The Constitutional Limitations of Privilege
The collective privileges of the House of Commons and the individual privileges of its Members are not unlimited. They are constrained by the limits put on them by the Constitution. The first limit is found in section 18 of the Constitution Act, 1867, which provides that Parliament may not confer on itself any greater privileges than those enjoyed at the time by the House of Commons of the United Kingdom. The second limit flows from the preamble, which provides for a Westminster parliamentary system, including privileges based on necessity.94 It is the prerogative of the House to determine how it will exercise these privileges and if it wants to insist on them or not.95 Given that the privileges enjoyed by Parliament are part of the general and public law of Canada, the courts must judicially take notice of, apply and defend these privileges as they would any branch of law.96
It was thus inevitable that the courts would become involved in determining questions related to parliamentary privilege. Since the effect of the assertion of privilege could result in certain functions being shielded from review by the courts, the courts had to balance their role to apply the law with the constitutional freedom of Parliament to act independently and without outside interference.
In a 2003 ruling, Speaker Milliken described the relationship between Parliament and the courts with respect to parliamentary privilege as follows:
We have parliamentary privilege to ensure that the other branches of government, the executive and the judicial, respect the independence of the legislative branch of government, which is this House and the other place. This independence cannot be sustained if either of the other branches is able to define or reduce these privileges. … The privileges of this House and its members are not unlimited, but they are nonetheless well established as a matter of parliamentary law and practice in Canada today, and must be respected by the courts. Judges must look to Parliament for precedents on privilege, not to rulings of their fellow judges since it is in Parliament where privilege is defined and claimed.97
In two cases, one in 1993 and one in 2005, the Supreme Court of Canada established the legal and constitutional framework for considering matters of parliamentary privilege. Since parliamentary privileges are rooted in the Constitution, courts may determine the existence and scope of a claimed privilege. However, recognizing that a finding of the existence of a privilege provides immunity from judicial oversight, the courts may not look at the exercise of any privilege or at any matter that falls within privilege. Once the courts have determined the existence and scope of the privilege, their role ceases. Matters that fall within parliamentary privilege are for the House alone to decide.98
The primary question asked by the courts is whether the claimed privilege is necessary for the House of Commons and its Members to carry out their parliamentary functions of deliberating, legislating and holding the government to account, without interference from the executive or the courts.99 In determining its existence and scope, the courts will first establish whether it can be demonstrated that the claimed privilege existed in Canada or the United Kingdom at the time of Confederation. If so, that ends the inquiry. If not, the courts may still conclude that the claimed privilege exists if it can be demonstrated by the House that such a privilege is necessary for Members to perform their parliamentary functions.
The Supreme Court has indicated that the following categories of privilege have been recognized to exist:
- freedom of speech;
- control by the Houses of Parliament over debates or proceedings in Parliament, including day-to-day procedure in the House of Commons;
- the power to exclude strangers from proceedings;
- disciplinary authority over Members;
- disciplinary authority over non Members who interfere with the discharge of parliamentary duties; and
- immunity of Members from being subpoenaed to attend court during a parliamentary session.100
The determination of the existence of other claimed privileges and the exact scope of all privileges will be determined by the courts on a case-by-case basis.
One question that has been raised and dealt with by the Supreme Court on three occasions101 is the relationship of parliamentary privilege to other parts of the Constitution, particularly the Canadian Charter of Rights and Freedoms.102 Since parliamentary privilege and Charter rights are part of the Constitution, each has equal value. The Court has consistently held that the Charter does not override parliamentary privilege.103
While the courts play a role in determining if a privilege exists and is necessary for the legislative and deliberative functions of the House, the courts or other institutions cannot interfere with the exercise of the privilege or otherwise direct the affairs of the Commons.104
Privilege Challenged in the Courts
Before the adoption of the Charter, the question as to whether and how the constitutional rights of individuals might affect the exercise of constitutional powers by various institutions was not often raised before the courts. There was only one major judgment that challenged Parliament’s privilege of freedom of speech prior to 1982. In 1971, an action was brought against the Prime Minister and the Minister of Energy, Mines and Resources for announcements made in the House of Commons, a case known as Roman Corporation Limited v Hudson’s Bay Oil and Gas Co.105 In its ruling, the Ontario High Court disavowed any jurisdiction over statements made in Parliament based on Article 9 of the English Bill of Rights, 1689.106
In 1993, the Supreme Court of Canada in New Brunswick Broadcasting Co. v Nova Scotia (Speaker of the House of Assembly) addressed the issue of whether and how the Charter applies to provincial legislative assemblies and their proceedings, which had a direct impact on the powers, privileges and immunities of the House of Commons.107 This case involved the right of the Nova Scotia House of Assembly, in light of the Charter, to exclude strangers from its proceedings, “a stranger” being anyone who is not a Member or an official of the legislature. New Brunswick Broadcasting Corporation (NB Broadcasting) claimed that its reporters had a constitutional right to film the proceedings of the Nova Scotia House of Assembly with their own cameras. NB Broadcasting applied to the Nova Scotia Supreme Court for an order allowing it to film the proceedings based on section 2(b) of the Charter which guarantees freedom of expression, including freedom of the press. The Trial Division and the Court of Appeal both ruled in support of NB Broadcasting. In overturning the Court of Appeal, the Supreme Court of Canada upheld the absolute authority of the Houses of Parliament and of the legislative assemblies to control their proceedings and reasserted the independence of the different branches of government. It was determined that the right to exclude “strangers” from the House, and thus to prohibit the use of television cameras, was necessary to the functioning of the Assembly and hence a privilege, and therefore the courts could not interfere.108
A landmark decision of the Supreme Court in 2005 clarified the scope of the House’s right to regulate its internal affairs and the applicability of statute law in that regard. The case involved an employee of the House of Commons who had filed a complaint with the Canadian Human Rights Commission following his dismissal. The House argued that the Canadian Human Rights Act did not apply since the employee’s dismissal was a matter protected under the House’s right to regulate its internal affairs, including the hiring, management and dismissal of all staff. The Supreme Court ruled that the concept of internal affairs did not extend to the management of all employees of the House Administration. Since the employment matter in issue was beyond the extent of the right, the Canadian Human Rights Act could apply. While the House’s claimed privilege to regulate its affairs was reaffirmed, the ruling clarified that the Parliamentary Precinct, as a place, is not a statute-free zone and that in matters outside of privileged activities Parliament is not above the law.109
Other cases have provided the courts with an opportunity to reaffirm privilege in certain areas and to clarify its scope in others. These court decisions have also helped to establish further the bounds between the rights of Parliament and the responsibilities of the courts.
In 2003, a complaint was filed with the Canadian Human Rights Commission regarding a Member’s householder which contained discriminatory comments about Indigenous Peoples. The Member, Jim Pankiw (Saskatoon–Humbolt), argued before the Canadian Human Rights Tribunal (CHRT) that the comments were protected by parliamentary privilege, in that communicating with constituents directly related to his duties as a Member of Parliament. The CHRT, however, ruled that the Canadian Human Rights Act did not exclude Members, and particularly their householders, from the application of the Act since householders were not part of a parliamentary proceeding.110 The decision was appealed to the Federal Court which upheld the decision of the CHRT in 2006. The Federal Court specifically determined that communications to constituents are not a proceeding in Parliament nor do they constitute parliamentary papers, and found that they are not protected by parliamentary privilege.111
In 1998, a private citizen brought an action against the political parties represented in the House of Commons, as well as against a number of Members, claiming that his right to freedom of speech had been violated when the House adopted a motion preventing him from holding a press conference in the Press Gallery’s conference room in the Centre Block of the Parliament Buildings. On January 22, 1999, the Ontario Court (General Division) dismissed the action, finding, among other reasons, that the House of Commons was only exercising its parliamentary privilege in restricting access to the precinct of the House of Commons and that it was not prohibiting the defendant from speaking.112
Similarly, the courts have held that they cannot review the refusal to allow a person denied membership in the Press Gallery access to certain facilities within the precinct reserved for the press since the question of access to the Parliamentary Precinct falls within each House’s parliamentary privileges, specifically the right to exclude strangers.113
In 2006, the Federal Court dismissed an action brought against the House of Commons by a witness who had appeared before one of its committees. The witness claimed that his language rights under the Official Languages Act, which includes the House of Commons as an institution to which that Act applies, had been violated when the committee refused to distribute his English-only submission before it was translated.114 Noting that the witness’s right to speak in the official language of his choice before the committee had been respected, the Federal Court determined that his language rights had not been violated. Moreover, the Court affirmed that the House’s right to control its own internal proceedings extended to internal committee procedures. The Court concluded that, since the House’s right to regulate its internal proceedings had been clearly established in other court judgments, the exercise of this privilege was immune from review by the Court.115