Parliamentary privilege, the Canadian Constitution and the courts.

• Author: Newman, Warren J.

The privileges and immunities of the Houses of Parliament are part of the law of the Constitution. Courts 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 Canadian Charter of Rights and Freedoms. This paper explores that relationship and clarifies the status of parliamentary privilege under the Constitution, having regard to the constitutional text, the principles underlying or informing the interpretation of the constitutional provisions, including the principle of the separation of powers, and the leading cases--notably the decisions of the Supreme Court in New Brunswick Broadcasting and Vaid. The 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. The paper concludes that parliamentary privilege is not, nor should it be, a substantive end in itself, and that the 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.

Les privileges et immunites parlementaires font partie du droit constitutionnel. Les tribunaux judiciaires ont tente de preciser et de mieux encadrer le role que joue le privilege parlementaire au sein du systeme constitutionnel, notamment en ce qui concerne le lien avec d'autres elements de la Constitution, y compris les dispositions de la Charte canadienne des droits a libertes. Dans cet essai, nous examinerons ces rapports et nous jetterons un eclairage nouveau sur le statut du privilege parlementaire au regard de la Constitution, en tenant compte du texte de celle-ci, les principes sons-jacents qui appuient l'interpretation du texte, dont la doctrine de la separation des pouvoirs--ainsi que les arrets principaux, dont les decisions de la Cour supreme dans les affaires New Brunswick Broadcasting et Vaid. En guise de conclusion, nous soulignons que le privilege partementaire n'est pas--et ne devraitpas etre--une fin en soi, et que les tribunaux devraient adopter cette perspective en examinant toute contestation d'un pretendu privilege lorsque l'existence, la portee ou la necessite de celui-ci est en cause, et lorsqu'il y a des principes, droits et interets constitutionnels qui sont en concurrence.

Table of Contents I. INTRODUCTION II. PROLOGUE: THE PRINTER, THE LORD MAYOR, THE SPEAKER AND THE CHIEF JUSTICE: BRASS CROSBY'S CASE III. THE CONSTITUTIONAL BASIS FOR PARLIAMENTARY PRIVILEGE TODAY IN CANADA IV. NEW BRUNSWICK BROADCASTING AND THE STATUS OF INHERENT PRIVILEGES V. CONCLUSIONS WITH RESPECT TO NEW BRUNSWICK BROADCASTING VI. HARVEY: THE JUDICIAL FAULT LINES PERSIST VII. VAID: A UNANIMOUS PERSPECTIVE ON LEGISLATED PRIVILEGES VIII. CONCLUSION: THE PLACE OF PRIVILEGE, THE CONSTITUTION AND THE COURTS CLARIFIED IX. POST SCRIPTUM I. INTRODUCTION

[T]he 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. Woodworth (1878) (1)

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 Canadian Charter of Rights and Freedoms (2). 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 Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly) (3) and Canada (House of Commons) v. Vaid (4).

2. 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 Middlesex Journal and the Gazetteer 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 Proceedings of the Lower Room of the Robin Hood Society and Samuel Johnson's Debates of the Senate of Lilliput, (7) but few had dared breach the stricture against verbatim reporting. (8) In 1771, one Miller, the printer of the Evening Past, 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 warrant to arrest Miller, who was taken into custody in the City of London. The printer 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 particulars, 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. (9)

   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 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. "[I]t 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 consuetudo parlementi--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." (12) The privileges of the House of Commons were not "so transcendent and mystical, as to exclude all inquiry." (13)

   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." (14) 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;" (15)

   [T]he 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.... [W]e 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, stated that the lex and consuetudo parlementi "is known to Parliament-men only" and they were the sole judges of their own privileges. (17) Justice Blackstone affirmed that "[t]he House of Commons is a Supreme Court" and the only judge of its own proceedings. (18) 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. (19) 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 legacy of his case. (20) The opinion of Chief Justice de Grey was repudiated some sixty years later in the leading case of Stockdale v. Hansard (21). 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 Crosby'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 are, Lord Denman observed that the argument was circular: "The courts cannot be entrusted...