“…Proceedings in Parlyament ought not to be impeached or questioned in any Court…”
Article 9, Bill of Rights, 1689
Senator Duffy was found by the Senate to have made inappropriate expenditures. These included expenses for a secondary residence in Ottawa since he claimed his cottage-like property in Prince Edward Island as his primary residence. As a result of the finding of the finding of inappropriate expenditures and the charges, the Senate sought repayment of the expenses and suspended the Senator. The Senate also referred the matter to the police and Crown, who laid various fraud and breach of trust charges against the Senator. The charges were eventually dismissed. In the reasons for dismissing the charges the trial judge indicated that the Senator ”committed no prohibited act, violated no Senate rules and did not in all circumstances commit the actus reus of fraud.” Senator Duffy was then returned to his seat in the Senate.
Senator Duffy sought reimbursement of the amount of the claim, his allowance, pension accrual and his legal fees. The Senate did not respond to these requests. He then brought a civil action against the Senate seeking damages, claiming that the committee report and the resulting Senate decision to suspend him were “politically motivated, unconstitutional, procedurally unfair and contrary to his rights under the Canadian Charter of Rights and Freedoms.” The Senate responded by bringing a motion to dismiss the claim against it , relying on four recognized parliamentary privileges: administration of the Senate’s internal affairs; discipline of its own members; control of its own proceedings; and freedom of speech within parliament.
In her decision in Duffy v Senate of Canada and the Attorney General of Canada 2018 ONSC 7523. Justice Gomery accepted that the case against the Senate had to be dismissed on the bases of all four claimed privileges. The judge first provides an overview of the bases for privileges generally, and the manner in which the courts are to approach claimed privileges. She accepts and applies the Supreme Court’s analysis in Vaid v House of Commons, 2005 SCC 30 in which the courts can determine the existence, scope and extent of a parliamentary privilege, but not its exercise. In reviewing the existing jurisprudence, she also recognizes that at the federal level privileges are derived from two constitutional sources, the preamble of the Constitution Act 1867, and for which necessity must be demonstrated, and section 18 of that Act. Privileges derived from the Preamble require a demonstration that they are necessary for the proper functioning of the legislature. Privileges derived from section 18 and the legislation passed under it, such as in section 4 of the Parliament of Canada Act, will be recognized if proven to be in existence for the UK House of Commons at the time of confederation.
She then sets out how each of the four claimed privileges apply to the circumstances. Following the precedent of Harvey v NB  2 SCR 922, and earlier precedents she recognizes the Senate’s privilege to discipline its own Members, and accepts that the suspension was an exercise of this privilege.
Differing from the recent Federal Court decision Boulerice v Canada 2017 FC 942 (appeal to Federal Court of Appeal, A-332-17, heard November 14, 2018) Justice Gomery concludes that the role of the Senate Committee on Internal Affairs, Budgets and Administration is not merely administrative; rather, “its decisions may be critical to a senator’s ability to perform their parliamentary functions adequately” (para 83). Decisions of the CIBA to grant or withhold expenses therefore fall within the privilege of the Senate to manage its internal affairs.
The third privilege recognized is the privilege of a legislature to control its own proceedings, and the fact that “the existence of this privilege generally prevents courts from enforcing procedural constraints on the parliamentary process (Mikisew Cree First Nation v Canada 2018 SCC 40)”. As a result the court would not able to grant relief for failure of process including any failure to act fairly or in accordance with the Charter.
Finally the court examines the privilege of freedom of speech, both for senators and witnesses during proceedings. Since the words spoken during proceedings are protected by this privilege the judge strikes all paragraphs in the pleadings that make references to anything said in any proceeding of the Senate or its CIBA.
The judge concludes as follows:
I conclude that Senator Duffy’s legal claim against the Senate is based on actions and speech that fall squarely within the scope of established parliamentary privilege. The decision to suspend Senator Duffy is subject to the Senate’s privilege to discipline its members. The investigation of his living allowance and claims for reimbursement are protected by the Senate’s privilege to manage its internal affairs. The CIBA investigation and the decision to suspend Senator Duffy fall within the Senate’s privilege over its proceedings. As a result, this court has no role in judging their lawfulness or fairness. (para 119)
The allegations in Senator Duffy’s statement of claim about statements and reports in the Senate are furthermore subject to the Senate’s privilege over freedom of speech…As a result, all such allegations must be struck….There would be no point in granting Senator Duffy leave to amend his statement of claim, because there would be no way for him to assert his claim absent reference to privileged speech.
As a judgment on the application of specific privileges, that of Justice Gomery follows the analytical framework set by the Supreme Court. However, this analysis was not necessary and, as a result, the judge may have complicated the relationship between the courts and legislatures. Her judgment may lead some to believe that where a particular privilege cannot be fully proved to apply, or if there is no identifiable privilege engaged, the courts could review the decisions of a legislature This is not the case. Under no circumstances can a court review proceedings in Parliament or a legislature, regardless of whether one can prove that a particular privilege has been infringed.
The questions raised in this case are not merely questions of privilege with the analysis of necessity, scope and exercise that such questions require. These privileges rest on a more fundamental principle of constitutional architecture, the separation of powers and limits on the jurisdiction of the courts set out in Article 9 of the Bill of Rights, 1689. Although Justice Gomery cites this provision as part of the history of privilege, she fails to fully grasp its significance as a constitutional constraint on the jurisdiction of the courts. She only sees the provision as a “immunizing certain parliamentary activities from consideration by the courts” (para 24). The provision was intended to do more than this. It precludes any proceeding in Parliament from being questioned or impeached in any court.” This is a complete and absolute constitutional limit on the jurisdiction of the courts.
A finding that what was sought to be questioned or impeached buy Senator Duffy was a proceeding should have been the beginning and the end of the inquiry. There is no question of necessity nor of extent or scope that needs to be decided other than whether the matter under consideration was part of a proceeding. Senator Duffy was suspended by a decision of the Senate taken as part of its proceedings. This decision is not reviewable in the courts, whether or not there is a particular identifiable “privilege” to discipline by way of suspension or otherwise. Similarly, the CIBA, a committee of the Senate, made decisions relating to expenditures during committee meetings that are proceedings in Parliament. This too should be the end of the inquiry. The nature of what was discussed is irrelevant when examined from the perspective of Article 9.
Justice Gomery, by deciding the case on a privilege by privilege basis, embarked on a somewhat tortuous path of defining the privilege trees in the independence forest, rather than recognizing the fact that there was no ability or need to enter the forest at all.
Article 9 is not a statement of privilege. It is a statement of independence. Protection from judicial scrutiny for the Senate’s proceedings, particularly as they relate to itself and its Members (who are the constituent parts of the Senate as a whole) is the essence of that independence. Regardless of the process or outcome of decisions of the Senate in its proceedings Article 9 precludes any review, questioning or impeaching in any court on any basis. And that should have been the beginning and end of this decision. At the very least, it would have put the analysis of the privileges considered on a firmer constitutional footing.