At the time this
article was written Robert Reynolds was Senior Parliamentary Counsel at the
Alberta Legislative Assembly.
Definitions of parliamentary privilege
abound throughout the Commonwealth but drawing largely from Joseph Maingot, a
noted Canadian author on the subject, privilege can be described as the
necessary immunity the law provides for Members of a House of Parliament or
Assembly to perform their work and the authority of those Houses and Assemblies
to enforce that immunity and protect their integrity. It also covers the
rights enjoyed by each House of Parliament and Assembly required to perform
their work. Members, officers and those participating in a proceeding of
a House or Assembly are “cloaked” by privilege. Any offence against the
authority of a House of Assembly is technically considered a contempt.
Parliamentary privilege is often subject to modern and changing circumstances
as the categories of privilege were fixed in the very early 18th
century.
The attempt to make the definition
comprehensive renders it dry. This is unfortunately because, in my view,
the historic rationale for parliamentary privilege is as relevant today as it
was centuries ago – to allow Houses and their Members to conduct their business
according to the rules they set, free from undue interference from those
outside the House. The law of parliamentary privilege protects and
promotes core values in our democratic system by protecting Houses of
Parliament, Assemblies and those who serve in them
This year marks the 10th
anniversary of an important milestone in the recognition of parliamentary
privilege. On January 21, 1993 the Supreme Court of Canada released its
decision in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker, House of
Assembly). Parliamentarians often refer to this as Donahoe after
Arthur Donahoe the then Speaker of the Nova Scotia Assembly. In Donahoe
the majority of the Supreme Court of Canada held that an Assembly’s
inherent parliamentary privileges enjoy constitutional status and cannot be
“trumped” by another part of the Constitution, specifically, the Canadian
Charter of Rights and Freedoms.
The issue in Donahoe was whether
television camera operators had the “right” under the Charter to film
the proceedings of the Assembly or whether the Assembly had the right to
exclude them from the galleries. The majority of the Supreme Court held that
Canadian legislative bodies possess such inherent privileges as may be
necessary to their proper functioning and that such privileges, although not
part of the written Constitution, are part of the fundamental law of the land
and are, accordingly, constitutional. Among the privileges recognized by
the majority of the Supreme Court were: freedom of speech including immunity
from civil proceedings, exclusive control over the House’s own proceedings,
ejection of strangers from the House and its precincts and control of
publication of debates and proceedings in the House. Accordingly, the Assembly
was within its rights to exclude the camera operator.
While the Donahoe decision
confirmed parliamentary privilege as an unwritten part of the Canadian
Constitution, it has not ended the inquiry by the courts into what constitutes
the proper application of the doctrine of parliamentary privilege. Determining
the scope of parliamentary privilege is certainly a challenge in the new
century with courts taking a leading role in defining its scope. Is this
involvement by the courts justified? Technically the courts are not to
assess the particular application of privilege. According to Justice (now
Chief Justice) McLachlin in Donahoe, when a matter falls within the
“necessary sphere of matters without which the dignity and efficiency of the
House cannot be upheld” the courts will not inquire as such questions fall
within an Assembly’s exclusive jurisdiction. So the court’s role is
jurisdictional in nature.
The vast majority of privilege issues
do not come before the courts. Questions of privilege raised by a Member about
some action taken by another Member, Minister or department that relate to a
proceeding in Parliament are dealt with by the respective House or Assembly and
by the Speaker in the first instance. However, when someone who is
outside the Assembly, or does not play a role in the proceedings of parliament,
is affected by something the Assembly has done then the matter may end up in
court. Donahoe was such a situation. In recent years
privilege has been argued before the courts in cases concerning the
jurisdiction of Human Rights Commissions with respect to Assemblies, wrongful
dismissal actions, insurance schemes for Members, language of broadcasting and
defamation.
Apart from challenges to parliamentary
privilege of an institutional nature (e.g. the courts), rapidly changing
technologies may force a re-examination of its application. For instance,
is it conceivable that some day Members may participate in proceedings in an
Assembly by computer? How would privilege apply to a virtual Assembly or
committee situation? While some may call this “heresy” it is not beyond
the realm of possibility. This raises the question of the
extra-territoriality of the application of parliamentary privilege in the sense
that a participant in a “proceeding in Parliament” could be someone who is
outside the jurisdiction of the province, territory or country. It may be that
someone far beyond the borders could be up to electronic mischief which could
affect a Member or the proceedings. Admittedly, these situations can
occur now to some extent but the adoption of new technologies may bring these
issues to the fore. This could lead to some interesting, if not exciting,
developments to determine the application of ancient doctrines to the technological
revolution. There may be much to be said for old wine in new bottles.
The doctrine of parliamentary privilege
is alive and well in Canada today. It has been confirmed by the highest
court in the country as part of the Constitution of Canada. The
protections provided to Members and Assemblies are perhaps on a firmer footing
than even in Britain where the most fundamental of privileges, freedom of
speech, is being tested against the European Convention on Human Rights. The
fact that the application of parliamentary privilege is being actively raised
in the courts reflects its dynamic nature in modern times although this role
for the courts may not please parliamentary purists. Privilege is not a relic
of an ancient past kept in someone’s trunk never to be brought out.
We have now had the opportunity of
living with the Supreme Court of Canada’s decision in Donahoe for 10
years. During that time, one might think that the task of defining the
scope of parliamentary privilege has been the preserve of the courts, yet the
rights and immunities are ostensibly for Assemblies and their members. Perhaps
it is time for the Assemblies to reoccupy the field and comprehensively examine
the nature and scope of parliamentary privilege. A review in Australia by a Joint
Select Committee on Parliamentary Privilege led to that country’s Parliamentary
Privileges Act 1987. A joint committee of the House of Commons and House of
Lords issued a comprehensive report on parliamentary privilege in 1999 which
recommended, among other things, a codification of privilege. While I am not
suggesting that privileges be legislated, a review could at least examine that
possibility.
As with most things Canadian, it would
be a challenge to find an appropriate body to conduct such a review. Of course,
one or both Houses of Parliament could establish some committee or joint
committee. If provinces and territories also established committees, it could
result in there being 15 reports (10 provinces, 3 territories, the House of
Commons and Senate). Perhaps the CPA Regional body could play a leading
role with representatives and staff from different jurisdictions across
Canada. Canadians are not without ingenuity when it comes to the
challenges presented by our federal nature.
Whatever mechanism legislators choose,
it seems time to reoccupy the field so that the courts can be informed by the
views of legislators on the modern day applications of parliamentary privilege
and that Canadians can come to appreciate the relevance of these ancient rights
and immunities as we proceed into the 21st century.