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Immunity - Legislative (2). Resler v. Anglin
In Resler v. Anglin (SCC, 2026) the Supreme Court of Canada dismissed a defendant's SCC appeal, this brought against an Alberta CA ruling that allowed an appeal where the Alberta QB struck the plaintiff's "amended statement of claim in its entirety, finding that it amounted to an abuse of process, disclosed no reasonable cause of action and, in any case, the allegations had no reasonable chance of success given Resler’s common law and statutory immunities".
Here the court considers 'statutory immunity' (aka 'legislative immunity'), which can bar the court from adjudicating certain legislative matters - and which is discerned by statutory interpretation (here examining an Alberta election statute):(4) The Election Act Does Not Preclude Civil Claims for Acts Performed in Bad Faith
[56] Resler submits that he is also protected against a civil claim by the statutory immunity provided by s. 5.1(1) of the Election Act. Resler further submits that s. 5.1(1) prevents courts from examining issues relating to the integrity or fairness of an election outside of the Election Act’s controverted elections provisions. I disagree. It is not disputed that Anglin alleges acts performed in bad faith, and as I will explain, the Election Act leaves the door open to such acts.
[57] The determination of whether Resler benefits from a statutory immunity from Anglin’s claim requires the application of the modern approach to statutory interpretation, in this case, of the Election Act. This approach involves discerning legislative intent by reading the words of a provision in their entire context and in their grammatical and ordinary sense harmoniously with the statute’s scheme and objects (Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21, citing E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87; see also Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26). A crucial implication of this approach is that consequences arising from a statutory provision that are consistent with the purpose and scheme of the statute are presumed to have been intended by the Legislature (R. v. Wolfe, 2024 SCC 34, at para. 106, per Moreau J., dissenting).
[58] Starting with an analysis of the text, s. 5.1(1) of the Election Act provides:5.1(1) No proceedings lie against the Chief Electoral Officer or a returning officer, or against a person acting for or under the direction of the Chief Electoral Officer or a returning officer, for anything done, or omitted to be done, in good faith in the exercise or performance or the intended exercise or performance of a power, duty or function under this Act, the Election Finances and Contributions Disclosure Act, the Alberta Senate Election Act, the Citizen Initiative Act or the Recall Act. Section 5.1(1) extends immunity from any proceedings to the CEO for anything done or omitted to be done “in good faith”. The Election Act itself therefore leaves a door open to civil proceedings where bad faith is alleged. Had the Legislature intended that all election-related claims be subsumed in the Election Act’s provisions, the reservation contained in s. 5.1(1) would not have been included.
[59] It should be noted that the limited immunity contained in s. 5.1(1) differs from grants of full immunity to public officers in other statutes. For example, in Ernst v. Alberta Energy Regulator, 2017 SCC 1, [2017] 1 S.C.R. 3, the Court considered the immunity clause in s. 43 of the Energy Resources Conservation Act, R.S.A. 2000, c. E-10. In that case, the complainant filed a claim against the Alberta Energy Regulator (“Board”) for breaching her right to freedom of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms. However, s. 43 of the Energy Resources Conservation Act provides that:43 No action or proceeding may be brought against the Board or a member of the Board or a person referred to in section 10 or 17(1) in respect of any act or thing done purportedly in pursuance of this Act, or any Act that the Board administers, the regulations under any of those Acts or a decision, order or direction of the Board. The Court confirmed the striking of the claim for Charter damages as it was plain and obvious that s. 43, on its face, barred the claim, since it expressly provides an absolute and unqualified immunity for the Board and its members, as long as they act in pursuance of the Act.
[60] Another example of an absolute immunity clause is Article 29 of the Convention for the Unification of Certain Rules for International Carriage by Air, 2242 U.N.T.S. 309 (“Montreal Convention”), part of Canadian federal law by virtue of the Carriage by Air Act, R.S.C. 1985, c. C-26. This Court considered the clause in Thibodeau v. Air Canada, 2014 SCC 67, [2014] 3 S.C.R. 340, in the context of claims arising from a breach of an airline’s obligation to provide services in French under the Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.). The Montreal Convention includes a liability scheme whereby Articles 17 to 19 establish the liability of the air carrier in cases of accidents causing death or bodily injury to a passenger, destruction, loss or damage to baggage or cargo, and for damage occasioned by delay, and Article 29 provides that,[i]n the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable. The Court found that the liability scheme barred the claim for damages because the text and purpose of these provisions, particularly Article 29, make it clear that they provide an exclusive and uniform set of rules. The scheme therefore barred resort to other bases for liability.
[61] Unlike s. 5.1(1) of the Election Act, neither of these examples involves a statutory immunity limited to actions carried out in good faith. Simply put, the Legislature could have provided for full and absolute immunity, but chose not to.
[62] It can therefore be inferred from the text of s. 5.1(1) that its immunity does not apply to acts or omissions performed in bad faith in the exercise or performance of Resler’s duty or function under the Election Act and the other statutes mentioned in the provision. The textual analysis maxim of implied exclusion, expressio unius est exclusio alterius, is a form of reasoning that enables a court to discern legislative intent based on the notion that expressing one thing implies the exclusion of another (R. Sullivan, The Construction of Statutes (7th ed. 2022), at p. 247). I find that the explicit reference to “good faith” necessarily implies that “bad faith” is excluded from the immunity clause. . Jama v. The Speaker
In Jama v. The Speaker (Div Court, 2024) the Divisional Court grants a motion to dismiss/quash a JR, here on the rarely-used grounds of 'parliamentary privilege' [though it may be better characterized as an 'immunity' (see para 28), and I am categorizing it as that; 'privilege' is more accurately used as an evidence prohibition]:[2] The law is well-settled. Courts have no jurisdiction to review matters that fall within parliamentary privilege, including review under the Charter of Rights and Freedoms. As a matter of the constitutional separation of powers, those matters are within the exclusive purview of the Legislative Assembly.
[3] The relief sought in this application is precluded by parliamentary privilege, including the categories of the privilege regarding control over debates and proceedings in the Legislative Assembly and disciplinary authority over Members of the Legislative Assembly. This Court has no jurisdiction for the reasons set out below. The applicant’s proper course of action was to pursue a remedy at the Legislative Assembly.
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[20] The main issue is whether or not the moving parties have shown that the subject matter of this application, including the motion put forward and debated in the Legislative Assembly, and the Legislative Assembly’s censure decision, fall within parliamentary privilege and are therefore outside the jurisdiction of the courts.
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Analysis
[23] The Supreme Court of Canada and the Ontario Court of Appeal have confirmed the long-standing general principles of parliamentary privilege. The Supreme Court summarized key principles in Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667 and Chagnon v. Syndicat de la fonction publique et parapublique du Québec, 2018 SCC 39, [2018] 2 S.C.R. 687. The Court of Appeal has addressed that jurisprudence in the more recent cases of Duffy v. Canada (Senate), 2020 ONCA 536 and Alford v. Canada (Attorney General), 2024 ONCA 306.
[24] As put by the Court of Appeal in Duffy, at para. 1: “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 [citing Vaid, at para. 4].”
[25] “In Canada, the principle has its roots in the preamble to our Constitution Act, 1867 which calls for ‘a Constitution similar in Principle to that of the United Kingdom’” where the privilege traces back to at least the U.K. Bill of Rights of 1689: Vaid, at para. 21. In Ontario, these principles are also recognized in s. 52.1(1) of the Legislative Assembly Act, R.S.O. 1990, c. L. 10, which affirms that the Assembly has the same privileges as the House of Commons in the United Kingdom as of 1867.
[26] The privilege is key to maintaining the separation of powers between the legislature and the courts: Vaid, at paras. 4, 20-21. It “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’": Duffy, at para. 1, citing Chagnon, at para. 1.
[27] “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”: Duffy, at para. 35, citing Vaid, at paras. 29(9), 34; Chagnon, at paras. 19, 24; New Brunswick Broadcasting, 1993 CanLII 153 (SCC), [1993] 1 S.C.R. 319, at pp. 350, 382-84; Canada (Board of Internal Economy) v. Boulerice, 2019 FCA 33, [2019] 3 F.C.R. 145, at para. 48, leave to appeal refused, [2019] S.C.C.A. No. 103.
[28] When parliamentary privilege applies, it deprives the courts of jurisdiction over the privileged matter and confers an immunity from judicial review: Duffy, at paras. 1, 35 citing Vaid, at para. 4; Chagnon, at para. 19; New Brunswick Broadcasting, at p. 342.
[29] The court cannot review the exercise of parliamentary privilege, even on Charter grounds. Where the privilege applies, the legislative body holding the privilege has the exclusive competence to adjudicate an alleged breach of the Charter: Duffy, at para. 110.
[30] The privilege is “just as much part of our fundamental constitutional arrangements as the Charter itself. One part of the Constitution cannot abrogate another part of the Constitution”: Vaid, at para. 30, citing New Brunswick Broadcasting.
[31] “In matters of privilege, it would lie within the exclusive competence of the legislative assembly itself to consider compliance with human rights and civil liberties”: Vaid, at para. 30.
[32] The privilege recognizes Parliament or the legislature’s “exclusive jurisdiction to deal with complaints within its privileged sphere of activity": Duffy, at para. 35, quoting Vaid, at paras. 4, 29(9) and 30, New Brunswick Broadcasting, at pp. 383-84 and Boulerice, at para. 55.
[33] Parliamentary privilege is not restricted to matters that take place inside the legislature. The legislature also has the power to impose rules and sanctions pertaining to conduct that occurs outside their chambers: Harvey v. New Brunswick (Attorney General), 1996 CanLII 163 (SCC), [1996] 2 S.C.R. 876, at para. 67-68, per McLachlin J. as she then was; Michaud v. Bissonnette, 2006 QCCA 775, at paras. 33-6, 39, citing Vaid, at paras. 21, 29(10) and New Brunswick Broadcasting, at p. 385; Saunders v. Nunatsiavut Assembly, 2022 NLSC 142; Zundel v. Boudria (1999), 1999 CanLII 2190 (ON CA), 46 O.R. (3d) 410 (C.A.), at paras.16-18.
[34] The threshold issue for the court is whether the matter falls within the privilege. That is the issue on these motions.
[35] Parliamentary privilege does not extend to everything a legislative assembly might do – it attaches to specific activities: Vaid, at para. 29. The role of the courts is limited to determining the existence and scope of “categories” of parliamentary privilege. Once the court has recognized a category that is privileged, the court has no jurisdiction to deal with the related conduct. The court must withdraw from any further consideration of the matter: Duffy, at para. 1; Vaid, at para. 4; Chagnon, at para. 19.
[36] This application seeks to judicially challenge a decision adopted by the Legislative Assembly imposing parliamentary discipline on a Member of the Assembly (the censure of the applicant) arising from a motion brought and debated before the Legislative Assembly. The moving parties rely on several recognized categories of parliamentary privilege. To decide the motions, we need only focus on two: control over debates and proceedings and disciplinary authority over Members of the Legislative Assembly.
[37] In Vaid, at para. 29, the Supreme Court set out the following accepted principles that apply to the court’s analysis of whether the privilege applies in this case:(i) there are a number of categories (or spheres of activity) that have been recognized as covered by the privilege, including the control over debates and proceedings and disciplinary authority over members;
(ii) where the existence of a category for which privilege is claimed is put at issue, the court must determine whether that category continues to be necessary – that is, a matter without which the dignity and efficiency of the legislature cannot be upheld;
(iii) necessity must be read broadly and linked to the autonomy required by legislative assemblies;
(iv) the court’s approach to the question of whether a category is necessary may differ at the Federal and provincial level, as discussed below; and,
(v) the claimant of parliamentary privilege has the onus of establishing its existence and scope and, if required, its necessity. [38] The applicant puts forward submissions about the merits of the censure, alleging bad faith and noncompliance with statutes and the Charter. The interveners also focus to a significant extent on the merits and specifics of Motion 19 and the resulting censure. However, as put by the Court of Appeal in Duffy, there is “no support for [the] contention that the rule of law permits the courts to scrutinize the legality of conduct” if that conduct is protected by parliamentary privilege: Duffy, at para. 82.
[39] Once the category is established as covered by the privilege, it is for the legislature to determine whether the exercise of the privilege is necessary or appropriate in a particular case, not the court: Vaid, at para. 29. The courts have “no jurisdiction to adjudicate the exercise of any matter falling within the scope of the privilege”: Duffy, at para. 36, citing Vaid, at paras. 40-41, 47-48; Chagnon, at paras. 2, 32; and New Brunswick Broadcasting, at pp. 350, 384-85.
[40] The starting point is not an examination of the merits of the censure, quite the contrary. The starting point is to determine the existence and scope of relevant categories of parliamentary privilege. If the motion and censure fall within the privilege, it is not appropriate to go further and consider its exercise in this case.
[41] Following the roadmap in Vaid, we begin with the question of whether the categories relied upon have been recognized in prior jurisprudence. There is no doubt that both control over debates and proceedings in the legislature and disciplinary authority over members of the legislature are established categories of parliamentary privilege: Vaid, at para. 29; Harvey, at paras. 64, 74, cited with approval in Vaid, at para. 28; New Brunswick Broadcasting, at pp. 344, 379; Chagnon, at para. 31; Duffy, at paras. 40-43, 58.
[42] Moving to the need to show necessity, the first question is whether the categories have already been authoritatively established, which they have been as set out above. There is a potential difference between the analysis depending on whether it relates to the federal or provincial level. At the federal level, where the category has been authoritatively established, nothing further is required to show necessity. At the provincial level, the court may also be required to consider whether the category continues to be necessary to the functioning of the legislative body in the contemporary context: Duffy, at para. 33; Vaid, at para. 29(6); Chagnon, at para. 31.
[43] We proceed on the basis that even where the category has been established historically, as is the case here, the category must also be necessary in the contemporary context.
[44] We agree with the submissions of the CCLA that parliamentary privilege and the resulting immunity must not be described in an overly broad manner, relying on Vaid. However, the Supreme Court in Vaid expressly held, at para. 29(7), that the test for necessity should be “read broadly” and that the “time-honoured test” is what the “dignity and efficiency” of the legislature require.
[45] The applicant submits that Motion 19 and the resulting censure are not necessary in the contemporary context. Again, that is the wrong question. The question is not whether the specific activity complained of is necessary. Rather, the question is whether the categories of privilege relied on – control of debates and proceedings in the legislature and disciplinary authority over members of the legislature – are still necessary.
[46] The applicant relies on Chagnon, which is an employment case about the dismissal of security guards. 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. Chagnon did not involve either a motion before the legislature or the discipline of an MPP. The majority of the Court concluded that the dismissal of security guards was not within the privilege and could be addressed under ordinary labour relations law.
[47] As set out in Chagnon, the necessity test “demands that the sphere of activity over which parliamentary privilege is claimed be more than merely connected to the legislative assembly’s functions. The immunity that is sought from the application of ordinary law must also be necessary to the assembly’s constitutional role”: at para. 30. The Court found that previously recognized categories of the privilege, including control over debates and proceedings and disciplinary authority over members, served as examples of matters that met this requirement.
[48] To be necessary, control over debates and proceedings and disciplinary authority over members 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; Chagnon, at paras. 29, 31.
[49] Looking first at control of debates and proceedings, the applicant focuses on the actions of the Speaker, in allowing debate and a vote on Motion 19, submitting that to do so was contrary to the rule of law. The applicant does not put forward an argument that it is no longer necessary for a legislative assembly to have control over debates and proceedings. That is the question. The need for that control was expressly recognized as far back as 1689 and is still central to the needed autonomy today. As put in Vaid, at para. 7, a legislature without control over its own procedure would be unable to get their job done. As recently put by the Court of Appeal in Alford, at para. 46, it is fundamental that the legislature control its own procedures.
[50] The category of control of debates and proceedings remains necessary. As the Supreme Court noted in Vaid, at para. 20, external intervention would inevitably create delays, disruption, uncertainties and costs which would hold up the legislature’s business. That would be unacceptable.
[51] In this case, the applicant asks this Court to tell the Speaker not to permit a motion, debate and vote. Those are matters within this category of parliamentary privilege and not within the jurisdiction of this Court.
[52] Moving to the category of disciplinary authority, it too is a category with long-standing and repeated recognition at the Supreme Court of Canada, including in Vaid and Chagnon. Its continued importance is confirmed in the Duffy decision of the Court of Appeal. In that case, the appellant alleged that necessity be shown even at the federal level. The Court of Appeal disagreed but went on to hold that if it had been a requirement, the categories at issue (including parliamentary proceedings and the discipline of members) continued to meet the necessity test. The Court of Appeal found that each category helped preserve the Senate’s independence and promotes the workings of a representative democracy: at para. 107. The Court found that otherwise the Senate’s autonomy and its freedom to do its work with dignity and efficiency would be undermined: at para. 107. The same principles apply to the work of the Legislative Assembly.
[53] The applicant submits that her statements on X are not within parliamentary privilege because she made the statements outside of the legislature (even though she captioned the post by referring to her role as a politician). However, the privilege is not confined to regulating conduct within the legislature or imposing sanctions for statements made within the legislature: Michaud, at paras. 33-6, 39, citing Vaid, at paras. 21, 29(10) and New Brunswick Broadcasting, at p. 385; Saunders, at para. 90-91, citing Harvey, at para. 67; Zundel, at paras. 16-18.
[54] While it is not necessary to rely on it in this case, there is another sphere of activity that is protected by parliamentary privilege, specifically freedom of speech, including a legislative assembly denouncing remarks that its members collectively find unacceptable: Michaud, at paras. 32-6, 39, citing Vaid, at paras. 21, 29(10) and New Brunswick Broadcasting, at p. 385.
[55] The applicant submits that her conduct was not unlawful and that she complied with the Legislative Assembly Act, R.S.O. 1990. c. L.10. and the Members Integrity Act, 1994, S.O. 1994, c. 38. The Legislative Assembly Act expressly affirms the parliamentary privileges at issue here. The Members Integrity Act permits the use of social media but it not a comprehensive code that expressly waives the parliamentary privileges.
[56] The applicant further submits that before she could be censured, there must be an investigation and that her conduct outside the Legislative Assembly would need to be criminal or corrupt before any action could be taken. These submissions seek to suggest that the authority to sanction is limited to the criminal activity that the Legislative Assembly may inquire into as set out in s. 46 of the Legislative Assembly Act. However, that authority is in addition to the parliamentary privileges, not a limitation on those privileges.
[57] The applicant further relies on the impact on her constituents. She submits that they are harmed by the censure if the Speaker does not recognize her. In Vaid, at paras. 29 and 30, the Supreme Court noted that courts are apt to look more closely at cases in which claims to privilege have an impact on persons outside the legislative assembly. We have taken this into account, but it does not displace the privilege. At para. 30, the Supreme Court noted that in New Brunswick Broadcasting the press freedom guaranteed by s. 2(b) of the Charter did not prevail over parliamentary privilege. The Court went on in para. 30 to find that the consequences of a finding that an area of parliamentary activity is covered by privilege is a matter for the legislature.
[58] As held in Duffy v. Senate of Canada, 2018 ONSC 7523 (“Duffy ONSC”), at para. 46, legislatures “may discipline members for behaviour that, in their view, undermines their fundamental integrity”. That authority is “necessary to the dignity, integrity and efficient functioning of the legislature: Duffy ONSC, at para. 47.
[59] In this case, the applicant seeks to challenge a censure under which the Speaker may not recognize the applicant. Bearing this context in mind, the Supreme Court put forward an apt example in Vaid, ruling that it “would be intolerable, for example, if a member of the House of Commons who was overlooked by the Speaker at question period could invoke the investigatory powers of the Canadian Human Rights Commission with a complaint that the Speaker’s choice of another member of the House discriminated on some ground prohibited by the Canadian Human Rights Act, or to seek a ruling from the ordinary courts that the Speaker’s choice violated the member’s guarantee of free speech under the Charter”: Vaid, at para. 20.
[60] The Supreme Court underscored that these “are truly matters ‘internal to the House’ to be resolved by its own procedures. Quite apart from the potential interference by outsiders in the direction of the House, such external intervention would inevitably create delays, disruption, uncertainties and costs which would hold up the nation’s business and on that account would be unacceptable even if, in the end, the Speaker’s rulings were vindicated as entirely proper”: Vaid, at para. 20.
[61] The applicant relies on Chagnon, where the Court found that a purposive approach to parliamentary privilege helps to reconcile the privilege and the Charter rights of non-members by ensuring that the privilege is “only as broad as is necessary” for the proper functioning of our parliamentary democracy. This approach does not displace the necessity that a legislative assembly have control over its proceedings and disciplinary authority over its members. Those spheres of activity continue to be necessary in order that the legislature have the autonomy needed to perform its constitutional functions. They are matters without which the dignity and efficiency of the legislature cannot be upheld.
[62] The applicant further submits that her political speech outside the Legislative Assembly and her Charter right to freedom of expression should be addressed by this Court. This argument presumes that parliamentary privilege does not apply. If it does, the court does not have jurisdiction:(i) As put in Chagnon, at para. 24, “[j]udicial review of the exercise of parliamentary privilege, even for Charter compliance, would effectively nullify the necessary immunity this doctrine is meant to afford the legislature”: citing New Brunswick Broadcasting, at pp. 350 and 382-84; Vaid, at para. 29(9)).
(ii) As put in Vaid, at para. 30: “In matters of privilege, it would lie within the exclusive competence of the legislative assembly itself to consider compliance with human rights and civil liberties”.
(iii) As put in Duffy, at para. 110: “The Supreme Court has repeatedly held that where parliamentary privilege applies, the legislative body holding the privilege has the exclusive competence to adjudicate an alleged breach of the Charter.” [63] Once a claim to privilege is made out, the court must not inquire into the merits of its exercise: Vaid, at para. 47; Duffy, at para. 35-36. It will be for the legislature to do so: Vaid, at paras. 29(9), 48. Much of the applicant’s submission relates to the exercise of the privilege, including the specific terms of the censure.
[64] This application for judicial review proposes to examine the Legislative Assembly’s decision to allow Motion 19 to go forward, be debated, voted on and adopted, resulting in the censure disciplining the applicant. All the remedies sought in the application relate to those steps within the Legislative Assembly and their consequences.
[65] We conclude that the moving parties have met their high onus to show that the relief sought in this application is precluded by parliamentary privilege. As expressly observed in Vaid, these are truly matters internal to the Legislative Assembly, to be resolved by its own procedures. This Court does not have jurisdiction.
[66] This does not leave the applicant without remedies. However, the applicant must pursue remedies before the Legislative Assembly, not the courts: Vaid, at paras. 20, 29(9) and 30; Duffy, at para. 91. Further, as underscored by the Supreme Court of Canada, “while legislative assemblies are not accountable to the courts for the ways in which they exercise their parliamentary privileges, they remain accountable to the electorate”: Chagnon, at para. 24; see also, Duffy, at para. 92.
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