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House of Commons Procedure and Practice

Second Edition, 2009

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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:

*      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 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]

*   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 judgement 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 Canadian Charter of Rights and Freedoms, to exclude strangers from its proceedings, “a stranger” being anyone who is not a Member or an official of the legislature. The Canadian Broadcasting Corporation (CBC) claimed that its reporters had a constitutional right to film the proceedings of the Nova Scotia House of Assembly with their own cameras. The CBC 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 the CBC. 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 much beyond the right of the House to regulate its own proceedings. Since the employment of staff was beyond the extent of the right, the Canadian Human Rights Act could apply. While the House’s right 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 Aboriginals. The Member, Jim Pankiw (Saskatoon–Humbolt), argued before the Canadian Human Rights Tribunal (CHRT) that the comments were protected by his privilege of free speech. 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 thus 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 judgements, the exercise of this privilege was immune from review by the Court.[115]

[94] R.S. 1985, Appendix II, No. 5.

[95] As was noted in New Brunswick Broadcasting Co., “courts may determine if the privilege claimed is necessary to the capacity of the legislature to function, but have no power to review the rightness or wrongness of a particular decision made pursuant to the privilege” (pp. 384‑5). See also Zündel v. Boudria, et al., (1999), 127 O.A.C. 251, par. 16.

[96] Parliament of Canada Act, R.S. 1985, c. P‑1, s. 5. See also Vaid, par. 29.3. Vaid, par. 47 states: “The distinction between defining the scope of a privilege, which is the function of the courts, and judging the appropriateness of its exercise, which is a matter for the legislative assembly, may sometimes be difficult to draw in practice …”. See also par. 53: “The onus lies on the appellants to establish that the category and scope of privilege they claim do not exceed those that at the passing of [the Parliament of Canada] Act [were] held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom … and by the members thereof”.

[97] Debates, May 26, 2003, p. 6415.

[98] New Brunswick Broadcasting Co. and Vaid.

[99] Vaid, par. 40.

[100] Vaid, par. 29.10.

[101] New Brunswick Broadcasting Co.; Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876; and Vaid.

[102] Constitution Act, 1982, R.S. 1985, Appendix II, No. 44, Schedule B.

[103] Vaid, par. 33. See also New Brunswick Broadcasting Co., in particular pp. 319331; Harvey, in particular pp. 26.

[104] Vaid, par. 20 and 47 to 49. Members have objected on occasion to what they considered unfair interference by the judiciary. For example, on February 3, 1998, a Member raised a question of privilege concerning remarks made by Justice Marcel Joyal of the Federal Court. During a court proceeding, Justice Joyal had criticized the behaviour of Members during one Question Period, when Members had cheered and applauded the announcement of the dismissal of the Chairman of the Canadian Labour Relations Board by the Minister of Labour. (Justice Joyal had compared them to the crowds around the guillotine during the French Revolution.) The Chairman had initiated court proceedings to prevent his dismissal, and it was during these proceedings that Justice Joyal had made his comments. In a statement on February 11, 1998, Speaker Parent noted that there is a necessary constitutional divide between the legislative and judicial branches. He also noted that the practice of the House is to treat as unparliamentary and a breach of order any reference to a judge or court which is a personal attack or censure. He went on to state that the House of Commons deserved at least the same respect from the courts. As the Clerk of the House had received correspondence from the Chairman of the Judicial Conduct Committee of the Canadian Judicial Council advising that Justice Joyal’s remarks were being investigated, the Speaker decided to await the outcome of the review before taking further action on the question of privilege (Debates, February 11, 1998, pp. 3737‑8). On April 21, 1998, the Speaker tabled correspondence and documentation from the Judicial Council. The Judicial Conduct Committee had found that Justice Joyal’s comments were inappropriate and outside the sphere of proper judicial expression. It also noted that Justice Joyal had acknowledged publicly the inappropriateness of his remarks. The Committee concluded that the Judge’s conduct did not warrant a formal investigation. Speaker Parent stated that with the tabling of these documents he considered the matter closed (Journals, April 21, 1998, p. 682, Debates, p. 5910). See also Marleau, R., “Relationship Between Parliament and the Courts in Canada: The Joyal Affair,” The Table, Vol. 66, 1998, pp. 15‑21.

[105] [1971] O.R. 418; appeals dismissed [1972] 1 O.R. 444 and [1973] S.C.R. 820.

[106] Maingot, 2nd ed., pp. 29‑31. Speakers have always urged Members not to abuse their privilege of freedom of speech in light of the damage that can result through the wide dissemination of their remarks through the official published reports of the House and the television broadcasts of House proceedings. See the rulings of Speaker Fraser, Debates, December 3, 1991, p. 5681; and of Speaker Parent, Debates, September 30, 1994, p. 6371. See also Debates, April 1, 1998, p. 5653; May 11, 2005, pp. 5933‑4.

[107] Maingot, 2nd ed., p. 306. As Maingot notes, the adoption of the Canadian Charter of Rights and Freedoms “ushered in a flood of constitutional litigation, gave Canadian courts a greater degree of superintendence over government, and dramatically changed the form and forum of politics. It was thus inevitable that the Canadian legislative assemblies and Houses of Parliament would become implicated in the Charter” (2nd ed., p. 303).

[108] New Brunswick Broadcasting Co. See also Davidson, D., “Parliamentary Privilege and Freedom of the Press: A Comment on Donahoe v. Canadian Broadcasting Corporation (1993)”, Canadian Parliamentary Review, Vol. 16, No. 2, Summer 1993, pp. 10‑2, for a summary of the Supreme Court decision.

[109] Vaid, in particular, par. 29, 37 to 40, 46 to 49, 64, 76 and 79 to 82.

[110] Dreaver et al. v. Pankiw, 2005 CHRT 28.

[111] Pankiw v. Canada (Human Rights Commission), 2006 FC 1544, in particular par. 113 and 114; appeal dismissed 2007 FCA 386; application for leave to appeal to the Supreme Court dismissed (SCC file 32501).

[112] Zündel v. Liberal Party of Canada et al., Reasons for Decision, Ontario Court (General Division), Court File No. 98‑CV‑7845, January 22, 1999. Mr. Zündel is a noted Holocaust denier. Justice Chadwick stated in the decision: “Although there is no reference to the reason behind the decision, it is obvious it was to preserve the dignity and integrity of Parliament” (p. 15).

[113] Gauthier v. Canada (Speaker of House of Commons), (1994), 25 C.R.R. (2d) 286; Gauthier v. Canada (Speaker of the House of Commons), 2004 FCA 27; Gauthier v. Canada (House of Commons), 2006 FC 596.

[114] The committee had authorized the clerk of the committee to distribute documents from witnesses only if they existed in both official languages.

[115] Knopf v. Canada (House of Commons), 2006 FC 808, appeal dismissed 2007 FCA 308; leave to appeal to the Supreme Court dismissed March 20, 2008 (SCC file 32416).

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