The Ontario Court of Appeal has confirmed that Senator Mike Duffy cannot bring an action against the Senate for its decisions to reject certain expense claims and suspend him from sitting and receiving his sessional allowances , even if he could prove that the decision was politically motivated or the processes were unfair (Duffy v The Senate of Canada , 2020 ONCA 536). The Court of Appeal upheld the decision of the Superior Court (see Blog December 21, 2018) that the various decisions of the Senate were protected by the parliamentary privileges relating to the Senate’s power to discipline senators, the power to control its own proceedings and not have those proceedings questioned in the courts, the Senate’s control over spending and allowances of senators, and the freedom of speech. Although the decision is an important confirmation of these privileges, what is more significant are the court’s findings on the effect of parliamentary privileges as a matter of constitutional jurisdiction.
Until this case, the relationship between parliamentary privilege and jurisdiction had not been addressed head on by a Canadian court. Previous cases had arisen in two contexts. One was attempts to judicially review decisions of legislative bodies. In those cases, courts found that they were precluded by Article 9 of the Bill of Rights, 1689, from directly questioning or impeaching parliamentary proceedings, among other factors. The second type of case concerned defenses to lawsuits based on freedom of speech or, as a matter of evidence, attempts to preclude the use of Hansard to impeach a witness or ground a claim. The Duffy case was framed differently. This was a civil case, in damages, brought against the Senate and others, based on the actions of the Senate. Although somewhat similar in substance to a judicial review application, the framing of the case required the courts to consider their jurisdiction directly. The argument presented by Senator Duffy was that, if the Senate acted “illegally” or by violating his Charter rights, the courts had separate or concurrent jurisdiction to grant damages. But for the privileges, the court would otherwise be able to hear the case as one of “wrongful discipline” or misfeasance of office, depriving the senator of his pay, and possibly for related damages based on Charter violations. The Senate, for its part, argued that the court did not have jurisdiction to hear the case.
The court had two options available to it, both of which would have achieved the same result. The court could have dismissed the action on the basis that there was no way for the case to be proven since all the evidence supporting the allegations was protected by privilege. By striking out all the allegations that would involve the court in questioning the proceedings, there would be no remaining factual allegations capable of proof. The second option, taken by the court, was to deny that the courts had jurisdiction, and to further indicate that jurisdiction to determine all issues related to privileges rested with the Senate. By looking at the question as one of jurisdiction, the court saw privilege as more than a question of evidence.
The Ontario Court of Appeal unequivocally stated: “Parliamentary privilege is a rule of curial jurisdiction.” (para 35) In matters covered by privilege, the Senate has the exclusive jurisdiction to decide the entire question before it and to grant whatever remedy it deems appropriate. The court further noted that this does not “leave Senator Duffy without remedies. Instead, he must pursue his remedies before the Senate, which has its own power of judicature according to its own rules.” (para 91) Although articulated for the first time in Canada, the court relies on the ancient concept of a separate judicature in areas of privilege rooted in the expression and concept of the High Court of Parliament which “has a certain power of judicature—as do the two Houses in their separate capacities. In exercising this jurisdiction, the Houses apply the law and custom of Parliament (lex et consurtuo parliamenti).” (ONCA quoting the UK Supreme Court in R v Chaytor [2010 UKSC 52]. In the UK, this distinct jurisdiction is termed “exclusive cognizance”.
From a practical and practice perspective, the court has determined that not only do courts not have jurisdiction to hear cases that fall within the parameters of parliamentary privilege, but that each House does. The concept of exclusive cognizance articulated in the UK Supreme Court has now clearly been accepted and adopted in Canada. Parliamentary privilege not only protects the independence of Parliament, but also provides the scope and extent of its exclusive jurisdiction to determine matters that fall within that jurisdiction. Parliamentary privilege is a legal and constitutional jurisdictional boundary between the courts and Parliament. Only Parliament can hear and determine matters internal to Parliament and its members. As a rule of constitutional jurisdiction based on categories of privilege, all types of proceedings in the courts, not only judicial review, are precluded.
The jurisdiction of Parliament, however, is specific and limited. Parliament’s jurisdiction only runs to matters that fall within the scope of parliamentary privilege. In this way the scope of parliamentary privilege defines the boundary of Parliament’s jurisdiction. A matter that would normally be determined by the court, even if involves parliamentary members or officials, will continue to be a matter for the courts unless it is shown that the matter falls within a privileged category that could require a decision of Parliament on the privilege (although privilege may still affect some evidentiary aspects of the case). One example is Chaytor in the UK, where a member of the House of Commons, alleged to have defrauded the House (an “ordinary crime”), was tried in the criminal courts. In this case, Senator Duffy was tried and acquitted of the criminal charges that formed part of the basis for his suspension (R v Duffy, 2016 ONCJ 220). Although related to parliamentary activity, the alleged crimes were not an aspect of privilege, nor was the determination of whether a crime was committed a matter which involved the exercise of a parliamentary privilege. But the suspension of a member, and the determination of allowances and whether they are used properly, are. An analogy can be drawn with ordinary employment. An employee alleged to have stolen from her employer can be tried and acquitted in the criminal courts and still lose her job. She can bring a civil suit that will be tried and determined in a different court, on a different standard. In the parliamentary context, the complimentary determining body is not a civil court applying civil law. It is a parliamentary body exercising its parliamentary privileges and applying the law of parliament.
It has long been established that Parliament has the jurisdiction to determine the application of laws within its walls and how those laws apply to its proceedings (Bradlaugh v Gossett (1884) 12 QBD 271). What continued to remain somewhat uncertain in Canada was whether this rule applied to the Charter of Rights and Freedoms. The decision of the Court of Appeal, based on jurisdiction, also settles this issue. While earlier cases such as New Brunswick Broadcasting  1 SCR 391 had decided that the Charter did not prevail over parliamentary privilege since both were constitutional in nature, the Court of Appeal decision in Duffy provides guidance on where any balancing between Charter rights and privilege is to take place—in Parliament. This is not inconsistent with jurisprudence that holds that the Charter does not grant, or change, jurisdiction. For a court or any body to apply the Charter, it must otherwise have jurisdiction over the subject matter, the person (or body) against whom the case is brought and the remedy. Only once jurisdiction is established can the court, or decision maker, determine whether and how the Charter applies. This same reasoning is now clearly applicable in the parliamentary context. In case there is any remaining doubt, the court indicates that it is not up to the courts to reconcile privilege and the Charter, rather “where parliamentary privilege applies, the legislative body holding the privilege has the exclusive competence to adjudicate an alleged breach of the Charter.” (para 110) It is now up to Parliament to determine how to consider the potential application of the Charter in the exercise of its privileges.
By framing the decision in jurisdictional terms, the Court of Appeal reminds parliamentarians that in matters of privilege may be responsible for making juridical determinations that affect the rights and/or livelihood of individuals. With jurisdiction comes responsibility. Parliamentary institutions are by their nature partisan and political, however, there are times when they are carrying out functions that require them to set aside (or at least temper) partisanship. This is particularly the case when individual rights are at stake. Since the courts cannot be involved, and do not provide a backstop, parliamentarians must be vigilant in their proceedings to ensure fairness of both process and outcome. A failure to do so will not only be damaging to the individuals concerned but to the parliamentary institutions themselves.