Traffic problems at the intersection of parliamentary procedure and constitutional law.

• Author: Keyes, John Mark

This article addresses the potential for conflict between courts and parliamentary bodies (including legislatures) in making determinations as to the validity of legislation on the basis of parliamentary procedure. The decision of the Supreme Court of Canada in Re Eurig Estate serves as the catalyst for the discussion. It invalidated regulations requiting the payment of probate fees in the courts of Ontario on the basis of constitutional provisions governing the enactment of financial legislation. The article examines how Eurig and the Supreme Court's subsequent decision in Ontario English Catholic Teachers' Association v. Ontario (A.G.) impinge on the traditional mutual deference that judicial and parliamentary bodies accord each other, particularly in terms of the procedures for enacting financial legislation. The article evaluates how the courts have considered these matters, both before and after Eurig, as well as how procedures for financial legislation have been considered in parliamentary bodies in the form of Speaker's rulings in the House of Commons and the Senate. The procedures relating to the delegation of taxation powers, and what constitutes a tax requiting the observance of these procedures by parliamentary and judicial authorities, are also reviewed. In concluding, the authors call for adherence to traditional notions of procedural autonomy within the separate spheres of activity of the judiciary and Parliament.

Cet article etudie les conflits potentiels entre les tribunaux et les agences parlementaires (y compris les corps legislatifs) en ce qui concerne la determination de la validite de la legislation en fonction de la procedure parlementaire. La discussion s'impose surtout depuis la decision de la Cour supreme du Canada dans l'arret Re Succession Eurig, ou a des reglements exigeant le paiement de frais pour l'obtention de lettres d'homologation devant les tribunaux ontariens ont ete invalides suite a l'interpretation de regles constitutionnelles sur l'adoption de lois en matiere de creation de taxes. Cet article etudie l'impact de la decision et la decision uletrieure de la Cour dans l'affaire Ontario English Catholic Teachers' Association c. Ontario (P.G.) sur la deference que s'accordaient mutuellement le pouvoir judiciaire et le Parlement, notamment au niveau des procedures pour adopter des lois en matiere de finances. L'article examine l'approche des tribunaux par rapport a cette question, avant et apres Eurig, ainsi que la facon dont les procedures d'adoption de lois en matiere de creation de taxes ont ete abordees par les agences parlementaires sous la forme de decisions de la presidence a la Chambre des communes et au Senat. Les auteurs abordent egalement la question des procedures lites a la delegation des pouvoirs de taxation et des types de taxes qui exigent le respect de ces procedures par les autorites parlementaires et judiciaires. En concluant, les auteurs font appel au respect des notions traditionnelles d'antonomie procedurale dans les secteurs d'activite des pouvoirs judiciaire et legislatif.

Introduction I. Parliament and the Courts II. Procedures for Financial Legislation III. Judicial Consideration of Procedures for Financial Legislation A. Concept of a Tax B. Delegation of Taxation Powers C. The Wake of Eurig IV. Parliamentary Consideration of Procedures for Financial Legislation A. Concept of a Tax B. Delegation of Taxation Powers C. A Cautionary Tale: Bill S-13 (Tobacco Industry Responsibility Act) Conclusion Introduction

In Re Eurig Estate (1) the Supreme Court of Canada invalidated regulations requiring the payment of probate fees in the courts of Ontario. The decision has generated a flurry of commentary and discussion in the context of estate planning. (2) Many have also recognized the potential impact of the decision on the operation of a wide range of other revenue-generating provisions in delegated legislation. Its effect on the relationship between the courts and primary legislative bodies (Parliament and the provincial legislatures), however, remains largely undiscussed. This aspect of the decision turns on provisions in the Constitution Act, 1867. (3) Section 53 governs the origination of taxation and spending bills, while section 54 requires a royal recommendation for spending bills. By invoking section 53 as a basis for invalidating the regulations, the majority in Eurig has moved these arcane provisions out of the precincts of Parliament and into the courts and chambers of judges. The purpose of this article is to review this development and speculate on where it will lead. The article begins by considering the relationship between parliamentary bodies and the courts in matters of legislative procedure. It reviews the recent judicial consideration of procedures for financial legislation, in particular Eurig and the Court's subsequent decision in Ontario English Catholic Teachers' Association v. Ontario (A.G.). (4) The article then examines how these procedures are viewed in Parliament, notably by the Speakers who rule on them. Finally, the article notes the differences between the approaches taken by the courts and the Speakers, and concludes with a plea for judicial deference to parliamentary bodies on these matters.

1. Parliament and the Courts

   Judicial and parliamentary bodies have traditionally steered clear of each other when it comes to the way they operate (proceedings and procedure), as opposed to the end products of their operation (laws and decisions). Although legislatures have reversed court decisions and courts have invalidated legislation, they have generally respected each other's fight to function as each sees fit. In Parliament the subjudice rule prevents debate on matters that are before the courts. (5) By the same token, the courts have recognized the fight of legislative bodies to control their own proceedings. (6) For example, in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), (7) McLachlin J. said:

   Our democratic government consists of several branches: the Crown, as represented by the Governor General and the provincial counterparts of that office; the legislative body; the executive; and the courts. It is fundamental to the working of government as a whole that all these parts play their proper role. It is equally fundamental that no one of them overstep its bounds, that each show proper deference for the legitimate sphere of activity of the other. (8) Section 9 of the Bill of Rights, 1689 also recognizes that Parliament and the courts are to operate in separate spheres, stating "[t]hat the freedom of speech and debates or proceedings in parliament, ought not to be impeached or questioned in any court or place out of parliament." (9) The Supreme Court of Canada in the Reference Re Resolution to Amend the Constitution (10) has accepted that this provision is "undoubtedly in force as part of the law of Canada." (11)

   Views about the appropriate spheres of courts and parliament were greatly influenced by the political events and constitutional changes of the seventeenth and eighteenth centuries. The law of Parliament was seen as a separate law, distinct from the common law. For that reason it was the common belief that "judges ought not to give any opinion of a matter of Parliament, because it is not to be decided by the common laws but secundum legem et consuetudinem parliamenti [according to the laws and customs of parliament]." (12)

   The concept of parliamentary privilege also demonstrates the demarcation between the courts and Parliament. Through parliamentary privilege, the legislature maintains its formal internal autonomy from external forces such as the public, the executive, and the courts. The privileges of Parliament include those rights necessary for free action within its jurisdiction and the necessary authority to enforce those rights if challenged. Among the most important privileges of the members of a legislature is the enjoyment of freedom of speech in debate. Although originally intended as protection against the power of the Crown, it was later extended to protect members against attack from all sources. This freedom of speech may not be impeached or questioned in the courts, and statements made within the precincts of Parliament cannot be the subject of an action for defamation or contempt. (13) Members are liable to censure and punishment only by the House itself for a breach of its rules.

   If the judicial and parliamentary spheres are separate in many respects, there are also several points at which they appear to overlap. For example, there may be an overlap between Crown privilege, which protects the confidentiality of cabinet confidences, and parliamentary privilege, which includes the right to obtain documents and require the attendance of witnesses. As Professor de Smith has said, "[T]here may be at any given moment two doctrines of privilege, the one held by the courts, the other by either House ... and [there is] no way of resolving the real point of issue should conflict arise." (14) With the Supreme Court's decision in Eurig there now appears to be an additional area of overlap, relating to parliamentary procedures for the enactment of financial legislation.

2. Procedures for Financial Legislation

   The procedures for enacting financial legislation have been codified to some extent in sections 53 and 54 of the Constitution Act, 1867. (15) These provisions apply not only to the federal Parliament, but also to the provincial legislative assemblies by virtue of section 90 of the same act. They are the culmination of centuries of struggle in England between the House of Commons and the House of Lords and between the Crown and Parliament. (16) The results of this struggle are now an integral part of Canadian parliamentary culture. As Bourinot has written, "All the checks and guards which the wisdom of English parliamentarians has imposed in the course of centuries...