CJAD 800 Montreal – September 27, 2023
On September 22, 2023 during a special sitting of the House of Commons at which the President of Ukraine was to address the House, the Speaker acknowledged the presence in the gallery of a constituent of his. Unknown to the Speaker, or apparently to any other Member, the constituent had been a member of the German SS during the second world war. Within hours the constituent’s past was ascertained and divulged by Jewish leaders and others who pointed out the involvement of the constituent’s SS unit in atrocities against Jews and civilians during the war.
Immediately there were demands for an apology from the Speaker and the beginnings of suggestions that the Speaker resign.
By September 25, when the House next met, the significance of the situation and profound error was evident. The real pain and shock of members of the Jewish community, human rights advocates and many ordinary Canadians had manifested itself though social media platforms and in public statements. That the events and occurred on the eve of Yom Kippur, one of the holist periods in the Jewish calendar, made the situation even more painful. Complicating matters politically was the use to which Russia and others would be able to exploit the incident to “demonstrate” pro-Nazi sympathies in the west and in Ukraine.
On September 25, the Speaker made a heartfelt apology for both inviting the constituent to attend and sit in the gallery of the House, and for praising him in the manner that he did. During the apology the Speaker made it clear that the decision to invite the constituent and to acknowledge his presence was the Speaker’s personal decision and that the invitation had been made by him directly.
Despite insinuations by the Official Opposition, including a former Speaker, that the invitation was at the request of the government, or at least that the government knew and was complicit, it is rightly asserted by the Speaker that he would have acted on his own initiative. Any other suggestion is to question the impartiality and political neutrality of the Speaker and the role of the Speaker. Even suggesting that the Speaker had or ought to have advised the government itself suggests the politicization of the position of Speaker. That the Speaker acted independently of the government in this case is not only evident from the statement of the Speaker and statements from the Prime Minster, but from the personal and emotionally charged pain of the Government House Leader, who is a descendant of a holocaust survivor most of whose family were victims of the Nazi regime. Any contact with the government by the Speaker would have been with the House Leader’s office, and any suggestion of co-operation or knowledge of the government in these circumstances is difficult to believe. The attempt by the Official Opposition to make any such connection, without evidence, is itself a threat to the office of Speaker, and should be condemned for its political overreach.
That the Speaker acted alone is evident. As such, any consequences or corrective action is a matter for the House, to which the Speaker is accountable, to consider, not the government. It is appropriate that any consequences for the actions or failings of the Speaker are the responsibility of the House. An independent and politically neutral Speaker is necessary both for the House to function and for public trust in the institution. He was elected, by secret ballot, by all Members of the House, both government and opposition. As such the relationship of all members equally. His actions and his words are made by the House and is for all members. It is obvious that in this case his words and actions, albeit unbeknownst to the Speaker at the time, were hurtful of some members personally and clearly not reflective of the views of the House and its members. It is therefore up to Speaker and the House to resolve the issue. Whether the House accepts the apology of the Speaker and whether the House has continued confidence in the Speaker to act as their public face and representative is for the House and the Speaker to work out. There have been many calls for the Speaker to consider resigning in light of these events. There may also be consideration by some Members to present a motion of non-confidence in the Speaker which would compel the Speaker to resign.
The resignation of the Speaker, voluntarily or forcibly, during a period when the House is sitting is almost unheard of in Canadian history. With limited exceptions, most resignations have occurred when the Parliament was prorogued (between sessions) with the House being able to select a new Speaker at the beginning of the next session of Parliament, or during a long adjournment when the House could plan for an election of a Speaker at the next sitting. How to proceed in the present situation is somewhat uncharted.
Constitutionally there must always be a Speaker of the House of Commons. The House cannot sit or hold proceedings without a Speaker. While there is a Deputy Speaker of the House, he or she can only act when the Speaker is temporarily absent. Temporary absence is different from a vacancy, and therefore the Deputy Speaker could not act if the Speaker resigns. The House would have to immediately cease its business until a new Speaker is elected. In order to avoid such an abrupt break it is for the Speaker to provide notice that he “intends” to resign (Standing Orders s.2(2)), with some time fixed in the future to allow for the processes to be put in place to elect a successor. The Speaker has indicated that he will be resigning at the end of the day September 27, 2023. Until the House elects a new Speaker, the House cannot conduct any business. Unless the House proceeds to elect a Speaker on Thursday morning, the House cannot sit to hold normal proceedings.
How and when the election of a new Speaker is elected is a matter for the House to decide. The Standing Orders of the House of Commons provide that members “when they are ready, shall proceed to the election of a Speaker.” Unless the House adjourns, the Speaker must remain in place until the new Speaker is elected. It must be made clear when the Speaker is in fact resigning. If the House chooses, it can continue to sit until the new Speaker is elected, with the present Speaker presiding. If the Speaker chose to be temporarily absent until the election of the new Speaker, the Deputy Speaker could manage the sittings of the House, but he or she would not “be” Speaker as such. IF the Speaker has resigned Deputy Speakers cannot act. At the same time, it is clear from the precedents and rules that the election of a Speaker takes precedence over all business of the House. While this supports the position that the House cannot conduct any business without a Speaker, so election of a Speaker must come first, in the case of a resignation, it is also indicative of the priority of the election, and that it should take place as soon as possible.
The process for election of a Speaker is set out in the Standing Orders of the House. Where there has been an intention to resign, and if the Speaker remains a member of the House, the Speaker will preside over the election. If the Speaker is no longer a member, the member of the House with the longest seniority who is not a member of cabinet or the Leader of the Opposition will take the chair to conduct the election. Theoretically all other members are eligible to be Speaker and normally the process is to allow for a period of time for members to have themselves removed from the “ballot”. At the election sitting, the chair can allow those who still wish to be considered to speak for five minutes, after which a secret ballot is taken. Until 2021, a series of ballots would be taken (with the member with the fewest votes being dropped in subsequent ballots) until a majority was reached. In 2021, a single ranked ballot process was used. This is the process most likely to be used in any subsequent election. Once the election process is begun, it takes precedence and will continue without any interruption or adjournment until a new Speaker is chosen. Once elected the new Speaker immediately takes the chair and becomes Speaker.
It is important, for the sake of the House, and public confidence in the House, that the matter of confidence in the Speaker be resolved as quickly and in as orderly a fashion as possible. As I write this the Speaker of the House had met with the various House Leaders, and he has indicated that he will resign at the end of the day on September 27. One hopes that that a calm and neutral process will be established for the election of a new Speaker. All parties should recognize that this a House matter, not a government or political one; so that the dignity of the House is not impaired. This is a challenging time for the House that requires members to act as parliamentarians not politicians.
The Speaker must be careful in how his resignation is handled. Unless he provides an intention to resign to match the date of the election it will be difficult to manage a smooth transition to a new Speaker. Proper notice of intention will all the House for an orderly transfer of the constitutional office of Speaker of the House of Commons to take place.
In addition to the possible election of a new Speaker, consideration of how this error in judgement occurred needs to be addressed. Once again this must be done by the House itself. The House of Commons is independent of the government and therefore, unless there is a specific request for information made from the office of the Speaker, for use by the Speaker, there is no requirement for the Speaker to advise the government, or anyone outside of the House, of any intention of the Speaker to act or speak. The term Speaker is indicative of this responsibility. The Speaker speaks for the House. He is the only person who can. And with this comes a great responsibility. It is the responsibility of the Speaker, as a servant of the House, to ensure that his actions and words reflect the position of the House, or would, by implication, reflect well on the House. The Speaker’s office is resourced by the House, and one of the primary roles of the House Administration is to provide independent support and advice. It is up to the Speaker and the House to ensure that those resources are used, and that a process is put in place to prevent similar incidents from occurring in the future.
It is possible to learn from this experience. While the Speaker may need to resign and a new Speaker be elected, all parliamentarians and especially future Speakers have a responsibility to put in place processes that ensure that when the Speaker speaks, he or she speaks on behalf of the House and the Canadian public that the House embodies. And that speech needs to be fully informed and considered.
A year after the attack on the Capital Building in Washington D.C. on January 6, 2021, Canada saw a two weeks-long trucker’s blockade of Wellington Street in Ottawa, a street that runs along the southern boundary of Parliament Hill. These incidents once again focused the attention of parliamentarians on issues of security and potential threats from outside the buildings in which they conduct their business. Questions of security were no longer limited to protecting members within the capital building, or the Parliament Buildings, they focused on whether and how to create a buffer zone around the buildings.
In December 2022, the Canadian House of Commons’ Standing Committee on Procedure and House Affairs tabled a report entitled “Protecting the Parliamentary Precinct: Responding to Evolving Risks.” The two key recommendations are:
That the government and its partners continue their current consultations and discussions with relevant stakeholders regarding the potential expansion of Parliament Hill onto Wellington and Sparks streets, along with the potential redevelopment of these streets…
That the federal jurisdiction for the operational security of Parliament Hill be expanded to include sections of Wellington and Sparks streets and, if necessary, that a transfer of land take place between the City of Ottawa and Public Services and Procurement to allow for Wellington Street and Sparks Street to become part of Parliament Hill
The effect of implementing these two recommendations would be to expand Parliament Hill, which now only encompasses the Parliament Buildings and lawns surrounding them, expanding to include two or three streets, as well as government offices including that of the Prime Minister and Privy Council and various businesses and residences. Also, the primary entity for providing security, but not necessarily policing, would be the Parliamentary Protective Services, which is under the joint responsibility of the Speakers of the House of Commons and Senate.
The report, the supporting evidence, and the recommendations unfortunately lack the necessary clarity and understanding of parliamentary versus government responsibility to provide a clear roadmap. Or worse, it provides a roadmap to unintended legal and constitutional problems which any plan for security must avoid.
The fundamental failing of the report and its conclusions are evident from the beginning. In the opening section the committee effectively dismisses any distinction between the “parliamentary precinct” and “Parliament Hill” as either one of legal definition or mere terminology. At page 8 of the report the committee writes:
It may be worth noting that the term parliamentary precinct, in these above definitions, refers to the interior of the physical envelope of a given building occupied by Parliament for its corporate purposes. Meanwhile, the physical area surrounding the parliamentary precincts (i.e., roads, sidewalks, etc.) is not, at present, considered part of the precinct. To that end, the grounds of Parliament Hill have not been considered part of the parliamentary precinct.13
Despite legal or historical definitions, many people, including some witnesses who appeared before the Committee, colloquially refer to the whole of Parliament Hill and its surroundings as the “parliamentary precinct.”
Throughout the remainder of the report, the committee essentially makes no distinction between the use of the terms, nor does it make any effort to ensure that witnesses understand the significance of the distinction when discussing or making recommendations with respect to policing, governance, accountability, and the constitutional separation of powers.
At no point, other than in the physical definition outlined above, does the committee make any effort to understand or identify the significance of the concept of the “parliamentary precinct.”
There are constitutional consequences to the parliamentary precinct being “parliamentary”. It is not merely a collection of buildings or spaces where parliament conducts its business. It is a space over which the constituent parts of parliament, the two Houses, have exclusive jurisdiction. As a result, all decisions relating to the premises and their use are protected by parliamentary privilege. Anyone within the parliamentary precincts comes under the authority of the Houses, and their Speakers. Decisions relating to the use and configuration of the space, the presence of “strangers”, , and all matters of security are made by the Houses (or their officers such as the Speaker, Clerk, or Sergeant-at-arms) and are an exercise of privilege. Any expansion of the precincts would puts all persons and premises within the new boundaries inside the scope of such exclusive jurisdiction. With such jurisdiction, the Houses and their members would become responsible for all decisions relating to the occupation and use of the space.
In the area of security, which was the main concern of the committee, the relationship to privilege and the jurisdiction of the Houses rests on the ability to exclude strangers, including agents of the state, particularly the police. Decisions relating to security such as physical removal and barriers to access are exercises of privilege that are not reviewable in the courts, nor are they actionable by way of tort claims relating to the use of force or defamation. Significantly, as exercises of constitutionally entrenched privilege, the Charter does not apply so as to create any action or constraint on the exercise of the decision-making responsibility.
Parliamentary precincts and parliamentary privileges relating to use of space and exclusion of strangers are inextricably entwined. They are effectively synonymous. Space seen as precincts provides exclusive jurisdiction to the Houses to administer and protect. Equally, the extent of the Houses’ privilege which is necessary for the business and functions of the House and its members defines the precincts. Regardless of which analysis is followed, there is a line where the scope of precincts and the attendant privileges must align.
Given the fact that privilege grants and protects specific jurisdiction beyond the reach of government (including policing) and the courts, and given the potential effects on “strangers” and rights they enjoy outside of the precincts, courts have limited the scope of precincts to what is necessary for parliamentary functions. Outside that space is the point where the jurisdiction of the courts, police and individual rights are properly engaged.
Historically, the boundary between the two has been the “walls” of Parliament. In the UK this is the envelop of the Palace of Westminster, and in Canada that of the Parliament Buildings. More recently the courts have recognized precincts to include buildings, or parts of buildings, that house parliamentary offices and other parliamentary spaces. But in all cases the concept of precinct has had a definition that only reaches to spaces where parliamentarians carry out their functions and over which it is necessary for the Houses or Speakers (on behalf of the House) to have exclusive jurisdiction and exercise privilege. In some cases, the courts have also recognized a relatively small buffer zone around buildings where privileges might be exercisable when there is a physical threat to the buildings (attacks on the outside walls that threaten the buildings or to gain access) or where space needs to be created to allow members and those having business with parliament to access the precincts. Sometimes these “outside” actions are carried out by security services of the House “pushing out” the buildings’ perimeter, or by outside police being engaged by the House to protect its precincts and its privileges, including ensuring that members and those attending parliament to have unimpeded access.
In all cases, the identification of precincts and related privileges are limited and focussed on Parliament itself. Relevant questions of security are only those which relate to the security of parliament and parliamentary institutions. Any engagement with the public has been as strangers to parliament and any “threat” they might pose to parliament and its proceedings. Again, this is related to the extent of privilege.
Jurisdiction for security within the precincts has always rested with the Houses themselves and not the executive or the police. As early as 1415, Parliament was concerned with how to protect itself. As a result, the king provided one of his Sergeants-at-arms as a gift to the House of Commons to provide protection, in the name of the king, but under the sole direction and authority of the House of Commons. There then developed an internal security apparatus under the Sergeant-at-arms to protect the precincts. Since the Sergeant-at -arms was under the direction and authority of the House his actions were fully protected by parliamentary privilege. The same arrangement was constitutionally entrenched in Canada through the preamble to the Constitution Act, 1867.
The authority of the Sergeant-at-arms ended at the edge of the precincts, where it met the authority of the Crown and the police who were responsible for public, not parliamentary, peace and order. In Canada, the dividing line had historically been the walls of the parliament buildings. The result was that House security personnel, under the Sergeant-at-arms, was responsible for security within the buildings and the police were responsible for security and policing elsewhere on Parliament Hill and beyond.
In 2014 a gunman entered the Parliament Buildings after having killed a ceremonial guard at the National War Memorial a few blocks away. He was eventually shot by the Sergeant-at-arms. Following this incident there was a call for reform of security on Parliament Hill and within the precinct. The result was the creation of the Parliamentary Protective Service (“PPS”) that was given responsibility for providing “operational security” within the precincts and on Parliament Hill, while the police retained jurisdiction for policing on Parliament Hill. This arrangement was carefully constructed to respect the distinction between the parliamentary precincts and an area outside of the precincts. The PPS was established under the Parliament of Canada Act, a constitutional statute that organizes matters under the authority of either House, either Speaker, or jointly. The Speakers “as the custodians of the powers, privileges, rights and immunities of their respective Houses…[are] responsible for the Service.” Protocols were established between the Minister of Public Safety and Emergency Preparedness and the Speakers to ensure that the privileges of the Houses were guaranteed, and any involvement of the police in the provision of security would be “in accordance with the arrangement.” The Act further affirmed that the creation of the PPS did not “limit in any way the powers, privileges, rights and immunities” of the Houses. In short, a security service was created within the existing constitutional framework. The police, as police, were excluded from the precinct, except with the permission and on terms agreed with the Speakers (the arrangement), and security personnel could provide physical security, but not policing, in the area outside of the precincts. All of which was under the joint responsibility of the Speakers.
The constitutional paradigm that rests on the concept of “parliamentary precincts” and the related privileges therefore currently remains intact. Since parliamentary security now encompasses the grounds which surround the main Parliament Buildings in order to ensure that buildings off Parliament Hill were still covered by parliamentary privilege, a working definition of “parliamentary precincts” was necessary. Since the police were now going to play a role in physical security it was also necessary for the Act to have a definition which provided for the delineation between public and parliamentary jurisdiction. While the definition of “parliamentary precinct” might on its face appear to be a physical description, it is actually one that maps onto the constitutional functions carried out within the space, which functions are those protected by parliamentary privilege. The key concept in the definition is the word “used” by the two Houses, the Library, committees, various officers of the Houses, and members who are carrying out their parliamentary functions. These are all entities that fall within the exclusive jurisdiction of the Houses and Speakers, and are integral to the two Houses carrying out their parliamentary functions.
What was significant, with the creation of the PPS, was the expansion of the role of the combined security personnel of the two Houses which had previously been limited to providing security within the precincts, as an incident of parliamentary privilege. Security personnel were now being used to provide physical security (but not policing) on the grounds surrounding the Parliament Buildings.
By the terms of the Act, and the arrangement, the Speakers as guardians of the rights and privileges of the House took on responsibility for the security of not only the precincts but Parliament Hill. This has both constitutional and practical consequences for the Speakers, and as a result for each House and its members. While it is often thought that Speakers are individuals who have particular authority to manage the affairs of their House and to act independently in that capacity to carry out their functions, this is not the case. Speakers are the embodiment of their House. They are the spokesperson of their House to the outside world, however they do not have any capacity that is independent of the House itself. As Speaker Lenthall famously stated in 1642, “I have neither eyes to see nor tongue to speak in this place but as this house is pleased to direct me whose servant I am here.” This sentiment is carried into the provisions of the Parliament of Canada Act that create the PPS. The Speakers are responsible for the Service “as the custodians of the powers, privileges, rights and immunities of their respective Houses and of the members of those Houses.” In short, members are, through their Speaker, responsible for the provision of security within the precincts and on Parliament Hill.
The expansion of the provision of “operational security” to Parliament Hill expanded the responsibility of members as well. Any expansion of “Parliament Hill” would make the Houses and their members responsible for the security within the “new” expanded parliament hill. It is one thing to continue members’ responsibility for security within the precincts as an incident of privilege, and possibly to cover a buffer of lawn surrounding the main parliament buildings, it is quite another for members to take on the responsibility and jurisdiction for the provision of security for up to three main roadways, government offices including the Prime Minister’s Office and the Office of the Privy Council, private offices, retail spaces, a pedestrian mall, and private residences.
Expanding the parliamentary precinct, as that concept has been contemplated and recognized, or expanding the physical definition of Parliament Hill and thereby expanding the role of the PPS into “private” space, would necessarily bring both legal and governance challenges.
From a consitutional perspective, there is a question of how far the parliamentary precinct can be expanded. The connection of parliamentary precinct to parliamentary privilege suggests that parliamentary precincts can only be extended to the point that is necessary to ensure consitutional protection and independence of the two Houses and their members. Beyond that point, the consitutional jurisdiction for the Houses and Speaker is suspect. Section 18 of the Constitution Act, 1867 provides that privileges in Canada cannot be expanded beyond those of the UK House of Commons in 1867. Any claimed new privilege must meet the definition of necessity as that term is defined in Supreme Court of Canada jurisprudence Therefore, any attempt to extend the precincts beyond the working definition in section 79.51 of the Parliament of Canada Act would be constitutionally suspect.
Before examining the significant question of expanded “operational security” in civic areas where the public goes about its daily business, it is necessary to consider whether it would be proper or constitutionally permissible for a security service under the responsibility and jurisdiction of the Speakers to provide security for government buildings, particularly those that house the Prime Minister’s Office and the Office of the Privy Council. In the same way that the separation of powers and the independence of the Houses of Parliament protects Parliament from intrusions and interference from the Crown, one would have to ask whether the inverse is also an issue. Would the government accept a security apparatus under the direction and jurisdiction of the Houses, both of which include members of the Opposition? Such oversight would involve the PPS and its parliamentary overseers having access to, and information about, buildings in which the majority of matters covered by cabinet and Crown confidences are carried out?
The expansion of the precincts or the expansion of Parliament Hill into public space would involve a greater risk of legal questions arising from engagement with private individuals as they go about their daily business. For example, beyond the existing Parliament Hill, citizens enjoy full protection of Charter and legal rights enforced by the courts without any reference to privilege. In addition, the provision of operational security within areas of daily private activities, including driving and what is now by-law enforcement, becomes a potential jurisdictional puzzle. How is the public to distinguish between what is “operational security” and policing, when the concept of “operational security” is a concept that is not known to the law except as it appears in the parliamentary context outlined in the Parliament of Canada.
Since the PPS must remain under the jurisdiction of the Speakers to protect the independence of Parliament, Members and Senators would necessarily become involved in having to resolve these questions. The two Houses would be implicated in any legal, consitutional and liability questions that could arise from interactions between members of the PPS and members of the public. As the jurisdiction of the PPS expanded the internal governance responsibilities of the Houses and their members would also expand. Prior to 2015 members and Senators only needed to occupy themselves with matters confined within the walls of the Parliament Buildings, and buildings in which the Houses, their administration and members carried out their functions. In carrying out this responsibility they were fully protected by privilege so that the intricacies of the laws of public order did not apply and their decisions were protected from involvement by the courts. What is contemplated by expanding Parliament Hill and the responsibility of the PPS out into what is now the city would require an extensive rethink of governance and risk management.
Given the consitutional reasons for the separation of powers and the independence of Parliament from the executive and the courts, there must always remain a “parliamentary precinct” which is protected by parliamentary privilege and the ability to exclude all strangers. This both a physical and constitutional necessity; a space where the Houses have exclusive jurisdiction free from executive, police, or judicial interference. At the present time, that space is clearly and properly defined to include the Parliament Buildings within Parliament Hill (as defined in various statutes), and other identifiable buildings within the City of Ottawa. Regardless of any contemplated expansion of “Parliament Hill” this would remain unchanged. Those spaces that are at present identified as “parliamentary precinct” would remain so — the same jurisdictional islands within a potentially larger federal sea. That designation and resulting jurisdiction would still apply to any buildings or spaces inside or outside of the “new” parliament hill.
There is no doubt that security for Parliament is important and now has a dimension that requires an examination of a buffer space and access to and use of space within “shouting distance” of where Parliament sits. In a democracy it is important that people be able to gather to support, criticize and protest, while ensuring that the work of Parliament and those participating in its proceedings and work are not impeded or interfered with. There is little doubt that the responsibility for securing “parliamentary space”, including the precincts and a small buffer zone, are the responsibility of the parliamentarians, and that public authorities are responsible for “public space” outside of the parliamentary precincts. It is doubtful whether Parliament or its Speakers have the constitutional or legal capacity to be responsible for securing public space beyond that occupied and used by parliamentarians and invitees for parliamentary purposes. Securing the public and policing the public peace is the responsibility of the Crown and its agents (police and by-law enforcement). Even if it is within the jurisdiction of the Houses to expand their responsibility beyond the precincts and the existing Parliament Hill any expansion would be onerous and fraught with numerous legal and practical matters. Both Houses, and their members, would now need to ensure proper management of the area in question, even if limited to “operational security,” which would include government offices, retail spaces, and public but non-parliamentary daily activities.
What is required is not expanded jurisdiction for the two Houses but a better understanding of the policing and security challenges that the presence of a Parliament within a city entails. This means better understanding by the police of needs of Parliament, including protection from spillover from events within public spaces and protected access of members, staff and those doing business with Parliament. This might entail a recognized “federal zone” which would include all vulnerable federal sites, including Parliament Hill and related parliamentary offices, the Supreme and Federal Courts, and central government offices including the Prime Minister’s Office, the Privy Council Office and the Treasury Board. This could then come under a single co-ordinating police, not parliamentary, responsibility. Within this zone would sit the recognized parliamentary precincts that would still be protected by parliamentary privilege. This would be consistent with the constitution which leaves, but limits, parliament to being responsible for those things that are uniquely parliamentary, and gives to police the responsibility for those things which are public.
Over the last decade many legislative assemblies have worked to address “workplace” issues by examining what constitutes ethical behavior in a modern parliamentary institution. Beyond the traditional ethical issues regarding conflicts of interest, bribery and lobbying, assemblies have sought to address issues related to personal behaviours including harassment, bullying, human rights violations, misogyny and non-inclusive practices and procedures. At the same time, it was necessary to recognize that a legislative assembly is made up of elected members, the selection of which is beyond the control of the assembly, that the body is inherently political and therefore adversarial, and that legislative assemblies must be free to operate independently of the government and the courts. The result, in most cases, has been to develop a code of ethics and conduct substantively seeking to address unwarranted behaviour and policed through a complaint process.
The processes developed were necessarily internal. The work of an assembly is unique and is carried out by elected members who collectively constitute the assembly itself. Inevitably concerns would be raised regarding the “fairness” of the process to resolve any complaints raised, particularly when the behaviours, attitudes and effects are between and among members. The inherent partisan, political and adversarial nature of the assembly also presented the problem of developing processes that would be as free from political motivation and interference as possible. Some form of objective investigation that would be able to separate out political and partisan activities from unethical or harassing behaviours needed to be developed if there was to be any semblance of integrity from the perspective of both members and the public.
Like most legislative assemblies, the Newfoundland and Labrador House of Assembly adopted codes and legislation aimed at ensuring the integrity and ethical behaviour of members. The processes developed under the legislation created an officer of the assembly, the Commissioner for Legislative Standards, who would investigate complaints and report to the Assembly, which could impose the appropriate discipline on any member who ran afoul of the standards. In 2019 complaints were raised by certain members against other members, who were also were members of the provincial cabinet. The complainants claimed that they had been harassed and bullied. While the Commissioner rejected the majority of the allegations, there were findings of inappropriate behaviour on at least one allegation. The reports were subsequently debated in the Assembly and the offending members sanctioned, removed from caucus and forced to resign from cabinet. Given the “political” aspects of the complaints and sanctions, there was considerable press coverage, including media interviews with the complainants, that resulted in reputational and political consequences.
The affected members decided to take legal action against various actors in the complaint process. Unlike other cases which have been based on judicial review of decisions of management committees or legislative assemblies, which have been rejected since the decision-making bodies were found to be legislative in nature and the decisions protected as “proceedings in parliament”, the members brought civil suits against various individuals. Actions were brought against the Commissioner and the Speaker for abuse of process and misfeasance in office for the handling of the complaints and failure to protect the” rights” of the members complained against. These two officials, along with the complainants, were also alleged to have abused their offices. The basis of the claim was that the investigation was conducted pursuant to a statute and by an individual investigator with the result that the process was not a proceeding in parliament, rather decisions were taken pursuant to powers granted by statute. In addition, actions were brought against the complainants for defamation for the content of the complaint, statements made in the investigation and statements made to the press. The respondents brought motions to have the claims dismissed as disclosing no triable cause of action since the proceeding would contravene the privileges of the assembly and its members.
In two decisions released on the same day, Joyce v Gambin-Walsh, 2022 NLSC 179 and Kirby v Chaulk, 2022 NLSC 180, Justice Chaytor of the Supreme Court of Newfoundland and Labrador dismissed all aspects of the claims with exception of defamation claims based on comments made to the press. The decision rested on the foundation of the assembly’s privileges over its internal processes, its exclusive right to discipline its members without interference from the courts, and the freedom of speech for those participating in matters before an assembly.
Since the claims were made within the context of a provincial legislative assembly the defendants were first required to demonstrate that the privileges at issue were necessary for the assembly to carry out its functions. It was evident from the facts and the jurisprudence that the expected standards of behaviour as between members, both inside the chamber and outside of it, are matters that are required for the assembly to carry out its functions with dignity. The enforcement of those standards as an incident of the power to discipline members was also found to be necessary for the Assembly to carry out its functions. The court held that, although the process of the filing of complaint and investigation of those complaints was not itself a proceeding, the purpose of the process was to allow the assembly to consider whether the actions of a member warranted discipline. The Commissioner, in entertaining and investigating the complaints, was acting as a delegate to assist the Assembly in making a decision. In the words of the court, the entire process was “connected to the proceedings and the House fulfilling its consitutional roles.”
Although the court found that it was without jurisdiction to consider the actions of the various participants in the process, it made it clear that the assembly itself had jurisdiction to do so. The assembly had the jurisdiction, and therefore the responsibility, even if not articulated in any statute or code, to determine whether the standards applied should be a basis for discipline and whether the process followed met the necessary standards of fairness. Finally, only the assembly could impose any sanctions. Even if a court might have found that the Commissioner had exceeded the language of the codes, or had acted unfairly, none of these considerations changed the fact that the entire matter fell within a decision-making framework focussed on the disciplining of a member of the assembly, a matter that falls within the ambit of parliamentary privilege, regardless of any errors, omissions, or findings. As members of the assembly, the plaintiffs (respondents to the complaints) were able to raise any issues they might have had regarding any issues, be they legal, factual, procedural, or political.
This left the issue of defamation claims against the complainant who had discussed the complaints and alleged harassment and bullying with the press. It has generally been settled law that comments made outside of proceedings, particularly comments to the press, are not covered by parliamentary privilege. This is why it is not uncommon for one member to dare another member to repeat what they have said in the chamber, where speech is protected absolutely, outside the chamber where the laws of defamation apply. To avoid such a finding, the complainants, who were members, argued for a broader application based on the changing role of members and the way that they were expected to carry out their parliamentary functions. They submitted “that the scope of parliamentary privilege of freedom of speech should include public statements made by members…if those statements were made in the course of advocating and performing their functions as members.” (Kirby para 83). It was further argued that “traditionally advocacy by members…was limited to the House of Assembly. That was their performance venue where they advocated, questioned colleagues, and represented their constituents. However, in contemporary times, much of that advocacy occurs in other forums such as through the media and social media. Therefore, …such public statements and should be considered a necessary part of members…performing of their legislative function.” (Kirby para 85)
The court refused to extend the privilege as argued for. Holding that the purpose of privileges was to protect the constitutional separation of institutions within the constitutional architecture, the court noted that privileges are not individual. They belong to the legislature, or legislative assembly, as a whole. Privileges are designed to protect the assembly and the legislature in the carrying out of their consitutional role. Members, witnesses and others only enjoy the protection of privilege in the furtherance of the assembly’s functions, not in their individual capacity or as an incident of their status. Institutional and collective functions and one’s role within them is what is protected.
There may be other protections that develop for speech with constituents. However, the basis for any such protection would need to be found in the the law of qualified privilege and the public discourse based defences against defamation. Protection of parliamentary privilege does not stretch beyond the confines of proceedings and matters directly related to them.
In many ways there is nothing surprising about the outcome of these decisions. They confirm the necessity to protect the constitutional space occupied by the legislature to carry out its business without interference from the courts and the executive. But the limits of that space must also be respected and accepted by the members as well as by the courts.
These decisions confirm that legislative assemblies, as independent constitutional bodies, remain responsible for defining and policing the acceptable behaviours of their members. But exclusive jurisdiction (exclusive cognizance) over internal matters also means that those within the institution must act responsibly. As attitudes and technologies change, there is scope for assemblies and their members to adapt new practices to meet those changes. Members can and should be required to adhere to different moral, ethical and behavioral standards as they engage with each other. Processes which protect the rights of all members (complainants and respondents) need to be developed. The press and social media provide near instant communication and public accountability that can be both helpful and hurtful, so care must be taken to protect the reputation of the institution and all involved. At the same time, any internal process must allow for fairness, since all discussion among and between members takes place within the consitutional space provided. Once a different playing field, such as public engagement through the media, is chosen it is the rules of that forum and not those of the assembly will apply.
There is a lesson to be learned here by all members in all legislative assemblies. To rely on the protection provided by constitutionally privileged space, members must accept the need to act responsibly within that space. This is highlighted by the fact that reliance on a privileged space means that there can be no legal review of how they have acted. The rules of behaviour and ethics, along with the process to address alleged breaches, are developed with the acquiescence of all those who could become involved in their enforcement, both potential complainants or respondents. Members also must recognize that, in the end, the body of which they are all members will have the final say on the meaning and consequences of any actions. They could be required to debate, discuss, consider, resolve and justify all decisions taken by the collective body of which they are a part and to which the rules apply. As part of the collective body in which these cases took place, the members involved were responsible for the rules and the process. They were also responsible to the institution and collectively to each other. Since the body to which they belonged was constitutionally independent, the matter rested solely with them. In these cases, both the complainants and the respondent failed to fully understand what that meant and required. By seeking to use the courts to attack those responsible for the internal process they had agreed to, the members against whom the complaints were brought did not accept the authority of the assembly of which they were part. In short, they not only did not take personal responsibility, but they also did not accept that the assembly acted responsibly or could do so. The complainant members similarly did not respect the process, the decision or the outcome, and sought to contest the issues in the media. Both sides in the dispute, while content to argue for their privileges, failed to understand or accept the constitutional responsibilities that came with them.
What the court did was to remind all involved that both courses of action were inconsistent with the responsibility that all members have to assembly and to each other. They and all members were reminded that they are actors in a constitutionally privileged environment which they bear the responsibility to respect.
It may be that the entire process demonstrates that the assembly, or some of its members, did not act on their best behaviour. But, as with all such matters determined by the assembly, the final judges of whether the assembly adopted an appropriate standard of expected behaviour, whether its delegate, the Commissioner, acted appropriately, and whether the assembly acted fairly, is the electorate, not the courts.
On October 3, 2022, the province of Quebec held a general election.
To take a seat in the Quebec National Assembly (a component part of the Quebec Legislature) it is necessary that newly elected members take two oaths. The Act respecting the National Assembly, requires members to declare “I, (name of the Member), declare under oath that I will be loyal to the people of Québec and that I will perform the duties of Member honestly and justly in conformity with the constitution of Québec.” In addition to this oath the Constitution Act, 1867 section 128 requires that
Every Member of the Senate or House of Commons of Canada… and every Member of a Legislative Council or Legislative Assembly of any Province shall before taking his Seat therein take and subscribe before the Lieutenant Governor of the Province or some Person authorized by him, the Oath of Allegiance contained in the Fifth Schedule to this Act
That oath now provides “I A.B. do swear, That I will be faithful and bear true Allegiance to His Majesty King Charles the Third.”
While all newly elected MNAs were prepared to swear the oath required by the Act respecting the National Assembly some nationalist members refused to take the Oath of Allegiance to the King. As a result, the Speaker of the Assembly refused to allow the members to take their seats. In order to resolve the impasse, Bill 190 was introduced that would amend the Act Respecting the National Assembly to only require the oath under that Act, but not the Oath of Allegiance, to be taken before a member could take their seat. The Bill proposed a seemingly simple one line provision following the requirement to take the oath contained in the Act. The new provision would provide “No other oath may be required of a Member to sit in the Assembly.” On December 9, 2022 a government Bill to the same effect was introduced and passed by the Assembly. Bill 4, as adopted provided:
1. The Constitution Act 1867 is amended by the insertion after section 128 the following:
s.128Q.1 Section 128 does not apply to Quebec. est modifiée par l’insertion, après
There can be no doubt that the amendment to the Act Respecting the National Assembly is, on its face, unconstitutional since it is an attempt to remove the constitutional requirement that all members elected to a provincial legislative assembly take the Oath of Allegiance. Since the Oath of Allegiance requirement is found in the Constitution Act, 1867, the only way the requirement can be overcome would be by way of a consitutional amendment in accordance with Part V of the Constitution Act, 1982.
Part V of the Constitution Act, 1982 sets out three possible relevant formulae for constitutional amendment, depending on how one views the requirement that members of legislative assemblies take the Oath of Allegiance before they can sit in the Assembly. No doubt the Quebec government will argue that the provision of the Act Respecting the National Assembly falls within the ambit of s. 45 of the Constitution Act, 1982. This section provides “Subject to section 41, the legislature of each province may exclusively make laws amending the constitution of the province.” Since the proposed amendment to the Act Respecting the National Assembly only affects the ability of Quebec elected members to sit in the Quebec National Assembly, the “amendment” could be seen by some as amending only the constitution of Quebec.
However, there are indicators in the constitution and in the jurisprudence that would suggest that the issue is one that requires a broader agreement among the provincial legislative assemblies and the House of Commons and Senate. First, the requirement for the Oath of Allegiance is found in the Constitution Act, 1867 which is the constitution of Canada as a whole and which contains, with a few notable exceptions, provisions that apply to all of the constitutional architecture and principles that underpin the national government and all provinces. Among these are the principles of government in the name of the Crown, and the nature of Westminster government that requires legislation to be enacted by the King (or his representative) in Parliament or a Legislature. Equally important is a recognition that the King or his representative participate in the formation of government by appointing the Prime Minister and Premiers, the dismissal of governments if required, and the dissolution and prorogation of Parliament and Legislatures. The King’s representative is also responsible for authorizing all Bills that involve taxation and the spending of public funds. And notably, although exercised rarely, there is a constitutional power in the King’s representatives to withhold Royal Assent to a Bill, and in the case of Lieutenant-Governors reserve the granting of assent, and to refer the Bill to the Governor- General for potential disallowance. These are real aspects of the architecture of constitution of Canada which has the Crown at the centre, playing an integral part in all aspects of governance, including the formation of government, the life of legislative assemblies, the enactment of legislation and the exercise of powers of the executive.
Taking the Oath of Allegiance is an act that ties those who sit in a legislative assembly, along with the Lieutenant-Governor as the Legislature, to the entire system of governance and the various constitutional roles that the Crown plays. The Oath, among other things, recognizes and accepts the authority that the Crown exercises in the business of the Legislature, the government, and the State.
Although the Oath is cast in terms of personal fealty to King Charles the Third, the courts have consistently held that although somewhat anachronistic in its wording, the Oath is now a shorthand for an Oath of Allegiance to the Constitutional norms, principles, and governance upon which the constitution and its system of government rests. As recently as 2014, applicants for citizenship challenged the same oath in the context of its requirement fir becoming a citizen on the basis that they could not take an oath to a monarch of a colonizing British empire. The Ontario Court of Appeal in McAteer v. Canada (Attorney General), 2014 ONCA 578 wrote:
 Applying a purposive and progressive approach to the wording of the oath, with regard to its history in Canada and the evolution of our country, leads to the conclusion that the oath is a symbolic commitment to be governed as a democratic constitutional monarchy unless and until democratically changed. Inasmuch as the oath to the Queen is a requirement in the Constitution for members of Parliament and is seen as an oath to our form of government, the harmonization principle supports the conclusion that the oath to the Queen in the Citizenship Act be given a consistent interpretation. This interpretation of the oath, as a symbolic commitment to our form of government and the unwritten constitutional principle of democracy, is supported by the legal norms of rationality and coherence.
The argument that an amendment to the Act Respecting the National Assembly should be seen as constrained to the particular provincial institution, and therefore amendable using section 45 of the Constitution Act, is not dissimilar to the argument used by the federal government when it attempted Senate reform. The federal government had proposed to both limit the rems of Senators and to allow for consultative elections to determine who the Prime Minister should consider recommending for appointment to the Senate by the Governor General. The federal government argued that they had the authority to legislate these changes unilaterally based on section 44 of the Constitution Act, 1982 that allows Parliament to amend the constitution unilaterally “in relation to the executive government of Canada or the Senate and House of Commons.” In Reference re Senate Reform, 2014 SCC 32 this position was rejected by the Supreme Court of Canada for various reasons, including the fact that the changes would fundamentally change the nature of the Senate, which is a body that has the consitutional function of, among other things, protecting regional and provincial interests. As such the changes would have an effect on, or engage, the interests of the provinces. If so, then the federal government could not act alone in amending the Senate. This last point was specifically considered in light of particular Senate appointment criteria for Quebec which the court found could only be amended with the consent of Quebec. These findings of the court were made by examining not only the provisions in question but by placing the proposed change within its context and in light of its overall affects on the consitutional architecture and the system of government in which the Senate operates.
With these constitutional principles and jurisprudence in mind, it is very difficult, if not impossible to see the changes contemplated by Bill 190 as an amendment restricted to the constitution of Quebec, and not captured in any other amending formula in Part V of the Constitution Act, 1982.
The general amending formula is found in section 38 of the Constitution Act, 1982. This formula requires a resolution of the House of Commons and the Senate and the resolution of the legislative assemblies of seven provinces which have a combined population of more than fifty percent of the population of Canada. This formula is to apply as a default where no other formula is applicable. Most interestingly, listed in section 38 are certain types of amendment that clearly address the internal workings of legislative assemblies. Section 38 (2) states:
An amendment made under subsection (1) that derogates from the legislative powers, the proprietary rights or any other rights or privileges of the legislature or government of a province shall require a resolution supported by a majority of the members of each of the Senate, the House of Commons and the legislative assemblies required under subsection (1). [emphasis added]
It can be argued that this particular subsection is designed to address a situation like the one presented by the Quebec legislation. The determination of the ability of a member to sit following an election is one of the historic rights or privileges of a Legislature. The privilege of determining the constitution of an assembly (rules and participation) is one that has been recognized by the courts both prior to and after confederation, and at least two of these cases involved the requirement of Members to take an oath prior to taking their seats. In the leading case of Bradlaugh v Gosset (1884) 12 QBD 271, the English courts determined that they would not interfere in the issue of whether a member could be refused the ability to take an oath because to do so would interfere with the rights and privileges of the House of Commons. A similar case occurred in Northern Ireland when Irish separatists refused to take the oath but wanted certain benefits of being members. The Speaker refused the benefits. Again, the courts refused to become involved since do so would interfere in the privileges of the Assembly. What is clear is that the issue of oaths and taking seats is one that falls within the rights and privileges of legislatures. While these cases have been cited subsequently in order to protect the Legislature from interference in their rights and privileges, they do not protect assemblies from the constitution.
That the s.38 amending formula is the one that might be appropriate in the circumstances is supported by the fact that amendments that are made under s.38(2) relating to the rights and privileges of Legislatures can be opted out of by provinces that do not want the amendment to apply to them using the mechanism under s.38(3). The application of this formula is designeded to allow what Quebec is attempting to do with its legislation. Section 128 of the Constitution Act 1867 would be amended such that Quebec would be able to opt out of its requirements.
There are other amending formulae that could also apply depending on how far one wanted to press for the requirement of unanimity, rather than the percentage formula in s, 38. For example, if one were take the position that the taking of the Oath to the King in the context of the Legislature affected the “office of the King, the Governor General or the Lieutenant Governor of a province” s. 41 requires a resolution of all provincial legislative assemblies, the House of Commons and the Senate.
The formula in section 43 is also an amending formula that could be considered, but would require unanimity. Section 43 provides:
43 An amendment to the Constitution of Canada in relation to any provision that applies to one or more, but not all, provinces, including (a) any alteration to boundaries between provinces, and (b) any amendment to any provision that relates to the use of the English or the French language within a province, may be made by proclamation issued by the Governor General under the Great Seal of Canada only where so authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province to which the amendment applies. [qualifying phrase highlighted]
Although the phrase “but not all” is included in the provision, it would seem quite odd, and not constitutionally sound, that the intent of the drafters of the provision would have required consent of an affected province in the case of it being specially identified, but not in a case where its interests are equally affected but as a member of a group of all provinces. In the present case, s. 128 of the Constitution Act, 1867 applies to all members of every provincial legislative assembly, the House of Commons, and the Senate. Giving section 43 the necessary broad and purposive interpretation that the courts give to other constitutional provisions, a serious case could be made that even the general amending formula of s.38(1) and allowing Quebec to use s.38(2) to opt out is not appropriate when all provinces are specifically implicated by a provision of the Constitution.
In light of the above, it is likely that the legislation will be struck down as unconstitutional and the change proposed will require a consitutional amendment with the support of at least seven provinces, the House of Commons and the Senate.
While the constitutionality of the Quebec legislation works itself out, likely through a court challenge, the risk exists that some members of the National Assembly will take their seats without complying with the constitutional precondition to do so. What the consequences of this could be are unknown. There is no precedent that I am aware of. One could argue that permitting such members to openly take their seats would mean that the Assembly is not properly constituted and as a result any legislation adopted is potentially at risk. The other possibility would be that any votes by the members in question would be expunged and the tally of votes of properly seated members would be recalibrated so as to not unnecessarily invalidate otherwise valid legislation. Since these would be a questions of constitutional validity the jurisprudence in Picken v British Railways Board  UKHL 1 and Mikisew Cree v Canada (Attorney General) 2018 SCC 40 that limit the courts from examining parliamentary proceedings would not be applicable since the question would not involve the procedures followed or the content of debate but rather the validity of the proceeding itself; that is, whether the meeting was a constitutionally valid proceeding.
Regardless of the outcome, the perception that the Oath is both personal and written from a British colonial perspective and therefore susceptible to criticism or ridicule has been rekindled. For many, who have come from countries where colonialism was real and oppressive, or from countries without any connection to British history, the royal family is remote, and they cannot see King Charles III as King of Canada as opposed to the King of England. They believe they have come to a country that is a model for liberal democracy not a vassal colonial state, yet they must swear an Oath to a “foreign” King. The abstract notion of an invisible Crown that is historically and continually English but yet uniquely Canadian is unfathomable. Yet it is the constitutional glue that holds everything together. The Oath as interpreted and understood by the courts, the law and the constitution is straightforward and simple. Some, however, only see the words and feel the political and personal confusion.
Although the Quebec legislation seeking to eliminate the Oath of Allegiance to the King may seem a final way to purge the Quebec psyche of English dominance and conquest, and thereby to challenge the underpinnings of a Canadian constitution, it may in fact provide an opportunity for the rest of Canada to come to terms with itself as a modern, liberal and inclusive democracy, albeit with a complex history. The challenge presented by the legislation is not just something to be navigated through the minefield of constitution amending formulae. It is an opportunity to establish an Oath that respects the constitution as it is, a mixture of history, written and unwritten content, and an evolving democratic society based on the rule of law. This can be done without a complete overhaul of the constitution. One need only change the Oath required by section 128 and in all other contexts to one whereby one “swears to abide by and uphold the constitution of Canada and the values and principles that sustain it.” In the meantime, the existing Oath will have to do the heavy lifting required of it, as it has evolved through the maturation of Canada from the unification of four British colonies to the multi-cultural federal, liberal democratic state that it has become.
The UK Constitutional Law Association posted my blog today in which I suggest that the new Prime Minister ought to consider proroguing the UK Parliament. I make this suggestion given the need to take an appropriate pause to allow the formation of government and to set out its new agenda in a King’s Speech to start a fresh session of Parliament. In addition, presenting a program to Parliament, having it debated and voted on will provide the government the necessary constitutional legitimacy that the confidence of the House of Commons would provide by supporting the Speech. The blog can be found here https://ukconstitutionallaw.org/2022/10/25/steven-chaplin-theres-a-time-and-place-for-prorogation-and-this-is-it/
This question arose in the New Brunswick case of Power v AG Canada 2021 NBQB 107, appeal dismissed 2022 NBCA 14, with the court determining that there may be circumstances when Parliament could be held liable for enacting legislation later found to be unconstitutional, or so it seems.
Mr. Power was convicted of certain offences in the 1990s. He served 8 months and was released from prison in 1996. He then went to college and became a radiation technologist. He found work and was accredited with the appropriate provincial bodies. At the time he was sentenced and completed his sentence he would have been eligible to obtain a pardon under the then applicable Criminal Records Act. In 2011 an anonymous tip was made to his employer indicating that he had a criminal record. He was suspended from his job as a risk to the Health Authority. In 2013 Mr. Power applied for a pardon (now referred to as a record suspension). His application was rejected on the basis that he was no longer eligible for a pardon (or suspension) since changes to the legislation relating to pardons and record suspensions in 2010 and 2012 had rendered the offences for which he had been convicted no longer pardonable. In 2017 the retroactive application of the legislation was declared unconstitutional on the basis that the consequences of convictions (which included both a sentence and the possibility of pardon) prior to the 2010 and 2012 enactments had been made harsher by the exclusion of the possibility of pardon.
In 2018 Mr. Power brought an action against the Attorney General of Canada, acting for both the Crown and Parliament, alleging that “the imposition of the [provisions of the new legislation] by the government were clearly wrong, taken in bad faith and an abuse of process”. In essence Mr. Power was claiming that when Parliament enacted the provisions in question it was acting in bad faith and was effectively abusing its authority. This is evident from the way that the Attorney General argued its case. The Attorney General posed the questions before the court as:
1- Can the Crown, in its executive capacity, be held liable in damages for government officials and Ministers preparing and drafting a proposed Bill that was later enacted by Parliament, and subsequently declared invalid by a court pursuant to s. 52(1) of the Constitution Act, 1982? and
2- Can the Crown, in its executive capacity, be held liable in damages for Parliament enacting a Bill into law, which legislation was later declared invalid by a court pursuant to s. 52(1) of the Constitution Act, 1982?
The Court of Appeal summarizes Canada’s argument as follows [para.20]:
As for Mr. Power’s claim for damages under s. 24(1) of the Charter, Canada maintains that the Parliament of Canada and the Executive branch of government (i.e. Ministers and staff) – when performing an essentially legislative function, such as proposing and drafting legislation – are protected from liability. Canada argues that the state, in exercising its legislative functions, is subject to what it describes as “absolute immunity” (or something approaching it) in respect of the enactment of legislation. To further clarify, Canada maintains that the mere enactment of legislation by Parliament (and with the assistance of the Executive branch) which is later deemed to be unconstitutional cannot give rise to any entitlement to damages under 2. [sic] 24(1) of the Charter because of this immunity, founded upon the principles of Parliamentary privilege and the constitutional division of powers as between the Legislative, Executive and Judicial branches of government.
The Attorney General argued that because of the separation of powers, the government should not be held liable for the enactment of legislation, since Parliament is a separate constitutional actor from the government. It also argued that, based on Mikisew Cree First Nation v Canada (Governor General in Council) 2018 SCC 40, the role of government officials and Ministers in introducing and promoting the legislation through the Houses was part of the legislative process and therefore protected by parliamentary privilege and not reviewable by the courts.
The result of these two arguments was summarized by the Court of Appeal [para 22] into the following question “does the state enjoy an absolute immunity in respect of the passage of legislation? In effect, is there absolute state immunity with respect to the legislative function?” By framing the questions in terms of “passage of legislation” and “legislative function”, the court was led into an analysis that confuses the distinction between government and Parliament, misconstrues the nature of Parliament and could result in other claims relating to alleged “bad faith and abuse” in legislative processes thus infringing the independence of Parliament.
These issues all stem from attempts to examine the problem through the lens of private law causes of action based on “individual” responsibility, rather than as a fundamental question of constitutional law and remedy. Instead of asking the simple question of “whether (and when and how) damages are available under section 24 when legislation is declared unconstitutional under s.52?” the court embarks on an examination of various potential common law tort claims (e.g., acting in bad faith, abuse of power, abuse of authority) that then have to apply to a particular institution, in this case Parliament, exercising some form of malicious intent. This in turn leads to various claims of privilege, immunity and trying to place responsibility onto others – the government looking to Parliament and the possibility of hiding behind Parliament’s immunities.
To follow this path is a fool’s errand and may cause more damage to the constitutional architecture than would result from addressing the real issues. To try to ascribe any liability to “Parliament” presents numerous constitutional and legal problems. Parliament is not a legal personality or entity as is the Crown. It is composed of three separate and distinct constitutional bodies; the House of Commons, the Senate, and the Queen as represented by the Governor General. It is only when all three act to reach the same conclusions that one can say that Parliament has acted. So, which of these entities is the court speaking of? And even if the court is speaking of only the House of Commons, which is not Parliament, the House of Commons as a legislating body has no legal personality. Nor does the Senate.
Also, even if it could be said that “Parliament” is a legal and culpable body, what Parliament would be liable? At the time of writing Canada’s Parliament is legally and constitutionally the 44th Parliament, and the legislation at issue was enacted by the 40th and 41st Parliaments. Each Parliament is separate and distinct from each other Parliament. At the end of a Parliament, the particular Parliament is dissolved and ceases to exist. In the same way that a Parliament cannot bind its successors, its successors cannot be liable for the “actions” of its predecessors. This is contrasted with the government, or executive, that has a continuing personality since it represents the Crown as the state, which has continued existence.
Another problem is the necessary search for the directing mind(s) that would allow for a court to find the necessary maliciousness, bad faith, or abuse for a decision taken by over 400 independent constitutional actors, with varying political backgrounds, making decisions for various personal and political reasons, often based on majority votes (implying negative votes) taken within separate institutions. Even assuming one settles on the Minister who introduced the Bill as providing the basis for founding the intent of the Bill that became an Act, to carry this notion to the extent that one could infer a malicious intent on the institutions that constitute Parliament would be to diminish the institutions and their members to constitutional meaninglessness. All the democratic underpinnings of legislative bodies composed of multifaceted political, geographical, personal and representative interests combing views through debate and compromise would be collapsed into the minister or government which only comprises a portion of each House. The Crown, as represented by ministers, does not form Parliament. In the extreme this is the antithesis of democratic parliamentary government.
The framework argued for by the plaintiff (Mr. Power) and essentially endorsed by the court is one that does not fit, and should not be made to fit, litigation seeking damages for legislation found to be unconstitutional. To stretch the common law causes of action and responsibility to this extent distorts the constitution and fails to recognize the unique place of parliamentary institutions within the constitutional architecture. At the same time, the state should not be able to hide behind the consitutional protections that ensure the independence of parliamentary institutions from intrusions by the Crown (government) and the courts to protect the executive (government) from the consequences of laws found to be unconstitutional. The Crown’s relationship with the courts is between those branches of the State. Parliamentary privileges only come into play to protect the parliamentary institutions and their proceedings.
That the legislative and legislating function of parliamentary may be protected by privilege and constitutional architectural reasons from direct legal action, does not mean that the Crown in its capacity as representing the State cannot be held liable for potential damages suffered by citizens at the hand of the State. What is important is to recognize that these infringements of rights are not caused by private actors and therefore any alleged damage caused should not be remedied through private law causes of actions. They should be addressed through public law processes that respect the constitutional roles of each branch including the various factors, privileges, powers and authorities required of each to carry out constitutional functions. In the same way that judicial review is different from an action in contract, tort or property, with standards, factors and remedies that are tailored to the place of the executive in the constitution, any court review of potential remedy flowing from laws found to be unconstitutional must respect the unique place and role of Parliament in the constitutional order. The answer does not, and cannot, lie in trying to fit any “liability” into a common law framework designed for private claims, or even claims against the Crown as executive.
An unintended consequence of allowing damages based on private law tort concepts is that although initially applied to constitutional damages, it could become the basis for future non-constitution based claims for legislation argued to be in “bad faith” or enacted as a result of an “abuse of process”. There is little in the judgment that indicates that any such tort-based analysis is uniquely applicable to a finding that the legislation was first declared unconstitutional. By using a tort analysis, the court opens the door to expanded claims not necessarily related to the enactment of unconstitutional legislation.
If there is a need to deal with damages that flow from a law being declared unconstitutional, that framework must respect the constitution and the roles, nature, and function of the parliamentary institutions, yet at the same time provide for remedies that address the situation. This can only be done if the right question is directly posed and directly answered. Trying to fit the “problem” into a framework designed for other legal problems, or to try to avoid answering the issue by applying principles not intended for the purpose asserted can only lead to a distortion of the constitution with potential for unknown consequences. There may be a basis for seeking damages for the application of laws later found to be unconstitutional. However, any such analysis should be anchored in constitutional and public law concepts and principles not private or common law ones.
On June 29, 2022 the Hill Times published my op-ed in which I outlined the problems of security and policing if the parliamentary precincts are extended to include areas that are at present within the jurisdiction of public policing. The article is attached and republished here with the permission of the Hill Times.
In the recent decision of Alford v AG Canada 2022 ONSC 2911, the Ontario Superior Court of Justice ruled that the privileges of the federal Parliament could not be limited by legislation passed by Parliament alone, but rather any diminishing or limiting of parliamentary privileges would require a constitutional amendment, including a degree of support by provincial legislatures. Oddly, the decision would allow the expansion of privileges for the House of Commons and Senate by federal legislation, so long as the expansion did not exceed the privileged of the UK House of Commons at the time of the legislation.
Before outlining my concerns with the decision, first the background.
Like many countries there is a tension in Canada between the need for a government to protect information the disclosure of which could cause damage to national security and Parliament’s ability to hold the government to account. This accountability function includes issues that have a national security component. In the case of non-parliamentarians, governments can control access to the information, and back up protection from disclosure with criminal law sanctions. However, with respect to Parliament, the government is accountable to the House of Commons (and to a lesser extent the Senate) for all aspects of its business, including national security, and can be compelled to produce information to the House or be faced with contempt proceedings and potential loss of confidence. In addition, any disclosure of information within a parliamentary proceeding would be fully protected by parliamentary privilege such that a person disclosing information in the proceeding would not be able to be criminally sanctioned for such disclosure. There are various mechanisms used in different countries in order to protect both the security of information and to allow for the necessary parliamentary oversight. Some are based on parliamentary processes and sanctions, some are legislated, and some are a mixture of both.
To address the issue in Canada, Parliament enacted the National Security and Intelligence Committee of Parliamentarians Act. The Act set up a committee of parliamentarians with which the government would share secure information. The committee was not a committee of either House. Any report or concern would be provided to the Prime Minster who would be able to determine what, if anything would then be tabled in the House. For the purposes of the Alford case three aspects of the legislated regime are of note. First the committee was not a committee of either House. Second, the members of the committee had to swear the necessary oaths of secrecy. Third, and most importantly, section 12 of the Act allowed members to be prosecuted for any disclosure of secret information and disentitled the members from relying on parliamentary privilege for any disclosure that would otherwise be protected by privilege. In short, members could not discuss the work or information in parliament without the risk of prosecution, and they would not be able to claim the protection of privilege.
Alford, a law professor, brought an application in the Ontario Superior Court of Justice, as a public interest litigant, arguing that the provision limiting parliamentary privilege was beyond the legislative competence of Parliament, and that since parliamentary privileges formed part of the constitution, any legislated limits on privilege would need to comply with the amending provisions of the Constitution Act, 1982. The court agreed, declared that the provision limiting privilege was unconstitutional and that in order to impose the limit the amending provisions of the constitution requiring substantial provincial agreement must be followed.
The reasoning of the court is relatively straight-forward. The preamble of the Constitution Act, 1867 provides that the constitution of Canada is similar in principle to that of the United Kingdom. This means that Canada’s government is a Westminster system, that includes a Parliament that enjoys the privileges enjoyed by members of the UK Parliament. In addition, the Canadian Parliament can enact a statute that sets out its privileges. It has done so in section 4 of the Parliament of Canada Act claims all the privileges of the UK House of Commons for the Canadian Parliament. The combination of these provisions, along with jurisprudence of the Supreme Court, has confirmed that the privileges of Parliament form part of the constitution. The court in Alford then examined the question of whether the provision that allows Parliament to define its privileges allows Parliament to limit privileges, or whether there are other amending provisions that would allow Parliament to do so. The court concluded that the privileges in question were constitutional and fixed, that the provisions of the Constitution Act, 1867 only dealt with the expansion, not the limiting, of parliamentary privileges. Further, the court concluded that since the privileges formed part of the constitutional architecture, use of the general amending formula, requiring Parliament’s support as well as substantial provincial support, was necessary to limit the privileges.
I would suggest that the court was wrong on all counts, and that although I profoundly disagree with the approach of the legislation, the law was within the power of Parliament alone to enact. Any other conclusion would allow both the courts and the provincial legislatures unwarranted and unconstitutional capacity to interfere with the privileges of the House of Commons and the Senate of Canada.
First, an examination of parliamentary privilege reveals that they belong to the House of Commons and the Senate to define and assert. Although the courts can determine whether the scope of any claimed privilege exceeds what is necessary for a legislative assembly to carry out its constitutional functions, the courts have no capacity to determine what the legislature can determine for itself what it needs in the first place. The issue for the courts is scope not content. This suggests that the issue of what privileges are necessary is a question that is first to be determined and asserted by House and the Senate themselves. Whether they choose to do so singularly by standing orders, or jointly by legislating (with Royal Assent) is for them to decide. The only issue for the courts, as a matter of scope, is to determine if they have gone too far, not whether they have gone far enough.
As noted in the case, there are two constitutional bases for privileges for the Parliament of Canada. The first is the preamble of the Constitution Act, 1867 that provides that Canada is to have a constitution “similar in principle to that of the United Kingdom.” From this is derived the concept that the privileges enjoyed by Parliament and legislatures are similar to those in the UK. In the context of the Alford case, one must ask whether included in the privileges of the UK House of Commons and House of Lords there is a capacity to legislate, with the Queen’s assent, limits on their privileges. The answer to this question is clearly yes. Although there had been numerous claims of privilege prior to the 17th century, the primary statement of privilege is itself found in a statute, the Bill of Rights, 1688, which includes language relating to freedom of speech and protection from prosecution for what is said in Parliament. While there is some debate as to whether a legislative assembly can waive these privileges, all cases that have examined the question have determined that because the privileges are found in a statute the statute can always be amended. In addition to the freedom of speech and proceedings, there are or were other privileges enjoyed by Parliament, including certain immunity from lawsuits. Although the particular privileges involved are not relevant to the Alford case, what is relevant is that they have been limited by statute in the UK; see for example, Parliamentary Privilege Act, 1737; Parliamentary Privilege Act, 1770; amendments to the Defamation Act, 1996; and, the Enterprise Act, 2002. Most recently, there has been consideration of legislation that would remove protection from members who divulged the content of super-injunctions or other confidential court proceedings (see Green Paper, Parliamentary Privilege, presented to Parliament by the government House Leader (UK) 2012). There is no doubt that in the UK Parliament has always been able to legislate to limit is own privileges and that this legal fact was known to the drafters of the Constitution Act, 1867.
Second, in light of the foregoing understanding of privilege, it is difficult to accept the court’s limited reading of Parliament’s power pursuant to s.18 of the Constitution Act, 1867. Section 18 provides:
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.
The reading of this provision by the court was extremely narrow, and inconsistent with both rules of statutory interpretation, that provide for a liberal and expansive interpretation of statutes, and constitutional interpretation principles including readings consistent with other aspects of the constitution.
From a statutory interpretation perspective, it is clear that this provision is permissive but with a limit. Parliament can enact legislation but only up to the point that the privileges do not exceed those of the UK House. There is no lower limit, nor any restriction on legislating within that outer extent, including limiting privileges. This is not only a better statutory interpretation reading but is also consistent with notion of “scope” of privilege whereby the courts have consistently held that they can only determine the scope of privilege, not its exercise or specific content within that scope.
There can be little doubt that the content of s.12 is purely internal to Parliament. What Parliament did by statute could also have been achieved by the internal rules of each House. If such a process had been used, there is no doubt that the “rule” would be beyond the jurisdiction of the courts to review, and well beyond the authority of any provincial legislature to opine on or veto.
In addition to the privileges over speech and proceedings anchored in the Bill of Rights, 1689, the privileges, Standing Orders and conventions of each House include rules relating to the conduct of proceedings, discipline of members and conduct of debate. For example, members may not comment on ongoing court proceedings (sub judice rule), the work of the other House, the governor-general or lieutenant governors. In addition, there are rules relating the holding of in camera meetings without out publicity and the capacity to find Members in contempt and sanction them for divulging information heard in these closed meetings. All these powers could be configured so as to reach the same result as s.12 of the National Security and Intelligence Committee of Parliamentarians Act, and as Standing Orders and decisions of a House they would be beyond the reach of the court to review. How putting them in a statute would change the constitutional authority of the Houses is hard to figure. As noted by the Supreme Court of Canada in Vaid v Canada 2005 SCC 30, merely stating a privilege in a statute does not change the nature of the subject matter as being privileged. A similar reasoning can be applied in this case. If legislative assemblies can do something by internal regulation, how can a constitutional provision be read so that it cannot do so by statute?
The result of the decision, that a consitutional amendment to self-limit a privilege requires resolutions of other jurisdictions, is also seriously flawed. Assuming for the sake of argument that parliamentary privileges are equivalent to constitutional provisions that require a constitutional amendment to change (leaving aside the limited meaning of s.18 of the Constitution Act, 1867) the court had to consider what amending formula would apply. It had two choices. The federal government’s counsel argued for section 44 of the Constitution Act, 1982 which provides:
Subject to sections 41 and 42, Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons.
Notwithstanding that section 44 is only subject to sections 41 and 42 the court provides little analysis of how either of these sections particular sections were engaged.
The court rejected the formula set out in section 44 in favour of one that would require significant involvement and concurrence of several provincial legislatures. To support its conclusion, the court references the Supreme Court of Canada decision in Re Senate Reform which considered the constitutionality of government proposals that would have effectively changed the nature of the Senate from an appointed chamber to and elected one. The court in Alford does so without considering that the Supreme Court decided the Senate Reform Reference on the basis that the proposed reforms would fundamentally change the constitutional architecture in a way that engaged provincial interests. One of the underlying reasons for the establishment of the Senate was to protect provincial and regional rights against a House based on popular representation that empowered more populous provinces. Such a fundamental shift in the architecture of Parliament, the court concluded, required the use of an amending formula that engaged the provinces, not one that was only focused on the internal workings of Parliament. The statute at issue in the Alford case is a far cry from fundamentally changing the architecture of the constitution in a manner that implicates the provinces.
In fact, the result of the Alford decision is one that would unduly allow the provinces to involve themselves in the inner workings of the federal Parliament. This is not only antithetical to the independence of Parliament from outside interference, it strains and upsets the principle of the division of powers between the provincial and federal levels of government. The division of powers under the Canadian constitution provides for the division of legislative powers between each level of government such that each level of government enjoys exclusive jurisdiction over enumerated matters. The result of this division of powers is that neither level of government has the ability to pass legislation, or pass resolutions, that would have the effect of interfering in the business that the constitution assigns to the other level of government. The doctrine underlying the division of powers is also reflected and respected in the amending formulae in the Constitution Act, 1982. This can be seen in section 44, discussed above, and in section 45 which gives provinces the ability to exclusively “ make laws amending the constitution of the provinces,” and section 43 that allows for a process for constitutional amendments that affect only some provinces, which only involves those provinces and the federal government. None of these sections would be applicable to constitutional matters of a national nature or that affect the federal government and all provinces. Nor is this a matter that affect rights under the Canadian Charter of Rights and Freedoms, that would apply to the legislative competence of all levels of government. The parallels between sections 44 and 45 enhance the division of powers and would suggest that when a matter only affects the internal workings of legislative branch at one level of government, that level of government has the exclusive constitutional ability to legislate with respect to those institutions. Further, each jurisdiction may legislate in a way that may affect the constitutional functioning of its own legislative assembly, without any involvement and potential interference from other levels of government. Like the Parliament of Canada Act¸ at the federal level all provinces have enacted similar Acts respecting their own legislative assemblies.
The privileges of the House of Commons and the Senate have been described as falling within the “exclusive cognizance” of each House and beyond the jurisdiction of the courts to interpret, apply or, when exercised by a House, judicially reviewed. Privileges have also been described as “one of the ways” that the independence of Parliament from the Crown and the Courts is “vouchsafed”. If consideration of whether and when privilege will apply, or disapply, to members is not a matter that exclusively rest with the federal Parliament, either legislatively or within the subject matter of section 44 of the Constitution Act, 1982, it is almost impossible to imagine what would.
It may not be wise or advisable for Parliament to limit the privileges of Parliament and its members by limiting their freedom of speech, putting its members at risk of prosecution, and curtailing their ability to hold the government to account by shielding certain government activities from parliamentary and public scrutiny. However, it has, and must have the ability to do so, without interference from the courts or the provinces. The combination of section 18 of the Constitution Act, 1867 and section 44 of the Constitution Act, 1982 makes this abundantly clear.