Parliamentary privilege, rule of law and the Charter after the Vaid case.

• Author: Fox-Decent, Evan

Parliamentary privilege immunises certain activities of legislative bodies and their members from the ordinary law and judicial scrutiny. It seems to place these activities beyond both the ideals and the institutional framework of the rule of law, with potentially serious consequences such as a victim of discrimination having no recourse if the discrimination arose from an action covered by privilege. This paper looks at a recent case and argues that the rule of law and parliamentary privilege, properly understood, support rather than oppose one another. Specifically, legislative actors are entitled to interpret constitutional norms, at the moment they seek to assert privilege. It argues that judges are not the exclusive guardians of the rule of law, and that legislative offices such as the Speaker of the House have a legitimate role to play in upholding it. The author concludes that there is, however, a need for a rationale that confirms the legitimacy of the House's authority to settle disputes between its members within the realm of privilege, while leaving the Court with a principled basis to intervene when the facts so warrant.

Satnam Vaid worked as a chauffeur to three successive Speakers of the House of Commons between 1984 and 1995. He was terminated in January 1995, but successfully grieved the termination pursuant to the Parliamentary Employees Staff Relations Act (PESRA) and was reinstated in August of that same year. Upon his return, Mr. Vaid was told that his position had been designated "bilingual imperative." Lacking French, Mr. Vaid was sent for French language training. In April 1997, Mr. Vaid advised the Speaker that he wished to resume his former duties, but was advised by the Speaker's office that due to a re-organisation his position would become surplus effective May 29, 1997.

Mr. Vaid filed two complaints with the Canadian Human Rights Commission in July 1997, alleging separately that the Speaker and the House of Commons had discriminated against him on the basis of race, colour and ethnic or national origin. He also alleged workplace harassment.

The Speaker and the House challenged the jurisdiction of the Canadian Human Rights Tribunal ("CHRT") on grounds of parliamentary privilege. A majority of the CHRT ruled in Mr. Vaid's favour, and the Speaker and the House sought judicial review. The Federal Court-Trial Division refused their application, and this refusal was subsequently upheld by a unanimous Federal Court of Appeal. The Supreme Court heard an appeal by the Speaker and the House, and unanimously overturned the lower courts. Writing for the full Court, Justice Binnie found that the CHRA did apply to employees of the House, that the appellants had failed to establish the privilege they asserted, but that on the facts of this case the proper forum for the dispute was the regime established by PESRA rather than the CHRT.

Strictly speaking, the Court's extensive reasons concerning privilege are obiter dicta because the Court did not uphold the asserted privilege and therefore its ultimate decision was not based on a successful plea of privilege. Nonetheless, 56 of the 80 paragraphs under the heading "Analysis" deal explicitly with the immunising doctrine, and they essentially reaffirm and elaborate upon the majority judgments in the prior leading case, New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly).

While I will argue that the analytical framework courts should use to test a claim of privilege is still based on the majority judgments in New Brunswick Broadcasting, and differs slightly from the framework proposed in Vaid, the Court's unanimity in Vaid suggests that generally this more recent case is now the leading Canadian authority on parliamentary privilege.

Justice Binnie spent considerable time discussing the constitutional foundation of privilege. The principle has its roots in the preamble of the Constitution Act, 1867. The preamble calls for "a Constitution similar in principle to that of the United Kingdom." In addition, s. 18 of the Constitution Act, 1867 (as amended in 1875) provides:

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 any Act of the Parliament of Canada defining such privileges, immunities, and powers shall not confer any privileges, immunities, or powers exceeding those at the passing of such Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the members thereof. Section 4 of the Parliament of Canada Act defines the relevant privileges, immunities and powers as those "(a) ... held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom and by the members thereof" and "(b) ... as are defined by Act of the Parliament of Canada, not exceeding those.., held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom and by the members thereof."

The legal basis for federal parliamentary privilege, therefore, has constitutional and statutory dimensions, but its specific content must be derived from (and is limited by) the privileges of the U.K. Commons. Justice Binnie interprets the relevant passage from the preamble of the Constitution Act, 1867 to imply a "fundamental constitutional separation of powers" in which "each of the branches of the State is vouchsafed a measure of autonomy from the others." He finds that parliamentary privilege is part of the Constitution, as a necessary incident of the separation of powers, and therefore the Charter cannot prevail over privilege because "parliamentary privilege enjoys the same weight and status as the Charter itself."

In New Brunswick Broadcasting the Court had upheld the authority of a provincial legislature to invoke parliamentary privilege to prevent the media from filming and televising debates from the press gallery. The freedom of the press guaranteed by s. 2(b) of the Charter could not trump the Speaker's privileged order to exclude "strangers" from the legislative assembly. However, the Constitution Act, 1867 does not contain a provision similar to s. 18 that supplies to provincial legislatures an explicit basis for privilege. Thus, the Court in New Brunswick Broadcasting had to rely on privileges "inherent" to the creation and function of a provincial legislature which, due to the preamble of the Constitution Act, 1867, must be similar in principle to the U.K. Parliament. In Vaid the Court confirmed that "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)." Therefore, even if privilege is prescribed by legislation, such legislation is not the source of the constitutional status that privilege enjoys. This status flows from the constitutional purpose of legislative bodies--from their deliberative and law-making role--and from the autonomy such bodies are deemed to require in order to ensure the integrity and effectiveness of the separation of powers. Consequently, the Court held that the Charter cannot prevail over parliamentary privilege even if privilege is grounded in ordinary legislation such as s. 4 of the Parliament of Canada Act.

The Rationale and Test for Parliamentary Privilege

Justice Binnie begins his analysis in Vaid with praise for the reluctance of Parliament and the courts to intervene in the other's domain:

It is a wise principle that the courts and Parliament strive to respect each other's role in the conduct of public affairs. Parliament, for its part, refrains from commenting on matters before the courts under the sub judice rule. The courts, for their part, are careful not to interfere with the workings of Parliament. He reaffirms the "wise principle" a few paragraphs later, and says that in "resolving conflicts over the scope of an asserted privilege it is important that both Parliament and the courts respect 'the legitimate sphere of the other.'" Curial respect for the legitimate sphere of Parliament manifests itself through respect for parliamentary privilege, which itself "is defined by the degree of autonomy necessary to perform Parliament's constitutional function." However, "legislative bodies ... do not constitute enclaves shielded from the ordinary law of the land," and so the party who seeks to rely on privilege bears the onus of establishing its existence and scope.

The Court held that the existence and scope of an asserted privilege is determined through the application of a two-step test. The first step is to establish whether "the existence and scope of the claimed privilege have been authoritatively established in relation to our own Parliament or to the House of Commons at Westminster." Once the existence and scope of a category is established, "Parliament is the judge of the occasion and manner of its exercise and such exercise is not reviewable by the courts." Established categories of privilege include freedom of speech, (1) control by the Houses of Parliament over "debates and proceedings in Parliament" as guaranteed by the U.K. Bill of Rights of 1689 (including day-to-day procedure in the House), (2) the power to exclude strangers (i.e., the public) from proceedings, (3) and disciplinary authority over members and non-members who interfere with the discharge of parliamentary duties. (4)

If the existence and scope of the asserted privilege has not been authoritatively established, the second step of the test requires the assembly or member seeking immunity to 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...