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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, interpret 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:
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 occasions[101] 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]
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