The Vaid case and the protection of parliamentary employees against human rights discrimination.

• Author: Joyal, Serge
• Position: Towards a Theory of Parliamentary Privilege in Canadian Public Law

The law of Parliament in Canada with respect to privilege is now substantially clearer due to a unanimous decision of the Supreme Court issued on May 20th, 2005. In this landmark decision, entitled House of Commons and the Honourable Gilbert Parent v. Satnam Vaid and the Canadian Human Rights Commission (Vaid) the Court established criteria to clearly evaluate the validity of a claim of privilege and presented an analysis that framed the use of privilege in a contemporary setting.

**********

The specific issue before the Supreme Court involved the broad nature and scope of privilege over internal affaires claimed by the House of Commons. In a decision written by Mr. Justice Binnie, the position taken by the Commons was rejected and it was affirmed that the Canadian Human Rights Act (CHRA), like all statute law, does apply to parliament. (1) However, in this case the Court agreed that the employee could resolve his grievance through the Parliamentary Employment and Staff Relations Act, 1985 (PESRA).

Aside from the importance of the decision itself, there are several features about the case that make it quite remarkable. Contrary to all precedent, the Attorney General intervened against the House of Commons to assert the constitutional importance of the CHRA. Equally without precedent, two Senators took the step of intervening to argue for a narrower understanding of privilege. Finally, the Court relied on a British Parliamentary report for its understanding of how privilege should be understood and applied. It also used the same report to make a critical assessment of a British court case which the House of Commons had relied upon in making its arguments.

As already indicated, the Court determined that the former chauffeur of the Speaker (Mr. Vaid) could use the Parliamentary Employment and Staff Relations Act, 1985 to review his complaint of constructive dismissal on the basis of discrimination. In reaching this conclusion, the Court inadvertently created a situation of unequal protection of employees of Parliament that needs to be redressed.

Why is Privilege Necessary?

The Law of Parliament is obscure, convoluted, difficult to tackle, and sometimes buried in historical precedents, conventions and traditions that are not easy to decipher. Privileges, or in modern parlance the Rights of Parliament, are little understood or appreciated by the average MP or Senator.

Even the mere word "privilege" in the contemporary context of democracy often leads to the impression that it is entrenched in a society of another era. It is therefore not particularly marketable in today's populist climate where the use of the word arouses suspicion. Yet without these special rights, parliament could not function effectively because it could not conduct its business as freely and as openly as is needed to fulfill its function. Hence it is easy to understand why MP's and Senators need to possess privileges and rights; they are the immunities which are essential to the performance of their duties in the House or Senate Chamber. It may seem obvious, but it is in fact essential to the efficient and dignified functioning of Parliament to be shielded from Court intervention.

It is worth noting that in the last fifteen years there have been more decisions made by the courts on the issue of alleged privileges than ever before (or at least since Confederation in 1867), whether at the federal, provincial or territorial level (2). This trend, concurrent with the culture of rights that now permeates Canadian society, is a healthy phenomenon but carries challenges for every Canadian legislature.

The decision of the Supreme Court in Vaid is the latest case in this effervescent period of judicial activity on parliamentary privilege. It provoked a timely reflection on the sum of all of the recent decisions and what conclusive principles should be derived from that legal heritage.

The Inaction of Parliament

Notwithstanding the importance of the subject, no MP saw fit to raise this issue in the House of Commons. (3) The House did not ask the Senate to join in support of its claim of privilege on the management of all employees of parliament, even though, according to the Constitution Act, 1867, both Houses share the same privileges.

The Senate itself did not intervene at any level in those proceedings. An explanation for the inaction is that both sides in the Chamber could not agree on a rationale for the arguments, despite the fact that the Senate Standing Committee on Rules, Procedure and the Rights of Parliament held eight meetings and heard at least ten expert witnesses. (4)

All excuses aside, how can one deny human rights protection to approximately 5000 employees of Parliament in a post-Charter Canadian society? (5) It offends any sense of fairness that in joining the staff on the Hill, basic human rights protections are forfeited. Ultimately, beyond the legal arguments lies first and foremost the concept of human dignity.

This strongly held belief motivated two...