (b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province." PARLIAMENTARY PRIVILEGE, 587 THE CANADIAN CONSTITUTION AND THE COURTS

There is no doubt that this is true in the sense that the provincial legislatures have the power to legislate in relation to privileges. The legislation that the provinces have enacted 66 with respect to privileges will be reviewable under the Charterasis all other legislation.

This determination was also consistent with his view that the constitutional provisions granting legislative authority to Parliament and the provincial legislatures to make laws in relation to the privileges of their respective legislative chambers did not result in the constitutional entrenchment of those privileges:

If... s. 18 of the GOistitution Act, 1867entrenched the parliamentary privileges of the House of Commons, my conclusion on this point might be different. However, as I read s. 18, it does not entrench the parliamentary privileges of the House of Commons; rather, it entrenches the power of Parliament to legislate those privileges for itself in the same way that s. 45 of the Cons'tution Act, 1982 entrenches the power of the provincial legislatures to legislate their own privileges by way of amendments to their 67 constitutions.

Justice McLachlin, writing for four of the judges (La Forest J. substantially 2008 CanLIIDocs 118 concurring in his brief separate opinion) agreed with the Chief Justice that the Charter did not apply to the exercise of privilege by the Nova Scotia House of Assembly in the instant case, but "not because a legislative body is never subject to the Charter." Rather, the exercise of the privilege was "pursuant to a right which enjoys constitutional status." Having such status, "this right is not one that can be abrogated by the Charter."" Justice McLachlin found the textual argument that section 32 of the Charter does not apply to a legislative assembly to be "inconclusive. ""' Nor, in her view, did a purposive interpretation of section 32 lead to the result that the Charter does not 7 apply to the assembly. " From that perspective, the legislative assembly might be considered for some purposes to be a governmental actor sufficient to attract the application of the Charter.7 At the same time, however, she disagreed with the conclusion 72 of Cory J. that the Chartershould apply to the actions of the legislative assembly if 73 by that he meant that the Charter should apply to all of the actions of the assembly. She rejected the argument that the power of the House of Assembly at issue in the appeal could not be put into question because the Charter could never apply to any of the actions of a legislative assembly.7

66. NewBrwisisc Brmdcasting, supm note 3 at 364. 67. bid.at 355. 68. Ibid. at 368. 69. Ibid. at 369. 70. Ibid. at 370. 71. Ibid. at 371. 72. Ibd at 401. 73. id. at 372. 74. Ibid. at 372-73. 588 OTTAWA LAW REVIEW REVUE DE DROIT D'OTTAWA 39:3 39:3

Like the Chief Justice, McLachlin J. stated that she would be concerned about the implications of reading section 88 of the Gnstitution Act, 1867 as entrenching, rather than simply continuing, the provincial constitutions of Nova Scotia and New Brunswick. ' She also concurred in the view that the preamble of the Constitution Act, 1867 did not import article 9 of the English Bill of Rights into the provisions of the Constitution of Canada: "it is clear that, absent specific reference, the wording of the preamble should not be understood to refer to a specific 76 article of the English Bill of Rights." Instead, McLachlin J.was persuaded by the third argument: the Nova Scotia House of Assembly enjoyed the constitutional power to exclude strangers from its chamber on the basis of the preamble to the Constitution Act, 1867, "historical tradition, and the pragmatic principle that the legislatures must be presumed to possess such constitutional powers as are necessary for their proper functioning."7 The Parliament of Canada and the provincial legislatures had been closely modelled on the

United Kingdom Parliament, including a Speaker "empowered to maintain order and 2008 CanLIIDocs 118 decorum in the proceedings" of each chamber. It followed that a Speaker of a Canadian legislative body would possess "similar powers" to the extent such powers were necessary to the efficient functioning of the legislative chamber.7s "There is no question," McLachlin J. declared, that the preamble of the Gnstitution Act, 1867"guarantees the continuance of Parliamentary governance," and through the operation of federalism, "this guarantee extends to the provincial legislatures in the same manner as to the federal Parliament." 79 Justice McLachlin's opinion in NewBrunsvick Broadcastingthus became one of the earliest to assert that the preamble of the Act of 1867-although not itself a prowsion of the Constitution and charac- terized in the Ra triation Rdaateuce as having "no enacting force"o was a source of fundamental guarantees."

75. Ibid. at 374. 76. Ibid. She added: "This is not to say that the principles underlying art. 9 of the English Bill ofRights of 1689 do not form part of our law and inform our understanding of the appropriate relationship between the courts and legislative bodies in Canada," citing Redfr re:Resolution toArnud the Ciistitution, 1198111 S.C.R. 753 at 785, 125 D.L.R. (3d) I [ResolutiontoAna3id the Chittution cited to S.C.R.].There, the Court (porthe majority opinion of Laskin C.J.C. and Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ.) had referred to art. 9 as "undoubtedly in force aspart of the law of Canada." Perhaps what is meant here is that it applied through the doctrine of reception of English laws into the colonies, and thus, whilst "law" (and even, in an organic sense, constitutional law), it was not itself a provision of the Constitution of Canada. 77. NewBrnnsvsidc Broadcasting, ibid. at 374-75. 78. Ibid.at 375. 79. Ibid. 80. Rexution to Annd the Constitution,supranote 76 at 805. 81. The theme of the preamble of the Gistntutrn At, 1867 as being the primary source of the organizing princi- plesof the Canadian Constitution reached its zenith in the majority opinion of Lamer C.. C. in Rdtmce re Ra tion ofJudges o the Provindal Cant fPrinceEdarllsland, 119971 3 S.C.R. 3 at 68-75, 150 D.L.R. (4th) 577 Ihrmindal GtJudes cited to S.C.R.1. SeeWarren. J. Newman, "'Grand Entrance Hall,' Back Door or Foundation Stone?The Role of Constitutional Principles in Construing and Applying the Constitution of Canada" (2001) 14 Sup. Ct. L. Rev. 197. PARLIAMENTARY PRIVILEGE, 589 THE CANADIAN CONSTITUTION AND THE COURTS

Justice McLachlin stated that she shared "the concern of the Chief Justice that unwritten concepts not be freely imported into a constitutional regime which has culminated in a written constitution," and there was "eminent academic support for taking a cautious approach to the recognition of unwritten or unexpressed constitutional powers." Still, the question was "not susceptible to categoric exclusions," and she would be "unwilling to restrict the interpretation" of section 52(2) of the Cris6tutionAct, 1982 so as "to preclude giving effect to the intention behind the preamble to the Cmstitution Act, 1867, thereby denying recognition to the minimal, but 2 long recognized and essential, inherent privileges of Canadian legislative bodies."1 For McLachlin J., the inherent privileges of Canada's legislative bodies came within "the group of principles constitutionalized by virtue of this preamble:"'

This is not a case of importing an unexpressed concept into our constitutional regime, but of recognizing a legal power fundamental to the constitutional regime which Canada has adopted in its Cnstitution Acts, 1867 to 1982. Nor are we here treating a mere con-

vention to which the courts have not given legal effect; the authorities indicate that the 2008 CanLIIDocs 118 8 4 legal status of the inherent privileges has never been in doubt.

Like Lamer C.J.C. in his own reasons, McLachlin J. then embarked upon an extended historical analysis of the tradition of parliamentary privilege in the United Kingdom 5 and the later development of similar, although more limited privileges in the assemblies of the colonial legislatures. Over time, in the protracted contests between the legislative chambers and the common law courts, it gradually became accepted that the courts could properly assert a role in determining the existence (and scope) of a privilege, but once the privilege was established, the courts would not examine its exercise. The test of necessity was the criterion that the courts applied to determine the existence of a privilege claimed by the legislative house. The test of necessity was a jurisdictional test, not applied as a standard for judging the content of the privilege claimed: "If a matter falls within this necessary sphere of mat-

82. NewBmnsnmi Bradcasting,supra note 3 at 376-78. The scope of s. 52(2) of the onss'tutioin Act, 1982 led to a debate of sorts between McLachlin J. (as she then was) and Professor Peter W. Hogg, whose discussion in the third edition of his treatise, CnstitutionalLawf Canada (Toronto: Carswell, 1992) at I-7 was cited at length by McLachlin J. in Newiruns'dc Brndsa'sng, sipa note 3 at 376-378 of her reasons; Professor Hogg contending that s. 52(2) provided an exhaustive definition of the "Constitution of Canada" in s. 52(1), given the consequences-supremacy and entrenchment-of adding to the list of constitutional instruments, and McLachlin J. holding that s. 52(2)'s use of the word "includes" indicated that the definition, whilst compre- hensive, was not necessarily closed. Professor Hogg replied to this contention in the fourth edition of his treatise. Peter W. Hogg, CGrssitutnial LawcdCanada, 4th ed. (Toronto: Carswell, 1997) at 9-1 . For further discussion, see Warren J. Newman, "Defining the 'Constitution of Canada' Since 1982:The Scope of the Legislative Powers of Constitutional Amendment Under Sections 44 and 45 of the (aIsuitution Act, 1987 (2003) 22 Sup. Ct. L. Rev. 423 at 481-84. 83. NesvBrunsiidc Bruackasting,ibid. at 377. 84. lid at 377-78. 85. Ibid. at 379-84. 590 OTTAWA LAW REVIEW REVUE DE DROIT D'OTTAWA 39:3 39:3

ters without which the dignity and efficiency of the House cannot be upheld, courts will not inquire into questions concerning such privilege."Those questions are left to s6 the exclusive jurisdiction of the legislative houses. Specific privileges identified as having been recognized as necessary in the United Kingdom include: (i) freedom of speech, as well as immunity from civil proceedings with respect to matters arising from the carrying out of the duties of a member of the House; (ii) the House's exclusive control over its own proceedings; (iii)the power of the House to exclude strangers from the legislative chamber; 7 (iv) control over the publication of debates and proceedings in the House.1 After establishing that the right to exclude strangers from the chamber had long been upheld by courts in the United Kingdom and in Canada, McLachlin J. concluded that "this privilege is as necessary to modern Canadian democracy as it has

been to democracies here and elsewhere in past centuries." It was, she stated, of para- 2008 CanLIIDocs 118 mount importance that debates in the legislative chamber, which were "at the core of the system of representative government," not be disrupted or interfered with by strangers to the assembly. It followed that the legislative assembly must have the right to exclude strangers if it was to function effectively." Curial deference to the legislative assembly in this regard also flowed from the separation of powers. It was fundamental to the workings of parliamentary democracy that each of the branches of government-the Crown, the legislative body and the courts-"play their proper role."" In other words, "[ijt is equally fundamental that no one of them overstep its bounds, that each show proper deference for the legitimate sphere of activity of the other."9" The Garter,she acknowledged, had affected the balance of powers between the legislative and the executive branches on one hand, and the courts on the other, by mandating judicial review of laws and government action. However, there was no mandate in the Chartterfor taking "the reallocation of powers which it effected" to the extreme of abrogating "the long-standing constitutional right of Parliament and the legislative assemblies to exclude strangers" and subjecting the rulings of the Speaker on what is disruptive to proceedings of the House to the "superior review of the courts.""'

86. Ihid. at 383. 87. id. at 385. (Justice McLachlin drew on Erskine May's treatise, which provided "convincing justifications for each of these privileges" at 385.) 88. ibid.at 387. 89. ibid.at 389. 90. Ihid. (This is one of the earliest reasoned justifications in the Supreme Court's jurisprudence for the emerg- ing role of the separation-of-powers doctrine in a parliamentary system of government.) 91. Iid PARLIAMENTARY PRIVILEGE, 591 THE CANADIAN CONSTITUTION AND THE COURTS

On the principle that "one part of the Constitution cannot abrogate another part of the Constitution,"92 McLachlin J. distinguished her own decision in the Electoral Boundaries Rdefmce,9 where what was at issue was the exercise of provincial legislative authority pursuant to the constitutional power to amend the provincial constitution (the exercise of which was perforce subject to Charter scrutiny) rather than, as in NewBnsck Broadcasting,the diminishing or abrogation of the constitutional power (the privilege of excluding strangers from the provincial assembly) itself. 14 Justice McLachlin concluded that the legislative assembly had acted within its constitutional powers and the Charterdid not apply. 95 In his brief concurring opinion, La Forest J. focused on the organic approach to inherent parliamentary privileges as flowing from the very nature of parliamentary institutions. When the British government granted a legislative assembly to a colony, the grant carried the adjunct power necessary for the assembly to carry out its functions and regulate its internal processes. 9" These powers were not as broad as those exercised by the Houses of the United Kingdom Parliament, but "colonial leg- 2008 CanLIIDocs 118 islatures necessarily had to have such privileges as were necessary to their functioning."97 The House of Assembly of Nova Scotia (including its privileges) was part of the province's pre-Confederation constitution, which had been continued by the Gxistitution Act, 1867.Thus, parliamentary privileges in Nova Scotia were "ultimately anchored in the grant of a legislative assembly" carried forward by the Cnstitutian Act, 1867. The preamble to that Act, with its recital contemplating a constitution similar in principle to that of the United Kingdom for Canada, "gives expression to the nature of the legislative bodies that were continued or established by it," with privileges that are "similar in principle, though not identical," to those of the United Kingdom Houses of Parliament.9" The late Justice John Sopinka, in a dissenting opinion in all but name, would have found the privileges of the legislative assembly of Nova Scotia to be within the ambit and purview of the aJarter because they were matters "within the authority of the legislature" under section 32 of the charter. That was the case whether the privileges in question were actually established by an Act of the legislature or by the internal rules and standing orders of the legislative assembly: in either instance, they were the potential object of legislation and thus subject to section 32. 99 The difficulty with

92. Ibid. at 390. See Retncere Bil 30, An Act toan-ndtheEduc in Act (Ot.), [19871 I S.C.R. 1148,40 D.L.R. (4th) 18. 93. RefdmerePrmindaiEl EloctoalBoundrie(Sask), 119911 2 S.C.R. 158, 81 D.L.R. (4th) 16. 94. NewBrunnssid Broadcasting,supra note 3. ("In this case, the issue is not the fruit of the constitutional tree (the exercise of a power), but the tree itself (the existence of the power)" at 392.) 95. Ibid. at 393. 96. Ibid. at 367. 97. ibid. at 368. 98. Ibid. 99. ibid.at 395. 592 OTTAWA LAW REVIEW REVUE DE DROIT D'OTTAWA 39:3 39:3

the position of McLachlin J., stated Sopinka J., was that "in order to immunize certain privileges from Charterreview, she finds that they are a part of the Constitution of Canada.""" He found it strange that constitutional entrenchment of the privileges of the legislative assembly would flow from the preamble to the Gxnstution Act, 1867 and thereby, arguably, put them beyond the reach of legislative action by the legislature itself: "It seems to me that the prospect of losing legislative control over its rights and privileges would be a high price for the appellant to pay in order to escape the Charter. One would expect something more than a general reference to 'a Constitution similar in Principle' in a preamble in order to have this effect."' In the result, Sopinka J.,like Cory J., would have found section 32 of the Qiartertoextend the reach of judicial review to parliamentary privilege, but that a violation under section 2(b)'s guarantee of freedom of expression would be saved by section 1 and the "eminently sensible" accommodation adopted by the House of Assembly of regulating the number and placement of television cameras in the Assembly."'_ 2008 CanLIIDocs 118

V. CONCLUSIONS WITH RESPECT TO NEW BRUNSVWCK BROADCASTING

The majority decision in New Bnmnsvi& Brwdcasting stood for the proposition that the exercise of an inhowtpower of a provincial legislative assembly-that is, one established and recognized as necessary to the dignity and proper functioning of the legislative house-would not be scrutinized by the courts for compliance with the guarantees of the Charter. The decision did not, on its face, settle the issue of whether lgislatod privileges-those established by an Act of the legislature in the exercise of its legislative authority to amend the constitution of the province-was like the exercise of other legislative powers, "the fruit of the constitutional tree,""' and thus subject to the application of the Charter. Nor, a Jart'kn', did the decision settle the scope and application of parliamentary privilege at the federal level, except, by inference and analogy, as perhaps regarded inhermt privileges. It would take the unanimous judgment of the Court in the Vaid case, some twelve years later, to deal with these issues regarding the Parliament of Canada's express legislative authority to determine the privileges and immunities of the

100. lid at 396. 101. IhicL(Justice Sopinka also pointed, in this regard, to the observations of La Forest J. in R. v. Alarue, 119881 I 8.C.R. 234, 48 D.L.R. (4th) 1,on the distinction between entrenched and non-entrenched provisions of the provincial constitution, and his finding that s. 110 of TheNcrth-M& T nrritcsAct, R.S.C. 1886, c. 50, although carried forward by the Saskdtchewmn Act,S.C. 1905, c. 42 (itself part of the Constitution of Canada), was not entrenched.) 102. Iid. ("While I reject the submission that the exercise of this privilege is beyond the reach of judicial reviews, I cannot ignore that this is an area in which the Court should not dictate the precise method in which the Assembly should keep order in its own house" at 398.) 103. Iid. at 392. PARLIAMENTARY PRIVILEGE, 593 THE CANADIAN CONSTITUTION AND THE COURTS

Senate and the House of Commons and their respective members under section 18 of the CnstituainAct, 1867. The broad array of views expressed by Lamer C.J.C. and McLachlin, Sopinka, La Forest and Cory JJ. in their respective opinions in NewBnnsv4c Brradcastingbespeaks a Court that was struggling with issues of principle and practice, as well as one that was beginning to engage not only in historical and textual but also structural analysis of the Constitution, as well as of the framework of institutional roles and relationships it had established amongst the branches of government in our parliamentary system. This structural analysis, as well as its insistence on the unwritten constitutional principles under-girding the express provisions of the constitutional text-including the rule of law, parliamentary sovereignty and the separation of powers-was to be developed in a series of other cases, notably dealing with the meaning and scope of the principle of judicial independence.°04 This analytical approach would, of course, later reach its zenith in the Qidc Saoex cn Retermce.1 5 However, in NewBnf.sick Bradcastingand the subsequent case of HarIey v. New Rnanick (Attoney GeeraJ)/6, the uses and limits of struc- 2008 CanLIIDocs 118 turalism were still being worked out in the particular context of parliamentary privilege.

VI. HARVEY: THE JUDICIAL FAULT LINES PERSIST

The Supreme Court was faced again with the issue of the inherent privileges of a provincial legislative assembly in Harvey, decided three years after New Brunsv'dk Broadcasting.This time, however, only McLachlin J. (joined by L'Heureux-Dub6 J.) based her opinion on inherent parliamentary privilege. The appellant, Fred Harvey, had been elected to the Legislative Assembly of New Brunswick in 1991. After having been found guilty of committing an illegal practice (i.e. inducing an underage teenager to vote) under the provincial Eloiiaos Act,0 7 he was expelled from the Assembly under section 119 of that Act, which provided for disqualification for five years. He launched a challenge to the constitutional validity of the provision under section 3 of the Charte."s La Forest J., writing for himself and Sopinka, Gonthier,

104. See e.g. Madvllan Blocsid Ltd. v. Sinpan, [19961 2 S.C.R. 1048, 137 D.L.R. (4th) 633; Coape"v Canada (Huran Rights CGa'mion), 119961 3 S.C.R. 854, 140 D.L.R. (4th) 193; Ptnncial Cucudge, szuraqnote 81; Balsxk v. Canada (AttrneteGmnl),2002 SCC 57,1200213 S.C.R. 3,214 D.L.R. (4th) 193. 105. Reerenoe re Seemvon of Qudas 119981 2 S.C.R. 217, 161 D.L.R. (4th) 385. See Warren J. Newman, 7he Qebec Smion Rdamuxe: The Rule of Lawand the bition of the Attomy Genml orCanada (Toronto: York University Centre for Public Law and Public Policy, 1999). See also Warren J. Newman, "The Principles of the Rule of Law and Parliamentary Sovereignty in Constitutional Theory and Litigation" (2004-2005) 16 N.J.C.L. 175-296. 106. 1199612 S.C.R. 876, 137 D.L.R. (4th) 142 IHartrycited to S.C.R.]. 107. R.S.N.B. 1973, c. E-3. 108. Section 3 of the arter, Agma note 2, provides as follows: "Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein." 594 OTTAWA LAW REVIEW REVUE DE DROIT D'OTTAWA 39:3 39:3

Cory, lacobucci and Major JJ., assumed that in light of the fact that the parties had not grounded their argument in the privileges of the legislative assembly, the impugned provisions of the Electiois Act were subject to scrutiny under the Charter. La Forest J. found that the provisions infringed section 3 of the Charterand the right to be qualified for membership in the assembly, but were saved as a reasonable limit on that right under section 1.1'9 Chief Justice Lamer maintained the position he had adopted in NewBninsuick Brcadcasting--thatthe application of the Chartrto the exercise of parliamentary privilege depends upon the threshold question of whether "the parliamentary privilege at issue is embodied in, or being exercised pursuant to, legislation enacted by the legislature, on the one hand, or pursuant to the internal and inherent 'rules' or 'resolutions' of a House ofAssembly to govern its proceedings on the other.""" As the Charter applied in the present case, he would have dismissed the appeal for the reasons given by La Forest J.

Justice McLachlin was also largely true to her previous approach in New 2008 CanLIIDocs 118 BnHisii&Bracasting,but seemed to move between the inherent privileges exercised by resolutions of the legislative assembly and the privileges enacted by the legislature without clearly distinguishing the two for purposes of the application of the Charter. This also betrayed a relaxed use of the terms that properly characterize the legislative bodies: an unfortunate practice begun with NewBinswidc Broadcastingand continued not only in Harvybut later in Vaid, wherein sometimes the Houses of Parliament (the Senate and Commons, but particularly the latter chamber) are conflated with Parliament itself. These terms are not synonyms interchangeable at will. The distinction between Parliament and the provincial legislatures on the one hand, and the Houses of Parliament and the legislative assemblies on the other, is not a fussy ter- minological nicety but a fundamental proposition, with real consequences rooted in our constitutional history and heritage. Indeed, the Parliament of Canada is a defined term in our Constitution,' 1 as is the provincial legislature. " The Crown cannot legislate on its own,"' and neither can the parliamentary chambers or assemblies.14

109. H-aLrey, spra note 106 at 884-909. 110. IJidat 883. (Chief justice Lamer emphasized that he was "unconvinced by the reasons of the majority" in NewvBninsssdc Broddasting"that those privileges not dependent on statute for their existence had been granted a constitutional status by the preamble of the CGtsintutian Act,1867and remain so today" at 883-884. He was to express this sentiment yet again in Pnwindal CourtJudge', sum note 81, but nonetheless would go on in that opinion to attribute remarkable force and effect to the preamble as the source of the principle of judicial independence.) 11I.CGLsitution Act, 1867, susa note 29. ("There shall be One Parliament for Canada, consisting of the Queen, an Upper House styled the Senate, and the House of Commons," s. 17.) 112. See e.g. ibid.("There shall be a Legislature for Ontario consisting of the Lieutenant Governor and of One House, styled the Legislative Assembly of Ontario," s. 69.) 113. Ca, cFProdanaicrs(1670),12 Co. Rep. 74, 77 E.R. 1352 at 1353 (K.B.). (The opening words ofs. 91 of the ConstitutionAct, 1867 set out the legislative authority of the Parliament of Canada in these terms: "it shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada .... ") PARLIAMENTARY PRIVILEGE, 595 THE CANADIAN CONSTITUTION AND THE COURTS

In Harvey, McLachlin J. expressly invoked the doctrine of the separation of powers to buttress the notion of mutual deference each branch of government was said to owe to the other, a view she had put forward in NewBninsAck Broadcasitng."5 This too was stated to flow from the preamble to the Act of 1867:

The preamble to the Gmstitution Act, 1867 affirms a parliamentary system of government, incorporating into the Canadian Constitution the right of Parliament and the legislatures to regulate their own affairs. The preamble also incorporates the notion of the separation of powers, inherent in British parliamentary democracy, which precludes the courts from trenching on the internal affairs of the other branches of government.116

Given that parliamentary privilege "enjoys constitutional status," McLachlin J. affirmed, it was not subject to the Charter,"as are ordinary laws." Both were "essential parts of the Constitution of Canada" and neither prevailed over the other. I7 However, unlike in NewBnnsickBruadcasting,where section 2(b) of the Charterwas held simply to have no application to parliamentary privilege (at least in that case), here, McLachlin J. introduced an intermediate step in the analysis: a reconciliation effort. "Where appar- 2008 CanLIIDocs 118 ent conflicts between different constitutional principles arise, the proper approach is not to resolve the conflict by subordinating one principle to the other, but rather to attempt to reconcile them.""' This reconciliation was to be achieved by construing the democratic principle in section 3 of the Charter in a purposive manner, as directed to the preservation of democratic values. As "the fundamental constitutional right of Parliament and the legislatures to regulate their own proceedings" is also essential to democracy, section 3 of the Charter"must be read as being consistent with parliamentary privilege," including the power to expel and disqualify members who are found guilty of corrupt election practices. "But s. 3 still operates to prevent citizens from being disqualified from holding office on grounds which fall outside" the normal rules of parliamentary privilege; "race and gender" would be two such prohibited grounds."' The role of the courts is to assess whether ejection and disqualification "falls within the scope of parliamentary privilege." 12 The test was that of necessity: "whether the dignity, integrity and efficiency of the legislative body could be maintained if it were not per- mitted to carry out the type of action sought to be done .... "121

114. See e.g. Stodadale, supra note 21. See xiastitudc At, 1867, syqra note 29. ("In each Province the Legislature may exclusively make Laws . . . ." s. 92.) 115. NewBrunm5W Broadcasting,ssqra note 3 at 389. 116. Harsev, %tpanote 106 at para. 68. Despite this assertion, the scope of the doctrine of the separation of powers remains a controversial one in a parliamentary system. Walter Bagehot, in The Englsh Costitution(first published in 1867), famously described British parliamentary and cabinet government as "the close union, the nearly complete fusion, of the executive and legislative powers," in contrast with the separation of pow- erstypified by the American presidential system. Walter Bagehot, The English Gnstitution,and hir Poitical Esys (NewYork: D. Appleton and Company, 1911) at 78. 117. Harey, ibid. at para. 69. 118. Ibid. 119. Ibid. at para. 70. 120. Ibidat para. 71. 121. Ibid. at para. 72. 596 OTTAWA LAW REVIEW REVUE DE DROIT D'OTTAWA 39:3 39:3

There was, in the view of McLachlin J., "much to recommend" the extension of the necessity test to "all exercises of parliamentary privilege, whether asserted by resolution or statute .... "While she did not believe that Harvey required a definitive answer to this question, she chose to proceed on the assumption that when faced with a legislated disqualification, "the court should ask whether the privilege claimed is necessary to the dignity, integrity or efficient functioning of the legislature."' 22 The reconciliation, by the courts, of "the constitutional principle of parliamentary privilege" with the guarantees of section 3 of the Carterwould proceed along the follow- ing lines and logic:

Section 3 of the Oarter guarantees that candidates will not be denied electoral office by reason of discrimination on the basis of such grounds as race, class or gender. It does not, however, oust the historic privilege of the legislature to deny membership to those who disqualify themselves by crime, corruption or other misconduct. The courts may review an act or ruling of the legislature to determine whether it properly falls within the domain of parliamentary privilege. If it does not, they may proceed with Oiarte-review. 2008 CanLIIDocs 118 If it does, they must leave the matter to the legislature. This approach preserves parliamentary privilege and the principle of the separation of powers, while at the same time assuring the protection of the right under s.3 of the Charter not to be excluded from public office on grounds unrelated to the need of the legislature to maintain order and 23 the integrity of its processes. 1

In the result, McLachlin J. concluded that the power to disqualify members for corruption was "necessary to the dignity, integrity and efficient functioning of a legislature." As such, it was "protected by parliamentary privilege and falls outside the ambit 2 4 of s. 3 of the Charter. It is a matter for the legislature, not the courts, to determine."

VII. VAID: A UNANIMOUS PERSPECTIVE ON LEGISLATED PRIVILEGES

12 In Vaid, 5 the Supreme Court had occasion to examine the source, status and scope of parliamentary privilege under section 18 of the 0xistitutim Act, 1867 and section 4 of the Pahianmt of Canada Act.' This unanimous judgment, rendered by Justice Binnie on behalf of a nine-judge bench, 2 7 dispelled much of the remaining ambigui- ty about legislated privileges that had lingered in the aftermath of New l3runsidc Broadcastingand Harvey.

122. Iid at para. 73. 123. Ilid.at para. 74. 124. Ibid. at para. 88. 125. Supa note 4. I disclose that I advised on the constitutional position adopted by the Attorney General of Canada, who was an intervener in Vaid. 126. S qa note 30. 127. Chief Justice McLachlin and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron J. Of these judges, only McLachlin C.J.C. had been on the bench at the time the decision in NewBnnsisuck Bmdr.sting was issued. PARLIAMENTARY PRIVILEGE, 597 THE CANADIAN CONSTITUTION AND THE COURTS

The former Speaker of the House of Commons, the Hon. Gilbert Parent, had been the subject of a complaint by his former chauffeur, Mr Satnam Vaid, that the latter had been effectively dismissed from his employment on grounds of workplace discrimination and harassment under the Canadian Hurmn Rights Act."" The Commons and the former Speaker made a preliminary objection to the jurisdiction of the Canadian Human Rights Tribunal to investigate Vaid's complaint, on the basis that the hiring and dismissal of employees of the House were internal matters that could not be question or reviewed by any court or tribunal outside the House. The Canadian Human Rights Commission argued that "it is unthinkable that Parliament would seek to deny its employees the benefit of labour and human rights protections which 2 Parliament itself has imposed on every other federal employer." 9 Justice Binnie, like McLachlin J. in Harvey and New Brunswck Broadcasting, invoked what he referred to as "the fundamental constitutional separation of powers" to buttress the role of parliamentary privilege, itself"a principle common to all coun- tries based on the Westminster system ...."I'There were few issues, he stated, "as 2008 CanLIIDocs 118 important to our constitutional equilibrium as the relationship between the legislature and the other branches of the State," the executive and the courts."' 1 It was, he continued, "a wise principle that the courts and Parliament strive to respect each 32 other's role in the conduct of public affairs." The purpose of privilege, said Binnie J.,was "to recognize Parliament's exd/usive jurisdiction to deal with complaints within its privileged sphere of activity.""31 Thus, the "proper focus" in a case in which a court is called upon to examine the issue, is "not the grounds on which a particular privilege is exercised, but the prior question 3 4 of the existence and scope of the privilege asserted by Parliament in the first place."' In Vaid, Binnie J. rejected the claim of parliamentary privilege, holding that the words employed by Parliament in the Canadian Hunnn Rights Act were "wide enough to cover its own employees"; that the "sweeping exemption" contended for by the appellants had not been the demonstrable intention of Parliament in enacting the legislation; nor was such a broad exception "necessary," as a matter of general princi- pie, to parliamentary privilege.1's

128. R.S.C. 1985, c. H-6. 129. Vaid, supranote 4 atpara. 3. (Here, the term "Parliament" is used in the same breath to mean the federal legislature and one of its components, the House of Commons. See the criticism of this occasional tendency to conflatethe two inthis paper's discussion of HarI , spra note 106.) 130. Vai ibid.at para. 21. 131. Mid. at para. 4. 132. Ibid.at para. 20. 133. Ibid.at para. 4. (Here, "Parliament" appears to mean both Parliament pr.,e, in the exercise of its legislative authority, and the Houses of Parliament, in the exercise of their internal powers over the conduct of the affairs in each chamber.) 134. [id. 135. Iid atpara. 5.By s,2 of the anadan Hurmn Rights Act, sAq/anote 128, thestatute applied to all "matters com- ing within the legislative authority of Parliament" and was broad enough, in the words of Binnie J.,to "apply to the employees of the Senate and the House of Commons of Canada." Ibid. at paras. 25-26 (citation omittedl. 598 OTTAWA LAW REVIEW REVUE DE DROIT D'OTTAWA 39:3 39:3

At the same time, the appellants had made what Binnie J. termed "a narrower administrative law objection:' 36 that Parliament, in the exercise of its legislative authority, had enacted an exclusive labour relations scheme under the ParamtaryEnploynmt and Staff Rdatiais Act, 13 7 and the grievance and dispute resolution procedures set out in this statute displaced any recourse to the Canadian Human Rights Tribunal under the Canadan Hurmn Rights Act. This subsidiary conclusion, which, Binnie J. emphasized, "rests entirely on administrative law principles" and had no connection with parliamentary privilege, allowed the appellants to succeed. 3 The fundamental provisions of the CanadianHunan PRghts Act protected employees on Parliament Hill performing support staff functions like MrVaid, but their recourse was to be through the administrative chan- nels established the Pa"rliaymtaryEnploymt and Staft'Rdatios Act, not the human rights statute. '.'9 Nor would the Canadian Huwmn Rights Act apply to matters truly internal to the House of Commons itself, given the need for its legislative work "to proceed unimped-

ed by any external body or institution, including the courts." 4 It would, stated Binnie 2008 CanLIIDocs 118 J., be "intolerable," for instance, "if a member of the House of Commons who was over- looked by the Speaker at question period could invoke the investigatory powers of the Canadian Human Rights Commission with a complaint that the Speaker's choice of another member of the House discriminated on some ground prohibited by the Canadan Humin Rights Act"; or (in a further example) "to seek a ruling from the ordinary courts that the Speaker's choice violated the member's guarantee of free speech under the Giart. " 14' These were matters to be resolved by the House's own internal procedures. 2 The extent of parliamentary privilege asserted by parliamentarians had waxed and waned over the years, Binnie J. noted, and there was also an occasional difference between the scope of privilege claimed on the one hand and the scope recognized by the 43 courts as necessary. 1 Each branch was to be mindful of the legitimate sphere of activity of the other, and the justiciability of certain issues depended, in part, on the courts' appreciation of the limits of their own role in the constitutional system of government. 14 However, the wording of the CanadianHuman Rights Act was pirm fade"broad enough to cover labour relations on Parliament Hill."4 5

136. Ibid. at para. 6. 137. R.S.C., 1985, c. 33 (2d Supp.). 138. Vaid, supra note 4 at para. 6. 139. Ibid. 140. Iid.at para. 20. 141. Iid. 142. Ibid. Additionally, "such external intervention would inevitably create delays, disruption, uncertainties and costs which would hold up the nation's business and on that account would be unacceptable even if, in the end, the Speaker's rulings were vindicated asentirely proper." 143. fbid.at paras. 23-24. 144. See ibid. at para. 24. 145. Iid. at para. 25. PARLIAMENTARY PRIVILEGE, 599 THE CANADIAN CONSTITUTION AND THE COURTS

Whilst there were "significant differences" between parliamentary privilege in relation to the Senate and House of Commons, for which "specific provision" had been made in section 18 of the Grmttution Act, 1867, and privilege as it applied to the provincial level, "which has a different constitutional underpinning," New Bninswi&k Broadcasting and other decisions had resolved a number of key issues.146 Binnie J. formulated twelve propositions that had been recognized by the courts and 47 parliamentary experts alike: 1 1. Legislative bodies established by the Cmstitution Act, 1867"do not consti- tute enclaves shielded from the ordinary law of the land." 2. "Parliamentary privilege in the Canadian context is the sum of the privileges, immunities and powers enjoyed by the Senate, the House of Commons and provincial legislative assemblies, and by each member individually, without which they could not discharge their functions . ..." 3. "Parliamentary privilege does not create a gap in the general public law of

Canada but is an important part of it, inherited from the Parliament at 2008 CanLIIDocs 118 Westminster by virtue of the preamble to the ii'sdtuticn Act, 1867 and in the case of the Canadian Parliament, through s. 18 of the same Act . ..." 4. "Parliamentary privilege includes 'the necessary immunity that the law provides for Members of Parliament, and for Members of the legislatures of each of the ten provinces .. .in order for these legislators to do their legislative work.' . . .The idea of necessity is thus linked to the autonomy required by legislative assemblies and their members to do their job." 5. "The historical foundation of every privilege of Parliament is necessity. If a sphere of the legislative body's activity could be left to be dealt with under the ordinary law of the land without interfering with the assembly's ability to fulfill its constitutional functions, then immunity would be unnecessary and the claimed privilege would not exist . ..." 6. "When the existence of a category (or sphere of activity) for which inherent privilege is claimed (at least at the provincial level) is put in issue, the court must not only look at the historical roots of the claim but also determine whether the category of inherent privilege continues to be necessary to the functioning of the legislative body today. Parliamentary history, while highly relevant, is not conclusive ... "

146. Ibid.at para. 29. 147. Mid. at para. 29. (Justice Binnie's propositions are quoted or paraphrased in the body of the text of this paper. For ease of exposition, the supporting doctrinal references and most of the case citations, particularly those drawn from NewBrnssick Bradcastng,have not been reproduced here, with the exception of the tenth proposition, where the jurisprudential references have been retained as footnotes and indeed, addi- tional commentary and case law has been cited.) 600 OTTAWA LAW REVIEW REVUE DE DROIT D'OTTAWA 39:3 39:3

7. "'Necessity' in this context is to be read broadly. The time-honoured test, derived from the law and custom of Parliament at Westminster, is what 'the dignity and efficiency of the House' require .... " 8. "Proof of necessity may rest in part in 'shewing that it has been long exercised and acquiesced in.' . . .The party who seeks to rely on the immunity provided by parliamentary privilege has the onus of establishing its existence .... . 9. "Proof of necessity is required only to establish the existence and scope of a ca tegcry of privilege. Once the category (or sphere of activity) is established, it is for Parliament, not the courts, to determine whether in a particular case the erafseof the privilege is necessary or appropriate. In other words, within categories of privilege, Parliament is the judge of the occasion and manner of its exercise and such exercise is not reviewable by the courts ..... 148 10. "'Categories' include freedom of speech . . . ; control by the Houses of

' 149 2008 CanLIIDocs 118 Parliament over 'debates or proceedings in Parliament . . . including day-to-day procedure in the House' 50 ... ; the power to exclude strangers 5 2 from proceedings' . . . ; disciplinary authority over members . . . ; and

148. Ibid. citing Stqci-h v. Goyer(1979), 23 O.R. (2d) 696, 97 D.L.R. (3d) 369 (C.A.); Re OarkandAttornev- G. eml oCanada (1977), 17 O.R. (2d) 593, 81 D.L.R. (3d) 33 (H.C.); Prdble v. Tdeeviscn NewZealand Ltd., 11995 I A.C. 321,119941 3WL.R. 970 (P.C.); Harrilm v. A/Faye 1200012 All E.R. 224,[20011A.C. 395 (H.L.). 149. See e.g. Pq'pcr v. I-art, [19931 I A.C. 593, [19931 I All E.R. 42 (H.L.), a leading case in which the House of Lords, sitting in its judicial capacity, confirmed the relaxation of the rule excluding parliamentary debates from the courts when interpreting statutes. "As a result of the decision in Fpesr v. flart, the courts now refer to parliamentary material where legislation is considered to be ambiguous or obscure, or leads to an absurdity; where the parliamentary material consists of one or more statements by a Minister or other pro- moter of a bill, together with such other parliamentary material as is necessary to understand such statements and their effect; and where the statements relied upon are clear." McKay, sua note 26 at 107. In Canada, the general exclusionary rule governing the admission of extrinsic evidence was recognized by the Supreme Court as no longer applicable in Rdtace re Residential Tenandes Act 1979 (Qhtario), [19811 I S.C.R. 714 at 722, 123 D.L.R. (3d) 554 (pe Dickson J. for the Court) IResidmtial Tmandfecited to S.C.R.]. See also Re Upper Churhill V4ter Rights Revuaon Act, [1984] 1 S.C.R. 297 at 317-319, 8 D.L.R. (4th) l(per McIntyre J. for the Court) [lUpper (nu-iill cited to S.C.R.1, excluding speeches and public declarations made both in and outside the Newfoundland Legislative Assembly: "They represent, no doubt, the considered views of the speakers at the time they were made, but cannot be said to be expressions of the intent of the Legislative Assembly." at 319. The rule was further relaxed, however, in R. v. !"maler, 1199313 S.C.R. 463 at 484, 107 D.L.R. (4th) 537 (p/rSopinka J. for the Court) [Mgentalercited to S.C.R.J: "The main criticism of such evidence has been that it cannot represent the 'intent' of the legislature, an incorpore- al body, but that is equally true of other forms of legislative history. Provided that the court remains mindful of the limited reliability and weight of Hansard evidence, it should be admitted as relevant to both the background and the purpose of legislation. Indeed, its admissibility in constitutional cases to aid in determining the background and purpose of legislation now appears well established." ISO. Justice Binnie gives the example of the practice of the Legislative Assembly of Ontario to begin the day's sitting with the Lord's Prayer, which was upheld in Ontario. Vaid, supra note 4 at para. 29 (citing OCtaio (SpcaknrodtheLegislative suyv) v. Qnario(Hunnn Rights Giari.'on) (2001), 54 O.R. (3d) 595, 201 D.L.R. (4th) 698 (C.A.)). 151. Iid.citing A, Brunsuvick Bruicaksing, sup-a note 3; Zindd v. Boudia (1999), 46 O.R. (3d) 410, 181 D.L.R. (4th) 463 (C.A.); R. : dums, 2004 ONCJ 327,1200410.J. No. 5135 (QL). PARLIAMENTARY PRIVILEGE, 601 THE CANADIAN CONSTITUTION AND THE COURTS

non-members who interfere with the discharge of parliamentary duties"3 , including immunity of members from subpoenas during a parliamentary session.154 Such general categories have historically been considered to be justified by the exigencies of parliamentary work." 11. "The role of the courts is to ensure that a claim of privilege does not immunize from the ordinary law the consequences of conduct by Parliament or its officers and employees that exceeds the necessary scope of the category of privilege .... . 12. "Courts are apt to look more closely at cases in which claims to privilege have an impact on persons outside the legislative assembly than at those which involve matters entirely internal to the legislature . . . ,,'5 "[A] finding that a particular area of parliamentary activity is covered by privilege has very significant legal consequences for non-members who claim to be injured by parliamentary conduct, including those whose reputations may

suffer because of references to them in parliamentary debate, for whom 2008 CanLIIDocs 118 56 the ordinary law will provide no remedy."' Justice Binnie then underlined the fact that both NewBrunsickBrvadcastingand Harvey had dealt with the legal status and effect of inhermt parliamentary privilege (and that, at the level of provincial legislative assemblies), whereas the Vaid case raised two new and important considerations: (1) did the test of necessity apply to privileges enacted by Parliament into law under section 18 of the Gistitutia Act, 1867, or were such legislated privileges, "by reason of their enactment under a specific constitutional power," irrefutable proof of the existence of necessity?" 7 (2) In dealing with a recognized category of privilege, to what extent might the courts, instead of the legislative body, "define its scope and limits without embarking on an impermissible review of the exercise of the privilege itself?" '5

152. Ibid. citing Harvey, supra note 106; Tafle'v. Brfitis Colurn'a (Cmin sscnerof cnflict oflntarst), 119981 B.C.J. No. 1332, (1998), 161 D.L.R. (4th) 511 (C.A.); Min v. Nrthnest T7rcriwes (Coflict otIntmrest GCmissonxr), 19991 N.WT.J. No. 5, 29 C.P.C. (4th) 362 (S.C.). 1 1 153. Ibid. citing Balims, supra note 151; Paysii v. Hubert (1904), 34 S.C.R. 400), 1904 S.C.J. No. 7 (QL). 154. [bid. citing Tdezone Inc v. Canada (Attorney General) (2004), 69 O.R. (3d) 161, 235 D.L.R. (4th) 719 (C.A.) ITdcznnecited to O.R.; Samrwon Indan Nation and Bandy. Canada, 2003 FC 975, [20041 I F.C.R. 556; Airmwxth Lunnir Co. v. Canada (Attcrne Gan'al), 2003 BCCA 239, 226 D.L.R. (4th) 93.The scope of this privilege has remained contentious. See Arthur c GlIet, 2007 QCCA 470, [20071 R.J.Q. 783; Ridddl v. The Right Rint, 120071 O.J. No. 3943, 161 A.C.WS. (3d) 74 (Q.L.) (S.C.) (perMaster Beaudoin). 155. Vaid, supra note 4 at para. 29. 156. Iid.at para. 30. For recent cases, see Gagliano v. Canada (Attcrney Genal), 2005 FC 576,1200513 F.C.R. 555, 253 D.L.R. (4th) 701 (F.C.) [Gaglianocited to F.C.R.]; Michaud v Bixcnette 2006 QCCA 775, [20061 R.J.Q. 1552, 150 A.C.WS. (3d) 350 (C.A.). I disclose that I acted as one of many counsel for the Attorney General of Canada in the Gagliano case. 157. Vaid, ibid. at para. 32. (Justice Binnie noted that McLachlin J. in Hamey, supra note 106, writing for herself and L'Heureux-Dub J., had suggested that there was "much to recommend" in the application of such a necessity test at the provincial level, but that the Court had not decided the point in HJarvei) IS8. Vaid, ibid. 602 OTTAWA LAW REVIEW REVUE DE DROIT D'OTTAWA 39:3 39:3

The threshold question was, however, the status of legislated privileges themselves, given Parliament's express legislative authority under section 18 of the Gmstitution Act, 1867 to enact privileges that might exceed those that could be said to be inherent in the establishment of the Senate and House of Commons themselves (although such legislated privileges may not, by the terms of section 18, exceed those held and enjoyed by the United Kingdom House of Commons in 1867). Justice Binnie acknowledged that in NewBrunsui& Broadcasting, Chief Justice Lamer would have denied legislated privileges constitutional status and would have subjected the exercise of legislative authority under section 18 to judicial review under section 32 of the Charter, the latter applying to the Parliament and government of Canada in respect of all matters within the authority of Parliament. '9 As section 18 of the CnstitutionAct, 1867 places the privileges of the Senate and the House of Commons within the authority of Parliament, therefore legislation enacted pursuant to section 18 would, like other laws enacted by Parliament, be subject to Charter review. 6U

This point was not determined by the majority in New Bunsick Broadcasting. 2008 CanLIIDocs 118 However, Binnie J. asserted that "the logic of the separate judgments written by McLachlin J. and La Forest J. points away from such a conclusion"; their views were 16 accepted by a majority of the Court; and "the point must now be taken as settled." ' This was a surprising conclusion to reach so peremptorily in Vaid, consider- ing the importance of the issue--do privileges and immunities, enacted by Parliament under a grant of legislative authority by the Constitution, themselves enjoy sufficient constitutional status so as to oust the application of the Charter? A commentator as respected as Professor Peter Hogg had come to the opposite conclusion,' 2 the slim majority of five judges in NewBrunsindc Broadcastinghad not really addressed the question,' 63 and not only Lamer C.J.C. but Sopinka J. had also taken a different view.'" Nonetheless, Binnie J. soldiered on, and his opinion must be taken to be that of a now-unanimous Court on the issue:

The immunity from external review flowing from the doctrine of privilege is conferred by the nature of the function (the Westminster model of parliamentary democracy), not

the source of the legal rule (i.e., inherent privilege versus legislated privilege) .... As was pointed out in NewBrunsW& Bradcating,parliamentary privilege enjoys the sae

constitutional weight and status as the OGarta- itself. 165

159. Ibd.at para. 33 160. Ibid. 161. Mid 162. See Hogg, suqranote 82. 163. See Newtnnssick Bmadca.ng, supranote 3. 164. Mid. 165. Vaid, .qqxa note 4 at para. 34. PARLIAMENTARY PRIVILEGE, 603 THE CANADIAN CONSTITUTION AND THE COURTS

It should be emphasized here that Justice Binnie's use of the term "constitutional status" means that such legislated privileges are immune from Charter attack, not that they are constitutionally protected from further legislative amendment. As we have noted,1 66 Parliament may, pursuant to section 18 of the GnistituticnAct, 1867, defime and circumscribe the privileges of the Houses and their members. To contend that such privileges, once legislated, are entrenched, would be tantamount to argu- ing that Parliament can only legislate once on the matter under section 18.That is evidently not the case; section 18 is framed as both a plenary and a continuing grant of 7 6 legislative power,"' and many federal statutes, from the Oidal languages Ace N to the Federal Acaomtability Act,169 have-by express provision or necessary implication- limited or otherwise affected the scope of parliamentary privilege. This is also con- sonant with the position in the United Kingdom, where from time to time, the Parliament at Westminster has, in the exercise of its undoubted legislative power, defined, circumscribed, or even abolished certain privileges claimed by members of the British Houses.7 0 2008 CanLIIDocs 118 By virtue of section 4 of the ParliammtofCanada Act, Parliament had, in principle, conferred upon the Senate and the House of Commons the full range of privileges allowed under the Constitution;' 7 1 that is, those held and exercised by the House of Commons of the United Kingdom in 1867 and such privileges, immunities and powers as defined by the ParlianmtoICanada Act, not exceeding those held by the Commons of the United Kingdom at the time of the passage of the Act. "The main body of the privileges of our Parliament," Binnie J. remarked, "are therefore 'legislated privileges,' and according to s. 4 of the Parlianmtof Canada Act must be ascertained by reference to the law and customs of the U.K. House of Commons which are themselves composed of both legislated (including the Bill of Rights of 1689) and inherent privileges."172 The Parliament of Canada, in enacting section 4, had "neither enumer- ated nor described the categories or scope of those privileges except by general incorporation by reference ... ,,'7 "The task of defining such privileges," Binnie J.

166. See supra note 29. 167. ConstitutinAct, 1867, supra note 29. ("The Privileges, Immunities and Powers ... held, enjoyed, and exercised by the Senate and by the House of Commons, and by the Members thereof respectively, dall be sud as are fran 7irne to ir deinod by Acf the Paiianrmtof Canada,"s, 18 [emphasis addedi.) 168. An Act reupcing thestatus and use ofthe afflcial langoagcs oCanada, R.S.C. 1985, c. 31 (4th Supp.), applies, inter alia, to the Senate, the House of Commons and the Library of Parliament by virtue of the definition of "federal institution" in s. 3 thereof; see also, notably, s. 4 ("Proceedings of Parliament") and s. 90: "Nothing in this Act abrogates or derogates from any powers, privileges or immunities of members of the Senate or the House of Commons in restxr oftheirpersalua dFl andstaff . . ." [emphasis added]. 169. S.C. 2006, c. 9. See e.g. s. 21 of the Cmflict dolnterst Act enacted as part of the statute. 170. See e.g. An Act for ihe furtherprmnting DelayN ofJu.tice by rmsm Jvslgeow FParlianrnt,1770 (U.K.), 10 Geo. Ill, c. 50 [T/he ParliarmntarvPislege Act]. 171. Vaid, supra note 4 at para. 35. 172. Ibid. at para. 36. 173. Ibid. at para. 35. 604 OTTAWA LAW REVIEW REVUE DE DROIT D'OTTAWA 39:3 39:3

admitted, was "not straightforward."'7 4 The scope of parliamentary privilege in the 75 United Kingdom itself was "a matter of controversy."

Parliamentary privilege in that country has evolved over time, and continues to evolve within a society, institutions, and constitutional arrangements different from our own .... Nevertheless, the framers of the G2ns'tution Act, 1867 thought it right to use Westminster as the benchmark for parliamentary privilege in Canada, and if the existence and scope of a privilege at Westminster is authoritatively established (either by British or Canadian prece- dent), it ought to be accepted by a Canadian court without ... further inquiry into its necessity. This result contrasts with the situation in the provinces where legislated privilege, without any underpinning similar to s.18 of the Gist'tuion Act, 1867, would likely have to meet the necessity test (Haney, at para. 73). 176

Thus, Canadian courts must first ascertain whether the existence and scope of the claimed privilege has been "authoritatively established" in relation to the Canadian Parliament or to House of Commons at Westminster. 77 In some matters, such as freedom of speech in the House, the answer will usually be evident. 7'There are other 2008 CanLIIDocs 118 claims to privilege, however, that are not as well established. '" "[Wlhen a claim to privilege .. .seek[s] to immunize Parliamentarians from the ordinary legal consequences of the exercise of powers in relation to non-Parliamentarians, and the validity and scope of the privilege in relation to the [United Kingdom] House of Commons ...[are not] authoritatively established," the courts are required to test the claim against necessity. ""t The courts will, Binnie J. added, "give considerable deference to our own Parliament's view of the scope of autonomy it considers necessary to fulfill its functions."'' However, if at the end of the day, as in the case of Vaid, a dispute arose between the House and a stranger to that body, it would be for the courts "to determine if the

174. Ibid. at para. 37. 175. /bid.Writing further on a related point in para. 39, he noted that"[mluch of the U.K. law of privilege remains unwritten" and therefore "retains a good deal of flexibility to meet changing circumstances .... There has been little formal adjudication of the boundaries of U.K. privilege in the British courts, and Canadian courts are no more bound by a unilateral assertion of privilege by the British House of Commons than.. . would be the courts in Britain itself." 176. Ibid.at para. 37. (Justice Binnie added, at para. 38, that whilst s.18 of the GCistitutian Act 1867 stated that the privileges of the Canadian federal Houses should not exceed those of the U.K. House of Commons, "our respective Parliaments are not ... in lock step" and it seemed likely that there might be differences of "parliamentary practices inherent in the Canadian system, or legislated in relation to our own experience," which would be assessed under the necessity test "defined by the exigencies and circumstances of our own Parliament."This hypothesis would be explored "if and when it arises for decision" in a proper case.) 177. Ibid. at para 39. 178. Ibid. 179. Ibid. 180. Ibid. at para. 40. 181. Ibid at paras. 39-40. (Justice Binnie cited with approval the Ontario Court of Appeal in Telczcoe,supra, note 154, wherein MacPherson J.A. stated (at para. 32 of that decision) that the views of the Speakers of the House "are not binding on this court," but "their careful and considered rulings should be accorded substan- tial respect.") PARLIAMENTARY PRIVILEGE, 605 THE CANADIAN CONSTITUTION AND THE COURTS

admitted category of privilege has the scope claimed for it. This adjudication, it must again be emphasized, goes to the eisteoceand scopeof the House's jurisdiction, not to 1 2 the propriety of its enrdsein any particular case."' Parliamentary privilege is determined by the degree of autonomy required by the Houses to perform their legislative and deliberative functions, including the legislative chamber's work "in holding the government to account for the conduct of the country's business." 83 Although "much latitude" was left to each House, a purposive approach to defining privilege in the light of what is necessary to the effective exercise of their functions "implies important limits."" 4 After reviewing some standard works on parliamentary privilege, including those of Joseph Maingot' 15 and Marleau and Montpetit, s6 as well as the report of the United Kingdom's Joint Parliamentary Committee,' 7 Binnie J. held:

In order to sustain a claim of parliamentary privilege, the assembly or member seeking its immunity must show that the sphere of activity for which privilege is claimed is so

closely and directly connected with the fulfilment by the assembly or its members of 2008 CanLIIDocs 118 their functions as a legislative and deliberative body, including the assembly's work in holding the government to account, that outside interference would undermine the level of autonomy required to enable the assembly and its members to do their work with dignity and efficiency. 188

Distinguishing between the scope of a privilege on the one hand, a determination for the courts, and the propriety of its exercise, a matter for the legislative house, "may sometimes be difficult to draw in practice,"' 8 9 but the facts and con- tentions in Vaid provided an illustration. There, the Speaker of the House of Commons had claimed, on behalf of the House, privileged relations with all of its officers and employees. If the claim was warranted, then no court or other body external to the House could inquire into the former Speaker's reasons for the con-

182. Vaid ibid. at para. 40. 183. Ibid. at para. 41. 184. Ibid. at para. 43. (Justice Binnie cited, for instance, the general recognition that privilege attaches to "proceedings in Parliament," but that Sir David Lidderdale, ed., E'ddne My's Ttra se on The Law, J'ivilcge;, ftootrngs and Uage fParliamnt, 19th ed. (London: Butterworths, 1976) at 89 emphasized that not"every- thing that is said or done within the Chamber during the transaction of business forms part of the proceedings in Parliament" [emphasis omittedl. For example, Binnie J. noted that the Queen's Bench Division in R. v. Bunting, [188517 O.R. 524, [18851 O.J. No. 345 (QL) (H.C.J.), "held that a conspiracy to bring about a change in the government by bribing members of the provincial" legislative assembly was not connected with Parliament's proceedings and thus "the court had jurisdiction to try the offence.") 185. Maingot, .eqm note 28, cited in Vaid, ibid. at para. 41. 186. R. Marleau & C. Montpetit, eds., Houseof cn PmiFhxueandPactie(Ottawa: House of Commons, 2002), cited in Vaid, ihid. 187. Parliament of the United Kingdom, Joint Committee on Parliamentary Privilege, Rqxrt and f3)oings of the Ciittee(London: H.M.S.O., 1999), cited in Vaid, ibid. at para. 42. 188. Vaid ibid. at para 46. 189. Ibid. at para. 47. 606 OTTAWA LAW REVIEW REVUE DE DROIT D'OTTAWA 39:3 39:3

structive dismissal of his chauffeur, Mr. Vaid, because these bodies would lack jurisdiction to do so. However, "the courts are required to determine the scaoeof the privilege claimed." In this instance, the question was whether the privilege extended to "all categories of employees," or only those whose work was related to the "legislative and deliberative functions of the House." 19 In Vaid, the Supreme Court rejected the argument that the existence of a general privilege in relation to the management of employees had been established by prior authority, Canadian or British. In the United Kingdom, "the management of some employees would be covered by privilege" but only where a connection was established "between that category of employees and the exercise by the House of its [legislative and deliberative] functions ... including its role in holding the government to account." 9' That privilege would be "considerably narrower" than the one contended for by the House and former Speaker in Vaid. '9 After an extensive review of the jurisprudence and authorities, Binnie J. concluded that "British authority does not establish that the House

of Commons at Westminster is immunized by privilege in the conduct of all labour rela- 2008 CanLIIDocs 118 tions with all employees" regardless of whether those classes of employees had "any connection... with its legislative or deliberative functions....-13 Justice Binnie then proceeded to examine whether the privilege claimed by the House and the former Speaker could be upheld strictly as a matter of principle under the test of necessity. The employees serving the House of Commons had grown from less than 150 permanent and sessional staff in 1867 to more than 2,300 in 2005.194 These included, amongst others, a locksmith, an interior designer, a massage therapist, curators, carpenters, picture framers, traffic constables, kitchen chefs, cooks, dishwashers and catering staff. '9' There was "no doubt," Binnie J. acknowledged, that the House "regards all of its employees as helpful," but the issue was "whether that definition of the scope of the privilege it asserts is too broad."'16 He found that it was:

I have no doubt that privilege attaches to the House's relations with some of its employees, but the appellants have insisted on the broadest possible coverage without leading any evidence to justify such a sweeping immunity, or a lesser immunity, or indeed any evidence of necessity at all. We are required to make a pragmatic assessment but we have been given no evidence on which a privilege of more modest scope could be delineated. 197

190. Ibid. 191. bid. at para. 62. 192. Iid. 193. Hid. at para. 70 [emphasis omitted. 194. Ibid. at para. 72. 195. Ibid. 196. Aid. [emphasis omittedl. 197. Stoddale qTra note 21 at 238, cited in ihid. at para. 75 [emphasis omittedl. Here Binnie J. underlined that the burden of proof lies on those who assert the privilege, and that "the proof must go to the whole . proposition." PARLIAMENTARY PRIVILEGE, 607 THE CANADIAN CONSTITUTION AND THE COURTS

The appellants had failed to demonstrate the broad and inclusive scope of the privilege in question, and thus the respondents were "entitled to have the appeal dis- posed of" in accordance with the "employment and human rights law that Parliament" had enacted in regard to "employees within federal legislative jurisdiction."9 s

VIII. CONCLUSION: THE PLACE OF PRIVILEGE, THE CONSTITUTION AND THE COURTS CLARIFIED

The courts have come a long way from the attitude exhibited in Brass Cosby's Case, wherein the Court of Common Pleas refused to examine the existence and scope of the privilege asserted by the House, and Chief Justice de Grey and his colleagues acquiesced in the view that the law relating to parliamentary privilege was known only to parliamentarians. The Supreme Court of Canada, through its decisions in New Brunsvvick Broadcasting, Hariey and particularly Vaid, has clarified, to an important 2008 CanLIIDocs 118 degree, the status of both inherent and legislated parliamentary privileges as they relate to the federal and provincial houses; the constitutional bases for such privileges; the role of the courts in assessing their existence and scope; as well as the circumstances in which the test of necessity will operate. Nonetheless, as a spate of recent cases and decisions attest, the assertion and exercise of privilege, particularly as it affects "strangers to the House," continues to be a contentious issue. In Gaglianoj'" the Federal Court, perTremblay-Lamer J., decided that the evidence given by a witness before the Public Accounts Committee of the House of Commons could not be introduced for the purposes of cross-examination of the same witness before a public commission of inquiry, the Gomery Commission of 2 0 Inquiry into the Sponsorship Program. 1 In Canada (Royal Canacan A'kintod Poice) v. Canada (AttomeCn eaJ), 20' Tremblay-Lamer J. applied her reasoning in Gagliano(forti- fied by the Supreme Court's reasons in Vaid) in dealing with testimony of RCMP officers before the Public Accounts Committee and an ensuing RCMP investigation into whether there had been a breach of the Force's Code of Conduct. 20 2 In Knqpf v. Canada (Speaker of the Hctise of C ),203 the Federal Court of Appeal was seized with the question of whether a witness before a parliamentary committee had a right to have documents he brought with him circulated to mem-

198. Vaid, ibid.at para. 76. 199. Gagiano,supra note 156, leave to appeal to the Federal Court of Appeal refused, 2006 FCA 86, 268 D.L.R. (4th) 190. 200. Ibid. 201. 2007 FC 564, 158 A.C.WS. (3d) 656. 202. Ibid. at paras. 62-63.The Federal Court granted in part the application pertaining to the Code of Conduct Investigation and dismissed a second application to halt a separate criminal investigation. 203. 2007 FCA 308, 162 A.C.W.S. (3d) 48. 608 OTTAWA LAW REVIEW REVUE DE DROIT D'OTTAWA 39:3 39:3

bers of the committee, or whether the committee could withhold circulation until the documents had been translated into the other official language; a case raising the question of the interaction between parliamentary privilege attaching to the internal proceedings of the committee and the afidal Languages Act, as well as the constitutional guarantee of the use of either English or French in parliamentary debates and 2 11 proceedings. 0. In Dreaver v. Pan/awd the Federal Court of Appeal upheld the preliminary ruling of the Federal Court that the Canadian Human Rights Commission can investigate complaints about a "householder" mailing distributed by a member of the Commons to his constituents, raising again the interaction between parliamen- 2 6 tary privilege and the Canadian Human Rights Act. In Md'chaud v. Bissamette; 1217 the Quebec Court of Appeal upheld the Superior Court's dismissal of a motion for declaratory judgment brought by the appellantYves Michaud, who was seeking an order requiring that the National Assembly of Quebec rule on his petition against a motion the Assembly had passed denouncing his controversial remarks about immigrants and minorities before the Commission des lttats 2008 CanLIIDocs 118 g~n&aux sur la situation et l'avenir de la langue fran~aise au Quebec.2 0 Justice Dutil, writing for the Court of Appeal, maintained the parliamentary privilege of the freedom of speech of the members of the National Assembly, which extended to the motions and resolutions expressing the collective views of the Assembly.2 9 Justice Baudouin, in agreeing with the analysis and conclusions of Dutil J.A., felt compelled to add that "the Law in this case presents a strange paradox."" He stated:

To preserve parliamentary democracy and, hence, the free flow of ideas, the Law at the time of the charters and the predominance of individual rights means that an individual can be condemned for his ideas (good or bad, politically correct or incorrect, it matters little) without appeal and then publicly hung out to dry without having had a chance to defend himself and even without the reasons for his condemnation having been first clearly stated before his judges, the parliamentarians. "Surunjussunm injuria,"as the Roman jurists would have said! 211

204. Ibid. (appeal dismissed). The trial decision may be found at 2006 FC 808. An application for leave to appeal to the Supreme Court of Canada was dismissed on March 20, 2008, per Binnie, LeBel and Deschamps JJ., Kncpfv. Canada (HotuedofCrmns)[20081 C.S.C.R. no 26 (QL). 205. 2007 FCA 386, 162 A.C.WS. (3d) 644. (Appeal dismissed from the bench of the Federal Court of Appeal on December 4, 2007.) Leave to appeal to the Supreme Court of Canada refused, per Binnie, Deschamps and Abella J., Paniw v. Canada (CanadianHuwmn Rights (anss'or) 120081 C.S.C.R. no 25 (QL). 206. Ibid. 207. Supra note 156. 208. Ibid. 209. Iid.at para. 43. 210. Ibid at para. 64, quoting from the administrative translation. Here is the original text of the observations of Baudoin J.A.: <(Je ne peux cependant m'empicher de penser que le Droit est ici devant un 6trange paradoxe. >> 211. Ibid. (< Pour preserver la democratie parlementaire, et done la libre circulation des id&es, le Droit Al'epoque des Chartes et de la predominance des droits individuels permet qu'un individu soit condamn pour ses ides (bonnes ou mauvaises, politiquement correctes ou non, la chose importe peu), et ce, sans appel et qu'il soit ensuite execut6 sur la place publique sans, d'une part, avoir eu la chance de se d~fendre et, d'autre part, sans m~me que les raisons de sa condamnation aient pr6alablement t6 clairement expos~es devant ses juges, les parlementaires. Sumsrnrnjussunmm injuria auraent dit les juristes romains! a) at para. 65). Leave to appeal to S.C.C. dismissed, M~dsaudc Qz xw(AvuNAe natioriale),[20061 C.S.C.R. no 333 (QL). PARLIAMENTARY PRIVILEGE, 609 THE CANADIAN CONSTITUTION AND THE COURTS

Whilst the role of the courts is evidently limited in such circumstances, the phe- nomenon of the lexet cnsueudopa'rirmm will continue to demand public scrutiny, not only as to its existence and reputed scope, but occasionally, as to the appropriateness of its asserted exercise as well. The privileges that attach to the dignity and the efficiency of the federal, provincial and territorial legislative houses and assemblies are a necessary concomitant of our broader parliamentary system of governance under the Constitution of Canada. However, it is imperative to bear in mind that parliamentary privilege, like parliamentary institutions themselves, must operate within-and never trump-the constitutional framework from which those bodies have emerged, and upon which they depend for their lawful authority and powers. In a country respectful of the rule of law, the courts must continue to maintain the supremacy of constitutional norms, and care- fully distinguish, when the circumstances require, between the actions of a legislative house or a committee on the one hand, and the enactments of Parliament or a legislature on the other, the latter alone having statutory force of law under the provisions of 2008 CanLIIDocs 118 the Constitution. It would be, for example, not only unfortunate but dangerous to the integrity and coherency of our constitutional framework to conflate the political actions, motions and resolutions of a house or assembly--however impassioned or well-intentioned those may be-with the legislative acts of Parliament or the provincial legislatures and the legal effects they produce. In the final analysis, parliamentary privilege is a necessary adjunct to the legislative and deliberative functions of the houses, and to the maintenance of the dignity and efficiency of those bodies. Parliamentary privilege is not, nor should it be, a substantive end in itself. Our courts would do well to maintain that attitude in scrutinizing contested claims of privilege where the existence, scope or necessity of the asserted category of privilege is at issue, and where there are competing constitutional principles, rights and interests in the balance.

IX. POST SCRIPTUM

Since this paper was written, two striking developments in the exercise of parliamentary privilege by the House of Commons of Canada have occurred. The first, on November 27, 2007, was the authorization by the House, without debate, of the issuance of a Speaker's Warrant compelling the appearance of Karlheinz Schreiber before the Standing Committee on Access to Information, Privacy and Ethics. The second, on April 10, 2008, was a finding of contempt, also adopted by the Commons without debate, in relation to Barbara George, the Deputy Commissioner of the RCMP, for allegedly providing false and misleading testimony to the Standing Committee on Public Accounts.This is not the place to review the merits of the exercise, by the House of Commons and its committees (which recommended the action taken), of these extraordinary powers for the first time in close to a century. Suffice it to say that these recent events illustrate, with particular acuity, the need to ensure that the exercise of parliamentary privilege by bodies that are inherently political rather than adjudicative in character is tempered by considerations of fundamental constitutional principle, pro- cedural fairness and the necessities of the case. 2008 CanLIIDocs 118