Evidence - Privilege - Legislative. Duffy v. Canada (Senate)
In Duffy v. Canada (Senate) (Ont CA, 2020) the Court of Appeal considers the rarely litigated issue of parliamentary privilege with respect to the Senate:
 Parliamentary privilege has been part of Canadian constitutional law since Confederation. The privilege, which is enjoyed by the Senate, the House of Commons, and the provincial legislative assemblies, helps maintain the constitutional separation of powers between the legislative, executive, and judicial branches of government and thus promotes the “constitutional equilibrium” of Canada’s democracy: Canada (House of Commons) v. Vaid, 2005 SCC 30,  S.C.R. 667, at para. 4. Parliamentary privilege does this by shielding certain areas of legislative activity from judicial or executive review, thereby giving “the legislative branch of government the autonomy it requires to perform its constitutional functions”: Chagnon v. Syndicat de la fonction publique et parapublique du Québec, 2018 SCC 39,  2 S.C.R. 687, at para. 1. When parliamentary privilege applies, it deprives the courts of jurisdiction over the privileged matter and confers an immunity from civil claims: Vaid, at para. 4; Chagnon, at para. 19.The court then considers as well:
General Principles of Parliamentary Privilege
 The late Professor Peter Hogg described parliamentary privilege as follows: “The federal Houses of Parliament and the provincial legislative assemblies possess a set of powers and privileges that are ‘necessary to their capacity to function as legislative bodies’. These powers and rights are known collectively as ‘parliamentary privilege’”: Peter W. Hogg, Constitutional Law of Canada, loose-leaf (Rel-No. 1 2014), 5th ed. (Toronto: Carswell, 2007), vol. 1, at §1.7, p. 1-13, citing New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), 1993 CanLII 153 (SCC),  1 S.C.R. 319, at p. 381, per McLachlin J. (as she then was) for the majority, and Warren J. Newman, “Parliamentary Privilege, the Canadian Constitution and the Courts” (2008) 39 Ottawa L. Rev. 573.
 Two of the leading Canadian cases on parliamentary privilege are Vaid and Chagnon. In Vaid, the Supreme Court held that parliamentary privilege did not prevent the Canadian Human Rights Tribunal from entertaining a workplace discrimination and harassment complaint brought against the Speaker of the House of Commons by his former chauffeur. In Chagnon, a majority of the Supreme Court held that parliamentary privilege did not prevent a labour arbitrator from adjudicating a union’s grievance of the decision of the President of the National Assembly of Québec to dismiss three of the Assembly’s security guards.
 In Vaid, Binnie J. defined parliamentary privilege as “the sum of the privileges, immunities and powers enjoyed by the Senate, the House of Commons and provincial legislative assemblies, and by each member individually, without which they could not discharge their functions”: Vaid, at para. 29(2) (citations omitted); see also Chagnon, at para. 19.
 Parliamentary privilege provides a legal exemption “from some duty, burden, attendance or liability to which others are subject”: Chagnon, at para. 19, citing J.P. Joseph Maingot, Parliamentary Immunity in Canada, 2nd ed. (Toronto: LexisNexis Canada, 2016), at p. 13; see also New Brunswick Broadcasting, at p. 378.
 Historically, parliamentary privilege developed in England in the seventeenth century “through the struggle of the House of Commons for independence from the other branches of government”, including the Crown and the judiciary, which had shown no hesitation to intrude into the workings of Parliament, such as by arresting and prosecuting members of Parliament for allegedly seditious words spoken in debate in the House: Chagnon, at para. 22; New Brunswick Broadcasting, at pp. 344-345.
 Parliamentary privilege was gradually accepted as forming part of the common law of England: New Brunswick Broadcasting, at pp. 344-345; Hogg, at §1.7, p. 1-14. It was also recognized in the Bill of Rights (U.K.), 1689, 1 Will. & Mar. Sess. 2, c. 2, which provides that “the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”: Vaid, at para. 21; Chagnon, at para. 22; and New Brunswick Broadcasting, at p. 345. Parliamentary privilege became part of Canadian law through the common law as being an inherent and necessary component of the legislative function of federal and provincial legislatures (so-called “inherent privileges”) and was constitutionalized through the preamble of the Constitution Act, 1867, which affirmed that Canada is to have “a Constitution similar in Principle to that of the United Kingdom”: see Vaid, at paras. 21, 29(3); Chagnon, at paras. 18, 23; and New Brunswick Broadcasting, at p. 377.
 There are, however, some significant differences between parliamentary privilege at the federal and provincial levels, each of which has a different constitutional basis: Vaid, at para. 29. At the federal level, s. 18 of the Constitution Act, 1867 gives Parliament the power to enact laws defining the privileges of the Senate and the House of Commons:
18. The privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada, but so that any Act of the Parliament of Canada defining such privileges, immunities, and powers shall not confer any privileges, immunities, or powers exceeding those at the passing of such Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the members thereof. Parliament exercised this power under s. 4 of the Parliament of Canada Act, R.S.C. 1985, c. P-1, which defines the privileges of the Senate and House of Commons by reference to the privileges of the U.K. House of Commons in 1867 and allows Parliament to expand those privileges by legislation provided that they do not exceed those of the U.K. House of Commons at the date of the enactment. Section 4 provides:
4. The Senate and the House of Commons, respectively, and the members thereof hold, enjoy and exercise
4. Les privilèges, immunités et pouvoirs du Sénat et de la Chambre des communes, ainsi que de leurs membres, sont les suivants :
(a) such and the like privileges, immunities and powers as, at the time of the passing of the Constitution Act, 1867, were held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom and by the members thereof, in so far as is consistent with that Act; and
a) d’une part, ceux que possédaient, à l’adoption de la Loi constitutionnelle de 1867, la Chambre des communes du Parlement du Royaume-Uni ainsi que ses membres, dans la mesure de leur compatibilité avec cette loi;
(b) such privileges, immunities and powers as are defined by Act of the Parliament of Canada, not exceeding those, at the time of the passing of the Act, held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom and by the members thereof.
b) d’autre part, ceux que définissent les lois du Parlement du Canada, sous réserve qu’ils n’excèdent pas ceux que possédaient, à l’adoption de ces lois, la Chambre des communes du Parlement du Royaume-Uni et ses membres.
 In Vaid, the Supreme Court described s. 4 of the Parliament of Canada Act as having “conferred on the Senate and House of Commons the full extent of the privileges permitted under the Constitution”: at para. 35. Thus, the “main body” of the parliamentary privileges of Parliament are “legislated privileges” (rather than “inherent privileges”) and which, unlike provincial legislative privileges, have an express constitutional underpinning in s. 18 of the Constitution Act, 1867: Vaid, at paras. 36-37; see also Boulerice, at paras. 51, 137; and Southam Inc. v. Canada (Attorney General), 1990 CanLII 8042 (FCA),  3 F.C. 465, 75 D.L.R. (4th) 289 (C.A.), at p. 479.
(c) Role in the separation of powers
 Parliamentary privilege forms an essential part of how Canada’s constitutional democracy maintains the fundamental separation of powers between the legislative, executive, and judicial branches of government: Vaid, at para. 21; Chagnon, at para. 21. Parliamentary privilege has been described as a “corollary to the separation of powers” because it helps protect the ability of the Senate, the House of Commons, and the provincial legislative assemblies to perform their constitutionally-assigned functions: British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia, 2020 SCC 20, at para. 66.
 Parliamentary privilege does so “[b]y shielding some areas of legislative activity from external review” and “[i]t grants the legislative branch of government the autonomy it requires to perform its constitutional functions”: Chagnon, at para. 1. The privilege is defined by “the degree of autonomy necessary to perform Parliament’s constitutional function”: by what is “necessary to protect legislators in the discharge of their legislative and deliberative functions, and the legislative assembly’s work in holding the government to account for the conduct of the country’s business”: Vaid, at para. 41.
(d) Two-step approach to federal parliamentary privilege
 The Supreme Court ruled in Vaid that a two-step approach applies when addressing questions of parliamentary privilege at the federal level:
• At the first step, the court asks whether the existence and scope of the claimed privilege have been authoritatively established, based on either Canadian or British precedent. If the existence and scope of the claimed privilege have been authoritatively established, the privilege must be accepted by the court, without further inquiry into the necessity of the privilege or the merits of its exercise in the particular case: Vaid, at paras. 37, 39; see also Boulerice, at paras. 6, 54, 56, 60 and 61.
• At the second step, the court asks whether the privilege claimed is supported as a matter of principle under a necessity test: the sphere of activity over which privilege is claimed must be “so closely and directly connected with the fulfillment by the assembly or its members of their functions as a legislative and deliberative body … 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”: Vaid, at para. 46; see also Chagnon, at paras. 29, 31.
 The claimant of parliamentary privilege has the onus of establishing its existence and scope and, if required, its necessity: Vaid, at paras. 5, 29(8) and 53; Chagnon, at para. 32.
(e) Impact on the court’s jurisdiction
 Parliamentary privilege is a rule of curial jurisdiction. The effect of a matter falling within the scope of parliamentary privilege is that its exercise cannot be reviewed by any external body, including a court: Vaid, at paras. 29(9), 34; Chagnon, at paras. 19, 24; New Brunswick Broadcasting, at pp. 350, 382-384; and Boulerice, at para. 54. Parliamentary privilege recognizes “Parliament’s exclusive jurisdiction to deal with complaints within its privileged sphere of activity”: Vaid, at paras. 4, 29(9) and 30 (emphasis in original); New Brunswick Broadcasting, at pp. 383-384; and Boulerice, at para. 55. The principles of parliamentary privilege are “a means of distinguishing areas of judicial and legislative body jurisdiction”: New Brunswick Broadcasting, at pp. 383-384. Parliamentary privilege thus provides an immunity from judicial review: New Brunswick Broadcasting, at p. 342.
 Although the courts have jurisdiction to determine the existence or scope of a claimed privilege, they have no jurisdiction to adjudicate the exercise of any matter falling within the scope of the privilege: Vaid, at paras. 40-41, 47-48; Chagnon, at paras. 2, 32; and New Brunswick Broadcasting, at pp. 350, 384-385.
(a) The Senate’s parliamentary privilege to discipline its members
 First, the Senate has an established parliamentary privilege to discipline its members.
 In Vaid, Binnie J. confirmed that “disciplinary authority over members” is an established category of parliamentary privilege that has “historically been considered to be justified by the exigencies of parliamentary work”: at paras. 29(10), 51. At para. 51, Binnie J. cited (among other authorities) Harvey v. New Brunswick (Attorney General), 1996 CanLII 163 (SCC),  2 S.C.R. 876, where McLachlin J. (as she then was), concurring with the majority in the result, affirmed that a provincial legislature’s power to disqualify from office a member convicted of an illegal practice under provincial elections legislation involves an exercise of parliamentary privilege, and is thus immune from judicial review: Harvey, at paras. 55, 89.
 In Harvey, McLachlin J. noted that “[t]he history of the prerogative of Parliament and legislative assemblies to maintain the integrity of their processes by disciplining, purging and disqualifying those who abuse them is as old as Parliament itself”: at para. 64. She affirmed the “historic privilege of the legislature to deny membership to those who disqualify themselves by crime, corruption or other misconduct”: at para. 74. A matter falling within the scope of this privilege “is a matter for the legislature, not the courts, to determine”: at para. 88; see also Boulerice, at paras. 95-100.
 Applying these principles to this case, I agree with the motion judge that the Senate’s acts in investigating Senator Duffy’s expenses as a senator, suspending him from the Senate, and taking other disciplinary measures regarding his compensation and benefits, all fall within the scope of the Senate’s established parliamentary privilege to discipline its members: at para. 63. The courts therefore have no jurisdiction to review the Senate’s grounds for exercising this privilege by investigating and disciplining Senator Duffy.
(b) The Senate’s parliamentary privilege to administer its internal affairs
 Second, the Senate possesses an established parliamentary privilege to administer its internal affairs, including by deciding how to allocate parliamentary resources for members’ allowances and benefits.
 In his leading text on parliamentary privilege in Canada, Parliamentary Immunity in Canada, Joseph Maingot, a former law clerk and parliamentary counsel to the House of Commons, writes that “[t]he privilege of control over its own affairs and proceedings is one of the most significant attributes of an independent legislative institution”: Maingot, at p. 166.
 In Boulerice, released after the motion judge’s decision, the Federal Court of Appeal accepted that the parliamentary privilege over internal affairs includes control over the allocation of parliamentary resources for members’ allowances and benefits. Noël C.J., writing for the court, ruled that the courts have no jurisdiction to judicially review decisions of the House of Commons’ Board of Internal Economy, which had found that certain members of Parliament had misused parliamentary funds and required them to repay those amounts: at para. 6. The Board was created in 1985 under the Parliament of Canada Act to govern “all financial and administrative matters respecting the House of Commons, its premises, its services and staff; and the members of the House of Commons: Parliament of Canada Act, s. 52.3; Boulerice, at para. 7. It has exclusive authority to opine on whether a member’s use of parliamentary funds is proper: Parliament of Canada Act, s. 52.6(1); Boulerice, at para. 11.
 Noël C.J. ruled that internal disputes about parliamentary funds are protected by an established category of parliamentary privilege relating to internal affairs, at para. 94:
[T]he House’s exclusive right to oversee and decide matters pursuant to internal rules governing the use made of funds and resources provided to Members of the House for the purpose of allowing them to perform their parliamentary functions … comes within the established category [of parliamentary privilege] relating to internal affairs. In so ruling, Noël C.J. canvassed the prior caselaw, including Villeneuve v. Legislative Assembly et al., 2008 NWTSC 41 and Filion c. Chagnon, 2016 QCCS 6146, aff’d, 2017 QCCA 630, both of which were cited by the motion judge in this case: at paras. 65-68.
 In Villeneuve, the Supreme Court of the Northwest Territories held that parliamentary privilege prevented the courts from reviewing whether the Legislative Assembly of the Northwest Territories’ Board of Management could withhold statutory allowances from a member of the Legislative Assembly who had made inaccurate statements about his place of residence. This issue was “truly internal to the legislature” and must be “free from review by the courts” in order to allow the legislative assembly to function “free from outside interference … as an independent branch of government”: at para. 34.
 In Filion, the Québec Superior Court held that parliamentary privilege prevented the courts from reviewing the decision of the Québec National Assembly to withhold part of the transitional allowance from a former member of the Assembly whom the Assembly found had claimed illegitimate expenses. The National Assembly’s decision was protected by its parliamentary privilege to regulate its internal affairs without outside interference: at para. 22.
 I agree with the conclusions in Boulerice, Villeneuve, and Filion. These decisions provide compelling persuasive authority supporting the established parliamentary privilege over internal disputes about parliamentary funds.
 I also agree with the motion judge’s conclusion that the impugned actions of the Senate fall within the scope of this privilege. In my view, the Senate has exclusive jurisdiction to administer its internal affairs in relation to the allocation of parliamentary resources for members’ allowances and benefits, including decisions on the propriety of Senator Duffy’s expenses.
 It follows, therefore, that the courts cannot review the validity of the investigations and reports by the CIBA, even though Senator Duffy alleges political interference with its Twenty-Sixth Report about the propriety of his expenses.
 As noted above, the CIBA is an internal parliamentary committee. It is constituted by the Parliament of Canada Act and its composition includes senators appointed by the Leader of the Government in the Senate and the Leader of the Opposition in the Senate: Parliament of Canada Act, s. 19.1(3). The CIBA’s functions include acting “on all financial and administrative matters” respecting “the Senate, its premises, its services and its staff” and “the members of the Senate”: s. 19.3. It is “subject to the rules, direction and control of the Senate”: s. 19.1(4). It has broad authority to make regulations about “the use by senators of funds, goods, services and premises” provided to them “for the carrying out of their parliamentary functions” and the “management of, and accounting for, by senators” of those funds: s. 19.5(1). The CIBA also has “exclusive authority” to determine whether any senator has properly used any resources provided to them for their parliamentary functions: s. 19.6(1).
 I agree with the motion judge that, based on the CIBA’s statutory mandate, it exercises functions “at the core of the Senate’s legislative powers”, which are therefore protected by parliamentary privilege, at para. 83:
CIBA’s exclusive power to allocate – and withhold – parliamentary funds and resources to any given senator is very much at issue in Senator Duffy’s lawsuit. That is because its decisions may be critical to a senator’s ability to perform their parliamentary functions adequately. In light of this, I conclude that CIBA exercises functions at the core of the Senate’s legislative powers. Finally, I agree with the motion judge’s conclusion that Senator Duffy’s claim asks the court to second-guess compensation and other financial decisions that “the Senate alone, through the CIBA, has exclusive authority to make”: at para. 88. Parliamentary privilege precludes the courts from doing so.
(c) The Senate’s parliamentary privilege over parliamentary proceedings
 Third, the Senate enjoys an established parliamentary privilege over proceedings before the Senate.
 In Vaid, Binnie J. affirmed that parliamentary privilege extends to “control by the Houses of Parliament over ‘debates or proceedings in Parliament’”, including “day-to-day procedure in the House”: at para. 29(10); see also Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40,  2 S.C.R. 765, at para. 37; and Boulerice, at paras. 104-108.
 The CIBA’s work as a Senate committee falls under “proceedings in Parliament”. As a “technical parliamentary term, ‘proceedings’ are the events and steps leading up to some formal action, including a decision, taken by the House in its collective capacity”: Maingot, at p. 74, citing C.J. Boulton, ed., Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 21st ed. (London: Butterworth-Heinemann, 1989), at p. 92. The Senate’s privilege over “proceedings in Parliament” thus encompasses the CIBA’s work in discharging its statutory mandate to act on “all financial and administrative matters” within the Senate. It includes the CIBA’s internal investigations about senators’ use of parliamentary funds in acting as senators, any report made by the CIBA based on those investigations, and the Senate’s decisions on whether or how to respond.
 I also agree with Noël C.J.’s observation in Boulerice that “the House’s exclusive right to regulate and oversee the use of parliamentary funds by Parliamentarians brings with it the exclusive right to decide how these rules are to be applied”: at para. 120. In my view, the Senate enjoys an equivalent privilege.
 Senator Duffy’s allegations about political interference in the CIBA’s investigation and findings and the Senate’s response in suspending him all target conduct falling within the established parliamentary privilege over proceedings in Parliament. I therefore agree with the motion judge that the courts have no jurisdiction to evaluate their propriety, fairness, or legality: at para. 92.
(d) The Senate’s parliamentary privilege over freedom of speech in the Senate
 Finally, the Senate benefits from an established parliamentary privilege over freedom of speech.
 The privilege over freedom of speech was recognized as long ago as 1689 in art. 9 of the U.K. Bill of Rights, and was affirmed by Binnie J. in Vaid, at paras. 29(10), 39. In New Brunswick Broadcasting, McLachlin J. stated that the privilege includes “immunity from civil proceedings with respect to any matter arising from the carrying out of the duties of a member of the House” through an “unwritten constitutional right … to speak freely in the House without fear of civil reprisal”: at p. 385.
 The free speech privilege applies not only to speech in the House of Commons and the Senate but also before their respective committees. As noted by Maingot, at p. 31:
Whatever freedom of speech applies in either House of Parliament also applies to committees of either House. Persons exercising the privilege of freedom of speech are accountable only to Parliament, as Maingot explains, at pp. 71-72:
When part of parliamentary business, therefore, whatever is said in the Senate or the House of Commons or in one of the committees is not actionable in the ordinary courts, whether or not it is said in good faith. [Footnotes omitted.]
While taking part in [proceedings in Parliament], officers of Parliament, Members of Parliament, and the public are immune from being called to account in the courts or elsewhere, save the Houses of Parliament, for any act done or words uttered in the course of participating, however false or malicious the act and however malicious the words might be; and any member of the public prejudicially affected is without redress.See also Ontario v. Rothmans et al., 2014 ONSC 3382, 374 D.L.R. (4th) 175, at paras. 9-20; Lavigne v. Ontario (Attorney General) (2008), 2008 CanLII 89825 (ON SC), 91 O.R. (3d) 728 (Sup. Ct.), at paras. 23, 47-55; Gagliano v. Canada (Attorney General), 2005 FC 576,  3 F.C.R. 555, at paras. 62-97, 108-111, aff’d, 2006 FCA 86, 268 D.L.R. (4th) 190; Canada (Deputy Commissioner, Royal Canadian Mounted Police) v. Canada (Commissioner, Royal Canadian Mounted Police), 2007 FC 564,  1 F.C.R. 752, at paras. 63-65; and Prebble v. Television of New Zealand Limited,  3 NZLR 1,  1 A.C. 321 (P.C.), at pp. 332-334.
 The parliamentary privilege of freedom of speech is directly engaged here. I agree with the motion judge that many of Senator Duffy’s allegations impugn exercises of free speech before the Senate and the CIBA: at para. 107. This includes, for example, Senator Duffy’s challenges to the Senate motion and the vote to suspend him from the Senate without benefits; the Senate’s decision to deny his request for reimbursement of his salary, living allowances, and pension accruals withheld while he was suspended, and to claw back funds found to have been inappropriately claimed as Senate expenses; the CIBA’s Twenty-Sixth Report as having been politically motivated; and the CIBA’s decision to deny his request for partial reimbursement of legal expenses and disbursements incurred in successfully defending the criminal charges against him. All these exercises of free speech in the Senate were part of the Senate’s parliamentary business. The courts therefore have no jurisdiction to adjudicate them.
. whether the privilege is defeated by the criminality of the conduct [paras 68-92],
. whether parliamentary privilege is subject to a 'necessity' principle such that it must be shown to be necessary to the function of the body (here the Senate) [paras 94-107],
. whether the Charter can be asserted against the Senate by the court, rather than by the Senate, as a co-constitutional body [paras 109-113], and
. whether the Senate had waived their parliamentary privilege [paras 115-123].