The Judicialisation of Parliamentary Privilege in Canada: A Cautionary Tale

Abstract

Over the past few decades, Canadian courts have exerted strong influence over the meaning and operation of parliamentary privileges. Starting with a television producer’s Charter rights claim to access a provincial legislature’s public gallery and followed by an employment law claim made by the chauffeur to the Speaker of the House of Commons, the Supreme Court of Canada has articulated an approach under which judges closely scrutinise privileges invoked by legislatures when defending themselves against litigated claims. By applying the doctrine of necessity, Canadian courts make authoritative rulings on what counts as a valid legislative function and the processes and activities needed to fulfil those functions. Canadian courts also require the scope of parliamentary privileges to be pleaded in narrow terms that correspond to the details of a plaintiff’s claim, which has resulted in a hollowed-out conception of privilege over time. In scrutinising the necessity and scope of privilege, Canadian courts have chipped away at the separation of powers. Further, the Canadian approach unjustifiably prioritises the judicial vindication of private rights over the institutional needs of the legislature. Courts in other jurisdictions should reject the Canadian approach and avoid scrutinising the propriety of the exercise of privilege through a necessity test. Instead, courts should engage in a more limited jurisdictional test to confirm the availability of a relevant category of parliamentary privilege in law or historical practice. Judicialising parliamentary privileges weakens the autonomy and vitality of legislative institutions, with the Canadian approach serving as a cautionary tale. Ultimately, the legislature is accountable to the electorate for the exercise of its privileges. To promote fairness and reduce the risk of court interference, parliaments should strengthen the accountability and transparency associated with the exercise of their privileges, including by developing guidelines for their appropriate use.

1. Introduction

In the Westminster tradition, ‘parliamentary privilege’ refers to the rights, powers and protections that belong to each House of Parliament to ensure its effective functioning as a legislative assembly.1 The most well-known privilege is free speech, which facilitates robust debate by shielding legislators from lawsuits for statements made during the course of parliamentary proceedings.2 Parliamentary privilege forms part of the general law.3 In Australia, for instance, it finds its footing at the federal level in the constitutional text and historical practices of the Westminster Parliament, the model for the Australian Parliament.4 Historically, Parliament and courts clashed over the meaning and operation of privilege.5 Today, when privilege is raised as a defence to a litigation claim, courts seek to confirm the existence of the category of the claimed privilege.6 If confirmed, it is for the House to determine when it should be exercised.7 In other words, courts approach the litigation pleading of parliamentary privilege like a question of fact: does the privilege exist? If the answer is ‘yes’, the court will defer to the legislature’s judgement of when and in what circumstances the privilege should be invoked. The court’s proper role is not to question the wisdom of its use but rather to enforce a jurisdictional limit on its availability when raised to defeat a plaintiff’s claim. Judicial deference to the exercise of privilege promotes a sense of mutual respect between the branches of government and affirms the legislature’s autonomy over its internal functions. It also recognises that the legislature is in a superior position, particularly as compared to a reviewing court, to assess the need for invoking a recognised privilege to protect the integrity and efficiency of its work in formulating legislation.

Canadian courts have taken a different path. When parliamentary privilege is raised in litigation, Canadian courts do not end their inquiry after confirming the existence of a parliamentary privilege. Judges go on to decide whether the privilege is necessary to protect processes or activities that serve legislative functions. If a privilege is seen by the reviewing court as unnecessary to protect legislative functions in relation to the plaintiff’s claim, or its scope is framed too broadly, the court will reject its exercise and decide the case on its merits. By probing necessity and scope, Canadian courts scrutinise parliamentary privilege more intensely than courts in other jurisdictions. To succeed in litigation, Canadian legislatures must put forward a neatly tailored version of privilege that engages with the details of the plaintiff’s case to demonstrate why its adjudication would disrupt a process or activity serving a legislative function. Over time, this approach has resulted in the judicialisation of parliamentary privileges and an incursion by the courts into the legislative institution. In their scrutiny of parliamentary privileges, Canadian courts play a supervisory role in relation to legislative functions and regulate parliamentary processes and activities to an extent not seen elsewhere. In Canada, it is courts, and not legislatures, that ultimately decide what counts as a valid legislative function and the processes and activities that are needed to fulfil it. Through the precedential effect of their rulings, judges have hollowed out the content of privilege and incentivised further litigation. This degree of judicial control has eroded the Canadian Parliament’s sense of autonomy and vitality. Canada’s Senate, for example, has noted the ‘prominent’ role of the courts in defining the content and scope of its privileges, which distinguishes it from other Westminster parliaments.8

I argue that the Canadian approach should not be followed in other jurisdictions for two reasons. First, the exacting judicial scrutiny of parliamentary privilege raised in litigation is misguided under a conception of the separation of powers that seeks to foster mutual respect among the branches of government. Second, as an institution designed to adjudicate individual rights, courts are ill-placed to decide the necessity of processes and activities that fulfil legislative functions. Courts should resist engaging with the propriety of the exercise of a recognised category of privilege. They should instead defer to the legislature’s judgement after confirming the existence of a relevant category of privilege either in law or historical practice. The balance between the unfairness caused to an individual by the exercise of a privilege to defeat their legal claim as against the protection of legislative functions should be struck not by courts but by legislators who are accountable to an electorate. To promote fairness and reduce the risk of court interference, legislatures should strengthen the accountability and transparency associated with the exercise of privilege. This article, therefore, concludes with a call to action for legislatures to develop guidelines and other mechanisms to ensure the appropriate use of their privileges.

2. Canadian Jurisprudence on the International Stage

Canada has developed an international reputation as a stable democracy committed to the rule of law. Numerous books and articles have been written to highlight uniquely Canadian approaches to legal problems, including its constitutional rights model.9 Scholars have sought to trace its influence on countries around the world, including common and civil law countries and international courts like the European Court of Human Rights.10 Canadian public and private law is routinely cited by law reform commissions to help justify proposals to change domestic law and by courts in resolving legal claims.11 Judgments of the Supreme Court of Canada have been especially influential in foreign courts, with the Supreme Court itself observing that the ‘quality of its work and the esteem in which it is held both in Canada and abroad contribute significantly as foundations for a secure, strong and democratic country founded on the Rule of Law’.12 Judges and scholars have sought to explain the growing influence of Canadian law at the international level. Aharon Barak, for example, has written that ‘Canadian law serves as an inspiration for many countries’, crediting its popularity to the Supreme Court of Canada’s use of comparative law that enriches its decisions.13 Similarly, Mark Tushnet has written that ‘the influence of the United States Constitution and Supreme Court around the world has waned while that of the Canadian Charter and Supreme Court has increased’.14 In relation to constitutional law, Tushnet considers a number of factors responsible for the international ascendency of the Canadian approach over that of the United States. He cites the Canadian Constitution’s comparatively younger age, its reputation for liberalism, its embrace of proportionality and balancing tests, its rejection of a strict interpretive approach rooted in originalism, its focus on institutional cooperation instead of contestation, its weak form review that encourages institutional dialogue and its openness to using sources of foreign law.

This article does not challenge Canada’s place among the world’s legal systems as an important comparator jurisdiction—precisely the opposite. There are many good reasons to look to Canada as a model and source of inspiration in tackling pressing legal problems. Canada has a dynamic legal culture that benefits from, among other things, the mixing of common, civil and indigenous legal traditions. Instead, this article seeks to demonstrate on an international stage that Canada can be both a useful model for inspiration and also a model for what not to do. The reader is encouraged to develop a stronger sense of discernment when approaching Canadian law: Canada’s jurisprudence will not work everywhere, and more to the point, some of its approaches do not work well at home. Through the study of the Canadian law of parliamentary privilege, this article tells a cautionary tale and warns others of the institutionally harmful consequences of going down the path forged by the Supreme Court of Canada.15

3. Necessity: The Mother of Intervention

While it ultimately found in favour of the provincial legislature, a majority of the Supreme Court of Canada laid the groundwork for a judicially interventionist approach to parliamentary privilege in its judgment in New Brunswick Broadcasting Co v Nova Scotia (Speaker of the House of Assembly) (‘NB Broadcasting Co’).16 On the facts of the case, a television producer brought a claim against the Nova Scotia House of Assembly for refusing its request to access the legislature’s public gallery. The producer sought to film the House proceedings for news reporting. The House’s refusal was challenged by the producer in court on the basis that it infringed the rights to free expression and freedom of the press that are guaranteed by the Canadian Charter of Rights and Freedoms.17 The House Speaker sought to have the producer’s claims dismissed by invoking the privileges of maintaining order and excluding strangers.

In its judgment, the majority first considered a potential jurisdictional hurdle to deciding the case. Article 9 of the English Bill of Rights 1689 excludes judicial review of ‘Proceedings in Parliament’.18 If this privative clause formed part of the Canadian Constitution, it could block the Charter review of parliamentary proceedings, including the House of Assembly’s refusal to grant the producer access to the public gallery.19 The majority held, however, that Article 9 had not been entrenched in Canada’s Constitution because the constitutional text did not specifically mention the Bill of Rights. Further, the Constitution Act, 1867’s preamble—establishing that the Constitution of Canada is ‘similar in Principle to that of the United Kingdom’20—was formulated broadly and could not, as a matter of interpretation, import a ‘specific article’ from the Bill of Rights.21

The majority held that parliamentary privileges themselves had been imported into the Constitution, protecting both the federal Parliament and provincial legislatures.22 The majority anchored this holding in the constitutional preamble. In the majority’s view, the preamble’s effect was to entrench the United Kingdom’s system of parliamentary democracy in Canada. That system included certain privileges for Canadian legislatures that had been modelled on Westminster.23 Because of their constitutional status, parliamentary privileges could not be negated by Charter rights: ‘one part of the Constitution cannot be abrogated or diminished by another part’.24 Importantly, however, only ‘inherent privileges’ of the legislature were constitutionally entrenched. Inherent privileges might not cover the full range of legislative processes and activities. Those falling outside the scope of an inherent privilege would be subject to the application of Charter rights, although this was not such a case.25 Moreover, while a legislature might enact legislation to declare its privileges, legislated privileges were not necessarily equivalent to inherent privileges.26 Inherent privileges were only privileges that could be confirmed by a reviewing court as needed for legislative functions.27 Citing English and Canadian authorities28 and academic commentary,29 the majority held that ‘[t]he parameters of this jurisdiction are set by what is necessary to the legislative body’s capacity to function’.30 In scrutinising privilege pleaded in a Charter case, the reviewing court would not limit its role to confirming the category of pleaded privilege in law or historical practice. Instead, courts would identify the inherent privileges of the legislature case by case by applying a necessity test.

Once a privilege had been accepted by the reviewing court as an inherent privilege, it operated as a complete bar to a Charter claim.31 In future cases, courts would work out which legislative processes and activities fell within the legislature’s Charter-free zone and which fell outside of it. To constrain the Charter-limiting effect of parliamentary privilege and protect individuals from its potential misuse to limit their rights, a line would be drawn by the Court. Seen from an institutional perspective, the majority’s holding reflected a re-casting of roles that followed the advent of the Charter in 1982. The Charter tasked judges with the interpretation and enforcement of certain fundamental rights, a role that had been embraced by Canadian courts.32 While the majority accepted that certain legislative processes and activities properly excluded Charter rights review, parliamentary privilege could not have an impermissibly broad scope in the post-1982 constitutional order. At some point, legislative processes and activities must yield to the Charter guarantee.

In applying the necessity test in a Charter case, the reviewing judge would examine whether the privilege was properly pleaded as an inherent privilege to ensure that its scope did not stray beyond its necessity to legislative functions. In carrying out the exercise, the court would not accept the legislature’s description of what it needed to protect its work from interference. With the Charter, too much was at stake. Judges would make an independent assessment: ‘[i]t is for the courts to determine whether necessity sufficient to support a privilege is made out’.33 But what was necessary? Courts would first identify important legislative functions and then consider what processes and activities were needed to fulfil those functions.34 In its reasons, the majority provided only limited guidance on how judges should approach the task. A reviewing court should determine what was necessary for legislative work, not historically but at the present time.35 Inherent privileges would be those processes and activities ‘without which the dignity and efficiency of the House cannot be upheld’.36 They would relate to the legislature’s ‘proper functioning’,37 its ‘efficient operation’,38 ‘the conduct of [its] business’39 and what legislatures needed to ‘perform their functions’ and to ‘properly discharge their functions’.40

In discussing necessity, the majority took pains to distinguish inherent privileges in Canada from the privileges of the Westminster Parliament. According to the majority, the United Kingdom’s privileges had not been fully imported into the Canadian Constitution: inherent privileges were not the same as the robust Westminster privileges.41 This holding challenged previous understandings of Canadian privileges. Since the time of the country’s founding in 1867, Canadian parliamentary privileges were seen as generally equivalent to those in the United Kingdom, particularly in relation to the federal Parliament.42 The parliaments of both countries played similar legislative roles and were seen by analogy to require the same rights, powers and protections. In 1867, Canada’s first Parliament enacted legislation to provide its two Houses with the same privileges as those held by the British House of Commons. The Act remains in force.43 Moreover, in 1875, the Constitution was amended to clarify that the Canadian Houses could enjoy new British parliamentary privileges, not just those in 1867.44 The picture was clear: the Canadian Parliament received privileges equivalent to the British House of Commons.

NB Broadcasting Co was not, however, a case about ordinary parliamentary privileges competing against ordinary rights. The case was framed as a series of constitutional questions about the potential clash between parliamentary privilege and Charter rights in relation to a provincial legislature. The majority’s holding that only inherent privileges had been constitutionally entrenched supplied judges with the jurisdiction to distinguish what they perceived to be the most important privileges from ordinary privileges, resolving the clash by forging a middle ground. Only judicially endorsed privileges would overcome Charter rights. By de-coupling inherent privilege from a larger base of Westminster and legislated privileges, the majority carved out a space for judges to select constitutionally entrenched privileges freed from past practice. Yet, this de-coupling also presented an inconsistency. Earlier in its reasons, the majority anchored the constitutional entrenchment of parliamentary privilege in the preamble that established the Canadian Constitution as being similar in principle to that of the United Kingdom. This analogy quickly ran aground, however, in relation to the content of those privileges. Westminster’s privileges would provide only a starting point for identifying inherent constitutional privileges.45 Inherent privilege was a question to be decided by courts in light of current legislative needs. What would be needed for Canadian legislatures might be different, and likely more limited, than the needs of the Westminster Parliament.46

The majority provided several reasons in support of its view that Canadian provincial inherent privileges would likely be narrower in scope than those at Westminster. First, colonial legislatures operated under overarching limits to their lawmaking authority, unlike the sovereign Westminster.47 Constitutionally speaking, therefore, the early Canadian legislatures were a lesser kind of institution. Because of this limited role, they did not require the more robust Westminster privileges to carry out their functions. Instead, they needed only ‘very moderate privileges’: a limitation they passed down to their successor legislative institutions.48 Second, Canadian legislatures did not engage in power struggles with other branches of government like in the United Kingdom.49 In the result, Canadian legislatures did not need robust privileges to protect their dignity and standing.50 Third, judicial functions had been removed from early Canadian legislatures, unlike in the United Kingdom where the Parliament’s judicial functions justified stronger privileges.51 To the majority, the differences meant that Canadian legislatures would ‘possess similar, although not necessarily identical, powers’52 as compared to Westminster and that inherent privileges ‘may not exactly replicate the powers and privileges found in the United Kingdom’.53 What was not stated, however, was likely the main motivation to distinguish Canadian privileges from Westminster: providing a way for courts to curb the exercise of parliamentary privilege to defeat Charter rights.

The majority then turned to apply the necessity doctrine to the privileges pleaded by the Speaker. While free legislative debate and the power for the House to exclude strangers could be ‘regarded as essential to the proper functioning of a legislature’, the majority proceeded to ‘ask anew’ whether these traditional privileges rose to the level of constitutionalised inherent privileges.54 The majority engaged in an inquiry to consider whether the pleaded privileges were currently needed for ‘modern Canadian democracy as it has been to democracies here and elsewhere in past centuries’.55 Without referring to any evidence, the majority assessed the value and significance of parliamentary debate in the House to the development of legislation and the potential for persons in the public gallery to interfere ‘in a variety of ways’.56 Following the discussion, the majority concluded that the privileges were genuinely necessary to protect a legislative function of formulating legislation. The majority, therefore, accepted that they were constitutionalised inherent privileges.57

Having accepted the pleaded privileges as inherent privileges that operated to defeat the plaintiff’s Charter claims, the majority turned to a discussion of judicial deference. The majority held that a court had ‘no power to review the rightness or wrongness of a particular decision made pursuant to [a] privilege’.58 It also cautioned that ‘necessity is not applied as a standard for judging the content of a claimed privilege’.59 The majority observed the following:

Were the courts to examine the content of particular exercises of valid privilege, and hold some of these exercises invalid, they would trump the exclusive jurisdiction of the legislative body, after having admitted that the privilege in issue falls within the exclusive jurisdiction of the legislative body. The only area for court review is at the initial jurisdictional level: is the privilege claimed one of those privileges necessary to the capacity of the legislature to function? A particular exercise of a necessary privilege cannot then be reviewed, unless the deference and the conclusion reached at the initial stage be rendered nugatory.60

Each branch of government was required to respect the other branches to ensure that they could ‘play their proper role’.61 No branch should ‘overstep its bounds’, and ‘each [must] show proper deference for the legitimate sphere of activity of the other’.62 In a constitutional and legal system operating on a system of institutional reciprocity, courts could not insist on their autonomy and independence if they were not in turn willing to provide it to the legislature.63

Notably, judicial deference was applied by the majority after it accepted the pleaded privileges as necessary to a valid legislative function. Now, at this point, the privileges could be exercised by the legislature to prevent interference in its functions, in this case by the Court deciding a Charter claim.64 Once necessity had been made out, it was not for courts to question the exercise of privilege or the motives behind its exercise. At first glance, the point seems obvious because courts do not ordinarily question whether or how a defendant exercises their rights in responding to a claim. Nor would courts comment on the wisdom of litigation strategy. What makes NB Broadcasting Co unique is that the invocation of privilege was not simply a defendant’s response to a rights claim. It represented the exercise of a right of the legislature to remove the court’s jurisdiction to adjudicate a plaintiff’s claim. The significance of this act presents difficult questions about the extent to which it should be independently scrutinised. According to the majority, courts should examine the necessity of a privilege claim but not its exercise. This holding begs the question of where exactly the line should be drawn between necessity and the exercise of privilege that places it beyond the reach of judicial review. In NB Broadcasting Co, the majority held that it would not consider whether filming in the public gallery would actually disrupt the debate.65 While it discussed evidence on this point, the majority simply accepted the Speaker’s word for it. The Speaker could decide what amounted to interference in exercising privilege to block the Court from deciding a Charter claim seeking access to the legislature’s public gallery.

It is also worth questioning whether judicial deference came too late to be meaningful in this case. When applied, the majority had already closely scrutinised the pleaded privileges in the context of the plaintiff’s Charter claims. It found them to be necessary to legislative functions. In its reasons, the majority acknowledged that debate could be disrupted by Charter claims, a review standard of plausibility or rational connection to determine whether the plaintiff’s claim fell within the scope of the pleaded privileges. At this point, the House had total freedom to decide whether it should block the proposed filming. Pulling back judicial scrutiny at this stage allowed the majority to avoid pronouncing upon the propriety of exercising the privilege to end the case. From the disappointed plaintiff’s perspective, judicial deference reinforced that the House was responsible for the outcome and not the Court. It also provided an opportunity for the Court to pay respect to the legislature. Was this kind of judicial deference simply window dressing in light of the judicial scrutiny already applied? After confirming the constitutional significance of the pleaded privileges to a legislative function, the Court would not decide whether that function was actually threatened in the case, only that it could be if the Speaker invokes privilege. Late judicial deference provided cover for the Court while allowing it to play the key role in determining the existence, meaning and scope of the privilege: questions intimately connected to whether they would succeed in defeating the plaintiff’s claim.

4. Hollowing-Out Privilege by Narrowing the Scope

The Speaker of the Canadian House of Commons receives certain benefits in addition to those provided to ordinary Members of Parliament. Perks include the use of a chauffeured car for ‘the fulfillment of the responsibilities of the Speaker’s office’.66 In Canada (House of Commons) v Vaid,67 the Speaker’s chauffeur claimed that he had been unlawfully dismissed from his post. The Supreme Court of Canada rejected the privileges put forward by the Speaker relating to internal affairs and the management of employees on the basis that they were framed in overly broad terms, which were unnecessary to protect legislative functions from interference by the adjudication of the plaintiff’s claim. The Supreme Court decided the case on its merits.68

Vaid provides a compelling illustration of close judicial scrutiny applied to a parliamentary privilege claim. The case goes beyond NB Broadcasting Co in two key respects. First, it introduces scrutiny of the scope of a claimed privilege as part of a structured two-step approach to necessity. Under this approach, a privilege will be rejected if its scope is pleaded in terms broader than what is necessary to meet the plaintiff’s claim. The focus on scope moves the necessity doctrine beyond a more abstract, conceptual inquiry into legislative functions to a contextualised inquiry that is intimately connected with the plaintiff’s claim. After Vaid, the legislature would need to persuade the reviewing court of the proper scope of a privilege put forward in relation to the details of the case. Second, Vaid expanded the judicial regulation of parliamentary privilege by extending the application of the necessity test from its role in identifying constitutionalised inherent privileges of a provincial legislature in a Charter case to federal parliamentary privileges pleaded in response to any kind of legal claim.

Writing for a unanimous bench, Justice Binnie opened the judgment by discussing the importance of ‘the relationship between the legislature and the other branches of the State’.69 According to Justice Binnie, an ‘equilibrium’ must be maintained.70 When parliamentary privilege is pleaded, a court should respect the legislature by refraining from speculating as to why the claim had been made. A reviewing court should probe only the privilege’s ‘existence and scope’.71 While Justice Binnie wrote of mutual respect and judicial deference,72 the burdens imposed on the Speaker in this case—to tailor the scope of privilege to the chauffeur’s employment claim and demonstrate its necessity to legislative functions73—provided the Supreme Court with ample latitude to influence the use of privilege. In contrast to its respectful deference rhetoric, the Supreme Court’s ruling amounted to a significant encroachment on Parliament’s autonomy: in Vaid, the Supreme Court overruled the presiding officer of the House on what counted as a valid legislative function and the scope of privilege. In future cases, Parliament would need to plead a stripped-down version of privilege to survive judicial scrutiny. For a chance of litigation success, privileges could not be framed in traditionally robust terms.74 The Supreme Court’s re-formulation of the necessity doctrine also compelled Parliament to participate in the dilution of its privileges. In the uncertainty of litigation, the question becomes the following: what have the courts already accepted under the necessity doctrine? Vaid, thus, completed the judicialisation of parliamentary privileges started in NB Broadcasting Co by sparking the creation of a new body of law in which parliamentary privileges were defined narrowly, and courts regulated their availability and content.75

In NB Broadcasting Co, the Supreme Court considered whether provincial legislative privileges were constitutionally entrenched and, if so, how they might be reconciled with Charter rights.76 The majority decided that certain inherent privileges enjoyed constitutional status capable of removing the Court’s jurisdiction to adjudicate Charter claims. Inherent privileges would be distilled by courts from a broader base of privileges through the doctrine of necessity. Vaid, by contrast, was not a Charter case.77 The case focused on the federal Parliament’s legislated privileges in the Parliament of Canada Act, which had been pleaded by the Speaker.78 Under the NB Broadcasting Co approach, the necessity doctrine would be irrelevant in Vaid because no inherent privileges needed to be identified to defeat a Charter claim. The risk was that legislated privileges might remove the Court’s jurisdiction to adjudicate a plaintiff’s ordinary common law or statutory rights. Were there any limits in such a case?79 The Parliament of Canada Act declares the federal Parliament’s privileges in broad terms by incorporating ‘such and the like privileges, immunities and powers’ held by the Westminster Commons in 1867.80 Forging a new path, Justice Binnie distinguished privileges at the federal and provincial legislatures. There were ‘significant differences’ between them as provincial legislatures had ‘a different constitutional underpinning’.81 For the federal Parliament, there were no different levels of privilege. Instead, all federal privileges, including those declared by statute, were held by Parliament absolutely, providing it with ‘jurisdictional immunity’ for all legal claims, even Charter rights.82 In other words, all federal privileges enjoyed a constitutional status and could be exercised to prevent the courts from adjudicating any claim falling within their scope.83

At first glance, this holding appears to significantly broaden the impact of Parliament’s privileges. Yet, the elevated constitutional status of all federal privileges had the opposite effect, as it became the justification for judicial scrutiny. Because of the right-limiting consequences of federal privilege, the Court would need to scrutinise its scope to ensure that it did not go beyond what was necessary to fulfil legislative functions. The scope would be judicially delimited. After Vaid, courts could use scope to blunt the impact of federal privileges in relation to any kind of legal claim, not only Charter claims. The necessity doctrine, an exacting form of scrutiny forged in the heat of a clash between privilege and Charter rights, would become more exacting in the context of an ordinary claim. Vaid, therefore, cemented the role of the Court as gatekeeper of federal parliamentary privilege.

Justice Binnie articulated a two-step approach for testing privilege claims under the Parliament of Canada Act. First, a court should consider whether a category of privilege matched one that had been ‘authoritatively established’ by precedent or in practice at Westminster, the benchmark that was specified by the Act.84 If a match of the ‘existence and scope’ of the claimed privilege was found, the Court should presume its necessity.85 Second, if there was no match, the Court would carry out an inquiry to determine the current necessity of the pleaded privilege to preserving legislative functions from interference by the Court adjudicating the plaintiff’s claim. Necessity should be interpreted broadly by courts to promote the dignity, efficiency and autonomy of the federal Parliament.86 According to Justice Binnie, the Parliament

… must 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 members of their functions as a legislative and deliberative body, including the assembly’s work in holding the government to account, that outside interference would undermine the level of autonomy required to enable the assembly and its members to do their work with dignity and efficiency.87

Justice Binnie noted that the reviewing court should test only the necessity of the ‘category (or sphere of activity)’ of the privilege to provide the House with some measure of discretion to exercise it.88 The scope of the privilege would form a critical part of the analysis. Delimiting it would be a ‘function of the courts’, although the distinction between the scope of a privilege and its exercise ‘may sometimes be difficult to draw in practice’.89

Despite the respectful deference with which the reviewing court was to apply the two-step approach, its application involved a degree of scrutiny that would make it difficult for federal privilege claims to succeed. In the first step, the matching exercise would often bear little fruit. In his reasons, Justice Binnie acknowledged that the meaning of privilege in the United Kingdom was itself ‘a matter of controversy’90 and that ‘[m]uch of the U.K. law of privilege remains unwritten’.91 Further, a reviewing court should prefer English court judgments about privilege over a ‘unilateral assertion of privilege by the British House of Commons’.92 Unfortunately, the problem was the lack of cases: ‘[t]here has been little formal adjudication of the boundaries of U.K. privilege in British courts’.93 There might also be important differences between Canada and the United Kingdom, as ‘our respective Parliaments are not necessarily in lock step’.94 Such differences could independently justify a full necessity inquiry, even if a match had been found in the first step:

It seems likely that there could be ‘differences’ consisting of parliamentary practices inherent in the Canadian system … which would fall to be assessed under the ‘necessity’ test defined by the exigencies and circumstances of our own Parliament. The point would need to be explored if and when it arises for decision.95

It would seem, therefore, that federal privilege claims would end up at the second step, requiring a full-blown judicial determination of necessity. Justice Binnie’s application of the second step in Vaid illustrates the hurdles that a federal parliamentary privilege claim would need to overcome at this stage to succeed.

Applying the first step to the pleaded privileges, Justice Binnie found no conclusive Canadian authority or direct match at Westminster. In looking at the United Kingdom, Justice Binnie observed that a privilege of employee management went ‘well beyond the more limited privilege’ mentioned in a British parliamentary committee report.96 Moving to the second step, Justice Binnie examined the necessity of pleaded privileges. In this step, Justice Binnie focused on the position of the plaintiff: the ‘onus was on the [Speaker] to establish a privilege that immunises their conduct from the ordinary law governing the resolution of disputes with support staff such as Mr. Vaid’.97 Justice Binnie discussed changes to the composition of parliamentary staff since 1867, which had expanded to include ‘many departments and services’ that employed numerous staff members ‘including a locksmith, an interior designer, various curators, five carpenters, a massage therapist, two picture framers’.98 Under its terms, the privilege put forward by the Speaker would apply to all employees, who could not all be necessary for the House to discharge its function of making legislation.99 The scope of the privilege pleaded was fatally flawed. It had been framed by the Speaker in the ‘broadest possible’ way, using ‘all-inclusive terms’.100 While Justice Binnie had ‘no doubt’ a similar privilege with a ‘more modest scope’ did exist, he refused to consider it on the basis that the Court was ‘given no evidence’ in relation to it.101 Justice Binnie also refused to allow the Speaker to amend the pleadings to limit the scope of the privilege claim as ‘it would not be fair to the respondent Vaid to substitute at this stage a description of a narrower privilege that he was not called upon to address’.102 The Speaker’s privilege was, therefore, rejected and the case was decided on its merits.103

What explains the Supreme Court’s new interest in the scope of federal privilege claims? Vaid is shot through with judicial concern to decide the plaintiff’s claim on the merits, in contrast with NB Broadcasting Co, where the position of the plaintiff would only be relevant if the privilege claim failed. Vaid was an employee in need of the law’s protection. The facts weighed on the minds of the justices and influenced their scrutiny of the Speaker’s privilege pleadings, which carried the potential to cause an injustice. Justice Binnie sympathises with the position of the chauffeur and expresses scepticism for the Speaker’s position. He acknowledged that the plaintiff’s claim would affect the intensity of judicial scrutiny. Closer scrutiny of privilege is ‘especially important when … [it] is directed against a stranger to the House’.104 Similarly, ‘[c]ourts are apt to look more closely at cases in which claims of privilege have an impact on persons outside the legislative assembly’.105 In applying the necessity test, the reviewing court must ‘ensure that a claim of privilege does not immunise from the ordinary law the consequences of conduct by Parliament or its officers and employees that exceeds the necessary scope of the category of privilege’.106 Justice Binnie wrote as follows:

It should be emphasized that a finding that a particular area of parliamentary activity is covered by privilege has very significant legal consequences for non-members who claim to be injured by parliamentary conduct, including those whose reputations may suffer because of references to them in parliamentary debate, for whom the ordinary law will provide no remedy.107

Vaid emphasises that, without judicial control, parliamentary privilege could overtake individual rights. The role of the court is to ensure that ‘legislative bodies … do not constitute enclaves shielded from the ordinary law of the land’.108 While parliamentary privilege is also part of the general law,109 it limits the capacity of the courts to vindicate the plaintiff’s rights and provide a remedy to a legal wrong. The court would need to limit privileges to reconcile the institutional interests of the legislature and the legal protection of individuals.

5. A New Era of Judicial Control

5.1. Introduction

Following NB Broadcasting Co and Vaid, Canadian courts scrutinised parliamentary privilege in dozens of new cases.110 Many Canadian scholars welcomed the increased judicial scrutiny of privilege to protect individual rights and the rule of law. Evan Fox-Decent, for example, wrote that while the distinction between the scope and exercise of privilege was flawed, courts should go even further to scrutinise the exercise of privilege to promote a culture of public justification.111 Warren Newman called for balancing privilege with important rights to ‘ensure that the exercise of parliamentary privilege by bodies that are inherent political rather than adjudicative in nature is tempered by considerations of fundamental constitutional principle, procedural fairness and the necessities of the case’.112 Others called for a less confrontational approach.113 By contrast, Charles Robert and Vince MacNeil encouraged legislatures to more strongly assert their privileges.114 They argued that privilege had been transformed from a shield against interference to a sword against rights, which might ‘fuel public cynicism and damage Parliament’s reputation’.115 The judicial scrutiny of privilege had resulted in ‘a parade of legal challenges, and ultimately to a court-driven modernization that is already unsatisfactory to parliamentarians’.116 The case law was ‘piecemeal and disjointed, confusing and contradictory’.117 Robert and MacNeil called for legislatures to act proactively instead of defensively in litigation.118 Legislatures should carry out a comprehensive review of their privileges and set them out in legislation, which ‘will help ensure that privileges can withstand close judicial scrutiny. It will also serve to ensure that privileges are fair and reasonable in a modern context’.119

A survey of post-Vaid privilege jurisprudence reveals considerable uncertainty in the law and its application in relation to the constitutional status of privilege, the distinction between federal and provincial privileges, inherent as compared to legislated privileges, the application of the necessity test to legislative processes and activities, the identification of valid legislative functions, the appropriate scope of privilege, how privilege might be waived and who is entitled to plead parliamentary privilege in litigation. In 2018, the Supreme Court of Canada revisited privilege in Chagnon v Syndicat de la fonction publique et parapublique du Québec.120 Three different opinions were written in the case, including a blistering dissent accusing the majority of violating the sovereignty of the Québec National Assembly. Despite the jurisprudential quagmire, one thing remains clear: NB Broadcasting Co and Vaid unleashed a new era in which judges play a central role in defining the meaning and operation of parliamentary privileges with significant consequences for the autonomy and functioning of the legislative branch.

5.2. Free Speech

One major theme in the cases is the extent to which the privilege of free speech applied to committee evidence and who was entitled to plead privilege. In Gagliano v Canada (Attorney General),121 the Federal Court considered whether committee testimony could be used to cross-examine a witness before a commission of inquiry. The Federal Court noted the ‘controversy over the precise interpretation and scope’ of privilege in the United Kingdom.122 While the category of free speech could be established in law, its scope was undefined, which required the Court to assess its necessity. The Court concluded that free speech was necessary for the House’s investigatory function and that its scope covered testimony to encourage witnesses to speak openly.123 The witness could plead privilege to prevent his statements from being used for cross-examination even if there was no risk of penal consequences.124 In Canada (Deputy Commissioner, Royal Canadian Mounted Police) v Canada (Commissioner, Royal Canadian Mounted Police),125 the Federal Court held that a police investigation could not be based exclusively on committee evidence, although the scope of the privilege did not prevent an investigation based on other sources of information.126 A witness was a ‘guest’ of Parliament, who was entitled to plead privilege.127 Only Parliament could initiate proceedings and discipline a witness for giving false or misleading testimony.128 In Guergis v Novak,129 the Ontario Superior Court of Justice held that a former parliamentarian could not compel information from a lawyer relating to committee evidence. To protect the investigatory function of the House, the scope of the privilege extended to transcripts, drafts of testimony and questions relating to the witness’s participation.130 In Ontario v Rothmans Inc,131 the corporate tobacco defendants succeeded in having the Ontario Superior Court of Justice strike part of a healthcare costs recovery claim relating to alleged misrepresentations made by the defendants before parliamentary committees. The Court held that while ‘questions may arise about the precise scope of the privilege from time to time’,132 committee evidence could not be used against a witness in a civil action and that the privilege was not negated by the malice or fraud of a witness.133 Finally, in R v Duffy,134 the Ontario Court of Justice rejected a senator’s request to compel a committee to produce an internal audit report related to expense claims. The publication or production of the information did not negate the privilege.135 According to the Court, if a category of federal privilege had been established, necessity did not need to be demonstrated.136 Necessity was an analysis not based on evidence but legal argument.137 Four categories of privilege were held to apply to the facts.

Despite the broad interpretation given by courts to free speech, not all privilege claims succeeded. In Imperial Tobacco Canada ltée c Conseil québécois sur le tabac et la santé,138 for instance, the Québec Court of Appeal decided that the appellant’s statements made to a committee were properly admitted at trial because the appellant had waived privilege by publishing the statements in a company newsletter.139 In Canadian Pacific Railway Company v Saskatchewan,140 the Saskatchewan Court of Queen’s Bench admitted parliamentary records on the basis that they were unnecessary to protect legislators in discharging their functions. Free speech could not be an ‘absolute bar’ on the use of member speeches in civil cases.141 In other cases, courts considered whether a criminally accused could compel the production of information held by parliamentary committees if the evidence might be needed in their defence. In Lavigne v R,142 the Ontario Superior Court of Justice held that the presumption of innocence might trump privilege in an appropriate case if the innocence of the accused was at stake. To get around the holding in NB Broadcasting Co that the Charter could not negate a constitutionally entrenched privilege, the Court held that the presumption of innocence was not only a Charter right but was also ‘a principle of long standing’.143 In R v Basi,144 the criminally accused sought access to documents held by an officer of the provincial legislature. While the scope of the privilege extended to certain documents held by the officer, the privilege would not allow information to be withheld if there was a risk of convicting an innocent person.145 Documents tending to show the accused’s innocence did not fall within the scope of the privilege and the Court could compel their disclosure.146

5.3. Internal Processes

Control of a legislature’s internal processes is also a major theme in the case law. In Michaud v Québec (National Assembly),147 the Superior Court of Québec held that a resolution of the Québec National Assembly condemning the remarks of a witness before a commission of inquiry was protected by the privilege of holding the government to account.148 Further, the Court could not compel the Assembly to hear the plaintiff’s petition under the relevant legislation, as this would interfere with its internal processes.149 In upholding the Court’s judgment, the Court of Appeal agreed that the legislature had constitutional functions going beyond legislating and holding the government to account.150 In Knopf v Canada (House of Commons),151 a parliamentary committee refused to circulate the supporting documents of a witness because they were not available in both official languages. The plaintiff’s Charter and statutory rights claims were dismissed by the Federal Court as the committee’s decision fell within the scope of the privilege to establish rules of procedure and conduct business free from interference.152 The control of internal proceedings, including the use of documents, was necessary for deliberative functions.153 Similarly in Northwest Territories (Attorney General) v Fédération Franco-Ténoise,154 the Northwest Territories Court of Appeal held that it could not review the Assembly’s decision to publish debates only in English despite a statutory requirement for publication in both English and French. A statute of general application could not abrogate privileges to control proceedings and internal procedures.155 However, in Pankiw v Canada (Human Rights Commission),156 the Federal Court held that a member did not hold privilege over a pamphlet that he distributed to constituents. The communication was not a proceeding in Parliament or related to legislative functions.157 Extending privilege to communications with voters could not be justified by democracy, separation of powers or free speech.158 The member was subject to the jurisdiction of a human rights tribunal in relation to the pamphlet’s contents. Similarly, in Northwest Organics, Limited Partnership v Roest,159 the Supreme Court of British Columbia held that information communicated by constituents to a member was not protected by privilege as they did not relate to a legislative function.160 While it was a wise practice for a member to communicate with voters, it was not necessary for legislating.161 A member should not become an advocate in promoting one group of constituents.162 In Reference re the Final Report of the Electoral Boundaries Commission,163 the Nova Scotia Court of Appeal held that a direction by the Attorney General to an electoral commission for it to comply with its terms of reference without taking Charter rights into account was not protected by privilege. The direction did not fall within the scope of an internal matter to the legislature and was not necessary to legislative functions as it blemished the dignity and weakened the efficacy of the legislature.164 In Laurentian University of Sudbury,165 the Ontario Superior Court of Justice reviewed a Speaker’s warrant that compelled the disclosure of information from a university. The Court stayed the warrant in relation to documents subject to judicial restrictions in a separate restructuring proceeding predating the warrant. Finally, in Singh v Senate of Canada,166 the Federal Public Sector Labour Relations Board rejected a claim of privilege in relation to emails between senators in the context of a labour grievance. The Board held that the Senate failed to ‘authoritatively establish that the Subcommittee members’ emails flowed from a legislative mandate within the Senate’.167 The Senate failed to establish a proper scope of the privilege in relation to emails exchanged between Senators168 and did not ‘attempt to explain’ the necessity of the privilege to the Senate’s constitutional functions.169 The Senate was ordered to produce the relevant emails.170

Questions also arose in relation to the enactment of legislation with mixed outcomes. In Joseph Power v Attorney General of Canada,171 the New Brunswick Court of Queen’s Bench refused to strike out a civil claim against the federal Attorney General. In that case, the plaintiff sought Charter damages for a statute that was later held to be unconstitutional. The plaintiff alleged that the government knew that the law was unconstitutional or had proposed the law in bad faith or with wilful blindness, which caused him damage. The Court held that there was no privilege in relation to the enactment of legislation and that an award of damages was possible because it would not expose individual legislators to liability.172 In contrast, in Mikisew Cree First Nation v Canada (Governor General in Council),173 the Supreme Court of Canada rejected a challenge to the legislative process by a First Nations community. In that case, Parliament enacted environmental protection legislation without consultation. The legislation could have affected the Mikisew Cree First Nation’s treaty rights. A majority of the Supreme Court held that the duty to consult could not be applied to legislative action and that courts should not scrutinise the lawmaking process, including the development of legislation by ministers.174 Among other principles, the privilege of controlling debates and proceedings would prevent courts from imposing procedural constraints on the legislative process.175 Imposing such requirements would be a significant incursion into the sphere of the legislature.176 Privilege protected the formulation and introduction of bills from judicial review and was an unfettered freedom.177 Courts were ill-equipped to respond to the procedural complexities of the legislative process.178

5.4. Disciplining and Regulating Members

Courts decided numerous challenges brought by members or former members that related to the privileges of disciplining and regulating members. In Villeneuve v Legislative Assembly,179 a member was alleged to have made false statements in relation to his residency, entitling him to an allowance. After his defeat in the next election, the legislature’s Board of Management withheld part of a transition allowance to offset the benefits it had previously paid. The Northwest Territories Supreme Court observed that it was unclear whether the scope of internal administration extended to former members.180 In applying necessity, the Court held that the privilege was limited to a sphere of activity where judicial scrutiny interfered with the Assembly’s work.181 The Court held that the Board’s work related to an internal legislative function and that its decision focused on a member’s service and compensation.182 The decision was not subject to judicial review.183 In Boulerice v Canada (Attorney General),184 the Federal Court held that members could challenge a decision of the Board of Internal Economy that found them to have misused parliamentary resources. The Board was not fundamental to democracy, and judicial review would not interfere with the House or prevent it from carrying out its functions.185 In overturning the decision, the Federal Court of Appeal186 held that the trial judge should not have applied necessity when the decision fell within the scope of an established federal privilege.187 The Board acted on behalf of the House, and its decision fell within the scope of three privileges.188 An injustice in the application of the rules was a matter for the House to resolve.189 Judicial review would intrude into the internal functions of the House and increase inefficiency.190 Further, ‘allowing the courts to opine on what Parliamentarians need in order to perform their core parliamentary functions would also impact on the dignity and efficiency of the House by demeaning the role of Parliamentarians’.191 In Guergis v Novak,192 the Ontario Superior Court of Justice held that it could not review a decision by the Prime Minister to dismiss a member from the cabinet and expel her from caucus after receiving allegations about criminal misconduct. The Prime Minister was immune from review when carrying out functions related to his legislative responsibility, and alleged tortious conduct did not negate the privilege.193 In Fletcher v The Government of Manitoba,194 a member of the legislature was expelled from caucus and was unable to switch parties due to floor-crossing legislation. The member’s Charter claim failed as the legislation promoted the dignity and integrity of the legislature.195 The member could still speak in the House as an independent member when recognised by the Speaker.196 In Duffy v Senate of Canada,197 a senator sued the Senate for suspending him in response to alleged improper expense claims, for which he was later cleared in a criminal trial.198 The Ontario Superior Court of Justice dismissed the claim, holding that four different categories of privilege applied and did not need to be further tested by necessity.199 The Ontario Court of Appeal upheld the decision.200 It held that the rule of law did not permit courts to scrutinise the legality of privileged conduct and that the plaintiff had not alleged an ‘ordinary crime’ in the Senate that might give the Court jurisdiction.201 Federal privileges, if established, did not need to be tested for necessity, unlike the inherent privileges of provincial legislatures.202 In CUPE v HMQ,203 the Ontario Superior Court dismissed a claim alleging improper purposes for a governmental decision because of a conflict of interest. The matter fell within the privilege of regulating a member’s conduct and discipline, and conflict of interest laws were part of the privilege.204 In McIver v Alberta (Ethics Commissioner),205 a member challenged a finding that he had breached conflict rules for questions he asked in the House. The Alberta Court of Queen’s Bench dismissed the claim on the basis that conflict rules were part of regulating the standards, conduct, and speech of members and disciplining members. The privileges were necessary for legislative functions.206 The legislature could limit the free speech of members as part of its privileges.207 In Collins v Legislative Assembly of New Brunswick,208 the New Brunswick Court of Queen’s Bench held that the Speaker could not make a claim for alleged harms caused by officers of the legislature as the matter related to three privileges, which continued to be necessary to legislative functions.209 Finally, in Saunders v Nunatsiavut Assembly,210 the Supreme Court of Newfoundland and Labrador decided that an Inuit territorial legislative assembly had similar privileges to those of provincial legislatures.211 The plaintiff challenged her removal from the assembly following disciplinary proceedings. While a privilege to regulate internal affairs was established, the Court required the pleaded privilege’s scope to cover ‘the factual circumstances’ relating to the removal.212 After reviewing the specific behaviour disciplined, the particular sanction imposed, and whether the disciplinary process complied with the relevant code of conduct, the Court concluded that the privilege applied to the plaintiff’s removal.213

5.5. Officers of the Legislature

In relation to officers of the legislature, the Supreme Court of Newfoundland and Labrador held in March v Hodder214 that a resolution terminating the plaintiff’s appointment to a statutory office could not be reviewed. Debating resolutions was a core deliberative function, and judicial review would intrude on the House’s dignity and efficiency.215 Similarly, in Marin v Office of the Ombudsman,216 the Ontario Superior Court of Justice held that the former ombudsman could not make a wrongful dismissal claim against the legislature. Judicial review would involve questioning internal processes and procedures of the House and its role in holding the government to account through a parliamentary officer.217 However, in McBreairty v Information and Privacy Commissioner,218 the Supreme Court of Newfoundland and Labrador reviewed the Information and Privacy Commissioner’s decision to refuse further applications from the plaintiffs. The relevant functions of the Commissioner were not necessary to legislative functions.219 Finally, in Turpel-Lafond v British Columbia,220 the Supreme Court of British Columbia held that a contractual claim by a former legislative officer could be reviewed as it did not fall within an established category of privilege and that the ‘privilege asserted in this case is cast too broadly’.221 Judicial review would not interfere with legislative functions or impair the dignity of the House.222

5.6. Strangers to the House

In relation to strangers, the Québec Court of Appeal held in Singh c Attorney General of Québec223 that the Québec National Assembly could regulate access to the parliamentary precinct by refusing access to persons in possession of a kirpan (a small symbolic metal knife). The Sikh plaintiffs could not seek judicial review of the decision, even on Charter grounds. The exclusion of strangers was well-established, and the Court did not need to consider the application of necessity as a ‘rigorous standard of justification that limits parliamentary privilege’.224 While privilege evolved over time according to its necessity, its necessity was not an independent basis to challenge the exercise of privilege.225 The privilege could not be limited because of Charter rights, even if a claim on religious discrimination would otherwise be likely to succeed.226

5.7. Chagnon and Security Management

In 2018, the Supreme Court of Canada released its judgment in Chagnon. In its reasons, the majority further curtailed the scope of parliamentary privilege through its application of the necessity doctrine. The judgment, however, revealed a significant fault line among the justices. On the facts, the President of the Québec National Assembly dismissed staff for inappropriately using security cameras. The union brought a claim before a labour arbitrator. The question before the Supreme Court was whether the President’s decision was privileged or whether it could be reviewed in the arbitration. Writing for the majority, Justice Karakatsanis held that privilege could not immunise the President’s decision from review by the arbitrator. While provincial legislatures enjoyed inherent privileges, their existence and scope had to be ‘strictly anchored’ to their rationale.227 The Court would decide whether a category of privilege existed and delimit its scope.228 Scope would extend only as far as necessary to protect the constitutional functions of the legislature, although defining the scope of a privilege would not be a straightforward task.229 Because courts cannot review the exercise of a privilege, even on Charter grounds, necessity was to be applied strictly: ‘[t]he necessity test is stringent because … parliamentary privilege has the potential to shield parliamentary decision-making from judicial oversight’.230 In the Charter context, a purposive approach should be taken to privilege to ‘reconcile’ these aspects of the Constitution.231 A privilege must also continue to be necessary in the contemporary context.232 Justice Karakatsanis held that a category of privilege of managing some employees did not need to be decided on the facts because the President’s decision would fall outside its scope.233 In future cases, privilege should be framed in narrower terms that relate to the specific functions of certain employees, which would be more straightforward for courts to assess.234 Here, the President had failed to demonstrate the necessity of managing the security guards in relation to the Assembly’s functions.235 While security guards performed important tasks connected to legislative functions, this connection was insufficient to ground a parliamentary privilege claim.236 Instead, the President would need to demonstrate that immunity from arbitration was necessary to the autonomy required by the Assembly to carry out its essential functions.237 The guards were not members of the Assembly and were in need of labour protections.238 The Charter right to freedom of association demonstrated the importance of labour law.239 The dispute could be resolved under ordinary law, which would not limit the independence of the Assembly or its ability to carry out its work with dignity and efficiency.240 Further, the delegation by the President to the guards of the privilege of excluding strangers was insufficient to prevent the review of their dismissal.241 The scope of excluding strangers was not so broad that it could encompass employment decisions of the security guards.242

In dissent, Justices Côté and Brown criticised the majority for rejecting the privileges. Their opinion opened with a powerful account of a 1984 armed attack on the Assembly in which three persons were killed and a further 13 persons injured.243 The attack underscored the necessity of security decisions for the preservation of legislative functions.244 According to Justices Côté and Brown, privilege was not an exception to the rule of law but an important part of the constitutional architecture.245 Historically, parliamentary privileges ‘ensured the development of a model in which the various branches acquired some independence from one another’.246 Charter rights should not be brought into the necessity analysis to limit the scope of the privilege, which would have the effect of subordinating privilege to the Charter: ‘… the necessity test is entirely unrelated to Charter rights’.247 A reviewing court should not engage in close scrutiny of every privilege put forward. Rather, the court had a narrow jurisdiction to determine the existence and scope of a pleaded privilege.248 The necessity analysis would determine the existence and scope of the privilege and the sphere of activity excluded from ordinary law applied by courts.249 Courts must give considerable deference to the Assembly on the scope of the autonomy it considers necessary to fulfil its functions.250 Privilege should not be ‘carved up’ to find a specific decision or exercise of privilege that is not covered.251 It would be unworkable and unrealistic to ask the President to frame privilege in narrower terms that relate to only certain employee tasks. Once a category of privilege and the sphere of activity within the category were ascertained, the inquiry would end. There was no need to further consider whether the arbitration itself interfered with the Assembly’s functions.252 The majority’s approach ‘could always justify interference by a court or tribunal’.253 Justices Côté and Brown wrote that the majority inappropriately reviewed the President’s duties and caused the Assembly to lose control over its security decisions.254 Security decisions were essential to the Assembly carrying out its constitutional functions and are a sphere of activity within a privilege of management.255 The President was responsible for security and must be free to make decisions deemed appropriate, including the tasks performed by security guards. The privilege of excluding strangers also applied as the guards exercised this privilege on the President’s behalf.256 Because of this delegation, the guards’ dismissal was the ‘ultimate exercise’ of the management privilege.257 The President could not have courts or arbitrators dictating security decisions and requiring him to employ persons that were no longer trusted.258

5.8. Post-Chagnon

Following the Supreme Court’s ruling in Chagnon, courts sought to distinguish the majority holding in relation to federal privilege. In Duffy v Canada (Senate),259 for example, the Ontario Court of Appeal reiterated constitutional differences between federal and provincial privileges. According to the unanimous bench, Chagnon focused on provincial inherent privileges, and the majority did not change Vaid’s approach to federal privilege.260 Unlike provincial legislatures, Parliament was constitutionally authorised to define its privileges. Federal privilege did not need to be tested with necessity if the category and scope of a privilege could be established. In such a case, necessity was already decided and was ‘beyond question’.261 When a Charter claim fell within a category of privilege, it was for Parliament to respond to an alleged breach.262 Courts should not balance privileges against Charter rights. Similarly, in Canada (Board of Internal Economy) v Boulerice,263 the Federal Court of Appeal held that the trial judge was incorrect to apply the necessity test to a federal privilege when the activity fell within the scope of an established category.264 Chagnon did not change the Vaid approach to federal privileges as it relates to provincial inherent privileges.265 Necessity could not be revisited for established categories of federal privilege as it would involve the Court intruding into the exercise of a privilege and the business of the legislature.266 It was for Parliament to respond to an injustice in relation to an activity covered by privilege.

Two further post-Chagnon cases merit mention. In Alford v Canada (Attorney General),267 the Ontario Superior Court of Justice ruled as unconstitutional a federal statute removing privilege from members of an intelligence committee in relation to the disclosure of information. According to the Court’s reasoning, the constitutional authorisation for the federal Parliament to define its privileges only permitted it to expand its privileges but not diminish them.268 An abrogation or restriction of federal privilege, like in the relevant statute, would require a constitutional amendment. Finally, in British Columbia (Legislative Assembly) v Illi,269 the Supreme Court of British Columbia held that privilege did not exclude ‘special constables’ from the application of the provincial labour code. The privilege was pleaded in broad terms that could not be accepted as they would ‘exclude the entire labour relations regime’.270 Labour relations rule incorporated protections to give effect to Charter rights, which would be undermined by privilege.271 Privilege had to be reconciled with Charter rights.272 Excluding labour rules was not necessary for the legislature to fulfil its constitutional functions.273

6. The Problems of Judicialised Privilege and How to Preserve Legislative Autonomy

The judicialisation of parliamentary privilege, as seen in Canada, is problematic for two reasons. First, it is misguided under a conception of the separation of powers that seeks to foster mutual respect among the branches of government. This more cooperative understanding of this bedrock principle posits that each institution is not completely independent from the others but has a legitimate role to play in a shared system of governance in relation to its constitutional functions. It is also a conception endorsed by the Supreme Court of Canada, such as in its judgment in Ontario v Criminal Lawyers’ Association of Ontario,274 where the majority held that each branch of government had ‘core competencies’ and ‘distinct institutional capacities’ that ‘play critical and complementary roles in our constitutional democracy’.275 Because of their different functions, ‘each branch will be unable to fulfill its role if it is unduly interfered with by the others’.276 The judicialisation of parliamentary privilege cuts against the grain of this idea by second-guessing and undermining legislative functions instead of recognising and respecting them. It assumes that legislative processes require judicial review and regulation to protect individual rights, which appears to be based on an inherent mistrust of the legislative institution and suspicions about the motives of its actors. While courts play an important function by providing a forum for aggrieved persons to seek redress for legal wrongs and promote the rule of law by enforcing constitutional and legal limits, the exercise of a recognised category of privilege appropriately limits its role. Close judicial scrutiny of parliamentary privilege amounts to judicial overreach that erodes the legislature’s control over its own functions, which is needed for it to confidently fulfil its legislative role. The Canadian experience makes clear that cases involving questions of privilege are not only about an individual plaintiff’s claim. Such cases impact institutional functions and implicate the nature of the relationship between courts and the legislature. When judges adjudicate privilege, they shape the constitutional architecture relating to legislative autonomy and the balance of state power. Courts should, therefore, approach privilege claims not only with the plaintiff’s rights in mind but with a sense of respectful deference to avoid undermining the proper functioning of the legislature as a representative assembly tasked with formulating legislation.

Second, courts are ill-placed to decide which processes and activities are needed for the legislature to carry out its work. While courts are rightly concerned about harsh or unjust outcomes occasioned by the use of privilege to end litigation and its potential use to shield parliamentarians from legal accountability for actions that infringe rights, the judicialisation of parliamentary privilege gives courts an outsized role in regulating the legislative function. From its outside view, the court holds limited knowledge of the lawmaking process and the exigencies of legislative business. It might even be described as discourteous for a court to overrule a parliamentary determination of what is needed to protect its work. However, it is understandable. By design, the court is highly attuned to the perspective of an individual plaintiff and the vindication of their legal rights. This orientation contrasts with that of the legislature, which is tasked with formulating broadly applicable legislation to advance policy goals in the public interest. As noted by Robert and MacNeil, Canadian courts have transformed the conception of privilege as a shield against interference in the legislative process to a sword that cuts down individual rights.277 When deciding a contest between parliament’s more abstract institutional needs and a wronged plaintiff, a judge is unlikely to strike a balance that ensures the integrity of the legislative institution. The Canadian approach is instructive. It demonstrates that when judges closely scrutinise parliamentary privilege, the focus on individual rights, combined with the precedential effect of court rulings, results in the hollowing out of parliamentary privilege. It is a case of death by a thousand cuts. By pronouncing upon the necessity of a narrowly defined scope of privilege pleaded by the legislature in relation to the details of the plaintiff’s claim, the reviewing court can take cover in the act of reviewing the exercise of privilege.278 It doing so, it cuts down the scope of the rights, powers and protections of the legislature, driving an emaciated version of privilege through concerns of fairness and justice to the individual plaintiff.

It is also worth noting that NB Broadcasting and Vaid represent a sort of paradox. At first glance, the judgments appear to protect legislatures by constitutionalising their privileges. However, this elevation of privilege meant that limits needed to be drawn by courts to reconcile privilege with constitutional rights. Such decisions cast the court in the role of determining the meaning, scope and operation of privilege, further incentivising litigation to test its bounds. In Canada, the erosion of privilege has diminished the legislature’s autonomy and sapped its confidence. In a 2015 report, a federal Senate committee observed that there was an ‘opportunity to take a proactive approach before there is pressure to do so as a result of an ill-considered court decision’.279 Parliament should be ‘proactive in defining what privileges are necessary to ensure that the courts will not define privilege in ways that may undermine the functioning of Parliament’.280 According to the Committee, ‘the time is ripe to proactively re-evaluate and reconsider parliamentary privilege’.281 No action was taken. In a later report,282 the Committee was more cautious.283 It recommended that a joint committee be struck to ‘review recent judicial decisions’, looking to courts for guidance on its privileges.284

While Canadian parliamentary privilege operates within a judicialised model, the parliaments of other Westminster jurisdictions should learn from the experience.285 They should be on the front foot to reduce the risk of courts interfering with their work and hollowing out their privileges. Parliaments should address the reasons why courts might be tempted to regulate their privileges. Their responses must make clear the constitutional importance of their work. Moreover, they should not assert privilege on the basis that they are entirely independent from the other branches and a law unto themselves. Instead, parliaments should advance a cooperative notion of the separation of powers that values the unique role that each branch of government has to play in a model of shared governance. Parliaments should highlight their distinct functions and the contributions they make through legislative processes and activities. They must also consider the potential unfairness caused to individuals by the exercise of their privileges. While privilege excludes the jurisdiction of the court from adjudicating a claim to protect the institutional needs of the legislature, it also brings a certain responsibility to the legislature to ensure the appropriate use of its privilege, particularly when it will have an impact on the rights of individuals outside the parliament. Guidelines should be developed for the appropriate exercise of privilege. In relation to potentially defamatory statements, standing rules should establish protocols for members and committee witnesses, including notice, private sessions and opportunities for third parties to reply to adverse information provided about them. Public complaint mechanisms should be established to promote the appropriate use of privilege to further legislative functions, with sanctions available for its misuse. Parliament should establish clear rules to regulate the conduct of members and internal disciplinary processes to enforce those rules. It should consider whether to legislatively extend the application of ordinary law to certain areas otherwise covered by privilege, such as labour and employment rules and associated dispute-resolution processes. To promote transparency, the use of privilege should be reported on by a committee and regularly tabled in parliament. Greater transparency will serve accountability and inform further reforms by making parliament confront the use of its privileges, with ultimate accountability at the ballot box.286 By remaining proactive, the legislature can both protect its autonomy and properly fulfil its constitutional role as lawmaker-in-chief.

7. Conclusions

While Canadian jurisprudence is frequently held up as a model to be followed on the international stage, in the case of parliamentary privilege, it is a model that should be avoided. The judicialisation of privilege has shifted considerable power away from the legislature and to courts, with judges now supervising legislative functions and regulating parliamentary work to a degree not seen elsewhere. This incursion by the judiciary into the legislative domain has contributed to a weakening of the Canadian Parliament’s autonomy and vitality as the democratically elected lawmaker in chief. It has also incentivised litigation to challenge legislative processes and activities before courts that prioritise individual rights over institutional needs, creating a downward spiral of increasing judicial regulation and control with each new case. The Canadian jurisprudence tells a compelling cautionary tale and serves as a warning to other jurisdictions that might gradually adopt a Canadian-style approach to parliamentary privilege. To avoid a similar outcome, courts should be cautious in using Canadian privilege jurisprudence, while legislatures should remain proactive to safeguard their autonomy and vitality.