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Legislature - Privilege (2). Canada (Attorney General) v. Power
In Canada (Attorney General) v. Power (SCC, 2024) the Supreme Court of Canada re-considers and confirms [the previous case was Mackin (SCC, 2002)] whether and how the Crown can be liable for Charter damages for passing unconstitutional legislation.
Here the court considers 'parliamentary privilege', a mixture of "privileges, immunities and powers enjoyed by the Senate, the House of Commons and provincial legislative assemblies":(5) Constitutional Principles
[47] Canada argues that anything less than absolute immunity is inconsistent with three longstanding and foundational constitutional principles: parliamentary sovereignty, the separation of powers, and parliamentary privilege. Mr. Power responds that these principles do not necessitate absolute immunity and, moreover, that such immunity is inconsistent with other foundational constitutional principles, including constitutionalism and the rule of law. Each of these principles inform the separation of powers. We will briefly consider each in turn, before addressing the parties’ substantive submissions later in the analysis.
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[51] Parliamentary privilege plays an essential role in our democratic and constitutional order by allowing legislative officials to carry out their function, including vigorously debating laws and holding the executive to account (Chagnon v. Syndicat de la fonction publique et parapublique du Québec, 2018 SCC 39, [2018] 2 S.C.R. 687, at paras. 1 and 20-21; New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), 1993 CanLII 153 (SCC), [1993] 1 S.C.R. 319, at p. 354).
[52] This Court has characterized 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” (Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667, at para. 29; see also J. P. J. Maingot, Parliamentary Privilege in Canada (2nd ed. 1997), at pp. 14-15). Courts cannot review conduct within an area of parliamentary privilege, even for compliance with the Charter (New Brunswick Broadcasting, at p. 384). The sphere of activity for which privilege is claimed must therefore be closely scrutinized, and it will only receive protection if it is closely and directly connected with the fulfillment by the assembly or by its members of their functions as a legislative and deliberative body (Chagnon, at para. 27; Vaid, at para. 46).
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[84] Third, courts can respect parliamentary privilege when applying the limited immunity threshold. Parliamentary privilege provides the legislature with the tools to execute its core functions. It operates by “shielding some areas of legislative activity from external review” (Chagnon, at para. 1). For example, it shields against legal proceedings for what was said during debate, giving members of the legislature the freedom of speech necessary to carry out their law-making power without fear of liability. Parliamentary privilege also protects against the compellability of certain types of evidence, discussed below, such as the testimony of sitting members of Parliament (Vaid, at para. 29). The protection of these processes is fundamental to Canada’s constitutional structure and the functioning of our democracy. Parliamentary privilege cannot be subordinated or diminished by other parts of the Constitution.
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[87] We reject Canada’s suggestion that recognized categories of parliamentary privilege extend to bar external review of every stage in the law-making process, and of all speech and all conduct by government officials or Ministers related to the law-making process, including their unspoken motivations. Courts must be careful to avoid enlarging recognized categories of privilege in response to broad or vague assertions of privilege, especially in the context of an alleged Charter rights violation (see, e.g., M.-A. Roy, “Le Parlement, les tribunaux et la Charte canadienne des droits et libertés: vers un modèle de privilège parlementaire adapté au XXIe siècle” (2014), 55 C. de D. 489, at pp. 512, 517 and 521). For example, we do not view parliamentary privilege over freedom of speech in Parliament or control over legislative proceedings as inherently extending to government officials, including public servants acting in an executive capacity, involved in policy development and advisory roles related to the preparation of legislation. The concern is not with the nature of the official, but with the breadth of state conduct implicated by this suggestion. Canada’s broad conceptualization of parliamentary privilege is not known in Canadian law, and is not necessary to protect Parliament’s constitutional role. Nor has Canada demonstrated that the scope of the privilege it invokes is inexorably supported under the strict necessity test. For this reason, we fundamentally disagree with the scope of parliamentary privilege asserted by our colleagues.
[88] This Court has emphasized that parliamentary privilege must not be extended beyond the scope necessary to protect the legislature’s core democratic functions (Chagnon, at para. 25; Vaid, at para. 41). In both Vaid and Chagnon, this Court rejected claims of parliamentary privilege, recognizing that the scope of each category of privilege must be carefully scrutinized, in part on the basis that the matters protected by the claimed privilege cannot be externally reviewed, including by courts on Charter grounds. In Vaid, this Court held that the parliamentary privilege to control parliamentary proceedings did not extend so far as to preclude a human rights claim on the basis of discrimination by the chauffeur to the Speaker of the House of Commons. In Chagnon, this Court held that the parliamentary privilege to either manage employees or to exclude strangers from the National Assembly does not prevent judicial review of the dismissal of security guards employed by the National Assembly. Because of its inherent nature, parliamentary privilege means that its existence and scope must be strictly anchored to its rationale, delimited by the purposes it serves. Such an approach helps to reconcile the privilege with the Charter, by ensuring that it is only as broad as is necessary for the proper function of a constitutional democracy.
[89] A limited immunity reconciles the importance of parliamentary privilege with the Charter by ensuring that the privilege is no broader than is justified for a functioning constitutional democracy. In this respect, we agree that “parliamentary privilege, like parliamentary institutions themselves, must operate within — and never trump — the constitutional framework from which those bodies have emerged, and upon which they depend for their lawful authority and powers. In a country respectful of the rule of law, the courts must continue to maintain the supremacy of constitutional norms” (W. J. Newman, “Parliamentary Privilege, the Canadian Constitution and the Courts” (2008), 39 Ottawa L. Rev. 573, at p. 609).
[90] We also note that this Court has made clear that privilege claims should not be adjudicated “at too high a level of generality” (Vaid, at para. 51). As Mr. Power submits, “[i]ssues regarding the admissibility of parliamentary statements cannot be decided in the abstract” (R.F., heading of para. 94). An assertion of privilege must be particularized in the circumstances of the claim.
[91] To be clear though, parliamentary privilege may prevent claimants from adducing certain types of evidence relating to the legislative process. In this way, parliamentary privilege may limit a claimant’s practical ability to satisfy the threshold in a given case. Indeed, it may well be that a claimant will not be able to lead any evidence. But this possibility does not foreclose the availability of such a cause of action in principle. While a claimant obviously cannot, for example, subpoena members of Parliament to establish a claim for damages, the claimant could lead other evidence related to the parliamentary process and relevant to the claim. There are many kinds of legislative documents routinely relied upon by courts in the context of public law litigation. For example, in Brazeau, Sharpe and Juriansz JJ.A. relied on government memoranda and reports, public records and social science and expert reports in assessing a s. 24(1) claim for damages (paras. 74-86). Thus, while it is beyond question that the conduct and speech protected by parliamentary privilege is not subject to review under the Charter by the judiciary (New Brunswick Broadcasting, at p. 384), we do not agree that parliamentary privilege inherently precludes Charter damages for unconstitutional legislation.
[92] It does not improperly undermine parliamentary privilege for the courts, engaged in a proper judicial task, to examine evidence and adjudicate an assertion of privilege in the context of a claim for damages. Courts regularly assess such evidence, including Hansard, in determining the background and purpose of legislation under a s. 1 analysis (see, e.g., R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295; R. v. Morgentaler, 1993 CanLII 74 (SCC), [1993] 3 S.C.R. 463, at p. 484; R. v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485, at para. 31; R. v. Sharma, 2022 SCC 39, at paras. 88-90). Indeed, this Court has in other contexts assessed whether the legislature acted in good faith in enacting a law (see, e.g., Libman v. Quebec (Attorney General), 1997 CanLII 326 (SCC), [1997] 3 S.C.R. 569, at para. 63; Ell v. Alberta, 2003 SCC 35, [2003] 1 S.C.R. 857, at paras. 3 and 38), or whether the state had actual or constructive knowledge of the unconstitutional effects of a law (Canadian Council for Refugees v. Canada (Citizenship and Immigration), 2023 SCC 17, at para. 114). Granted, the purpose of the review may be different in a claim for Charter damages. But these examples reveal that the judicial assessment of the nature of legislation and Parliament’s purpose or objective in enacting it can be accomplished without violating parliamentary privilege. . 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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