“WE” Don’t Need Lawyers at Parliamentary Committees

The Kielburger brothers, as leaders of the WE charity, were summoned to appear before the Ethics Standing Committee of the House of Commons to provide testimony on what has become known as the WE Charity Scandal. The matter involves a contract with the government to oversee a student volunteer grant program.  It is alleged that the Prime Minister’s family had close ties to the charity at the time that the contract was awarded.

Before the summons was issued, the brothers’ lawyers indicated that the brothers would not appear even if summoned.  The reason given was that the brothers were under investigation by the police and revenue agencies in Canada and the United States, possibly in response to a letter by a member of the committee to such agencies urging them to conduct the investigations.  The Committee was properly upset.  They condemned the response as contemptuous, and issued the summons indicating that failure to appear could result in a finding of contempt of Parliament, with the ultimate consequence being imprisonment.  It would now seem that the brothers’ lawyers are prepared to have their clients appear so long as they can appear with counsel.

The condition of allowing witnesses to appear with counsel is one, that if accepted by the Committee, could set a dangerous and unwarranted precedent.  Those who are insisting on the condition, and the parliamentarians who are tempted to allow it, all miss the point, purpose, and precedents of parliamentary committees.

Parliamentary committee proceedings are not legal proceedings. Nor should they become such. They are parliamentary proceedings.  The function of committees is to inquire into public business and concerns as part of advancing a public purpose including the holding of government to account.  Their purpose is not to judge individuals, but to examine the role played by government officials and Ministers, both in decision and policy making. Included in these inquiries can be an examination of the ethical behaviour of the government officials in the carrying out their functions.  There is no doubt that at times this may involve calling individuals as witnesses to understand their conduct in relationship to the government and the influence they may have had on the decisions of the government.  But the focus of the inquiry must always remain focused on the government and Ministers.  The focus should not be on the correctness of the behaviour of non-government actors.  The propriety or legality of behaviours of individuals is the proper domain of administrative systems, such as revenue agencies, and justice systems, being the police and the courts.  They, not Parliament, are constitutionally charged with deciding the consequences for non-governmental actors.

Although a difficult needle to thread, it is important that committees understand the limits of their inquiries and the relative responsibilities of the other actors within the Canadian constitutional structure.  This does not mean that Committees should in any way shirk their responsibilities.  It means that they should act responsibility and with respect for the constitutional roles of others. This is why there are various self-constraints on parliamentarians such as the sub judice convention that is applied to avoid discussion on matters before the courts, and why committees will sit in camera when they discuss information that could be used improperly by others, including business competitors and the police. If committees go too far, there may be political, public and legal consequences.  Parliamentarians can make the job of investigators and the courts quite challenging.  Investigators may have a difficult time tracking the same facts when they do not have access to parliamentary material, and public opinion can make judicial proceedings almost impossible where the public and parliamentarians seem to have pre-judged the matter.

There are undoubtedly times when the facts being discussed and considered by a parliamentary committee will overlap with the subject of other proper legal and administrative investigations. This is when the temptation for lawyers to become involved is the greatest.  They are attuned to think of concepts such as double jeopardy and their client’s right to remain silent.  They also are concerned that what their clients may say, or what is insinuated by committee members, might be used against them in investigations and legal proceedings.  They might point to various Charter provisions that give rights to individuals in such circumstances.  The lawyers will argue, that their clients need to have counsel present to protect their legal interests and to insure that the committee does not put them in such legal jeopardy.  What the lawyers fail to recognize is that parliamentary proceedings are not legal proceedings, so questions of jurisdiction and scope are not hard and fast, nor justiciable.  More importantly they fail to recognize the absolute constitutional — read legal with a capital “L”– protection their clients enjoy from any legal or administrative consequences for what they say or present before the committee.  Their clients, as participants in a parliamentary proceeding have the same privileges as Members.  What they say is fully protected by parliamentary privilege, a constitutional privilege that must be respected by the police, the courts and administrative agencies.

The main pillar on which Parliament stands is the Bill of Rights, 1689, in particular Article 9 that provides “that the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.”  This section is not only a protection of the freedom of speech.  It is also a constitutional prohibition on the use of the debates and proceedings being used against an individual in any court or anywhere else outside of Parliament. This includes use of proceedings by the police or any agency as evidence or as the basis for any inquiry.  Witnesses do not need lawyers to protect them.  Witnesses have both the constitution and Parliament at their back.  If the lawyers are looking from whom they need to protect their clients, it is the courts, the police and government agencies.  And the tool they have is parliamentary privilege and the constitution.

For those who think that this is point is merely theoretical and political, they need only remember the dual track inquiries undertaken during the Sponsorship “scandal”.  The Public Accounts Committee was investigating the same facts as the Gomery Commission.  There were times when it appeared that the two inquiries were on a collision course, but because of the privileges afforded witnesses before the parliamentary committee the testimony before the committee could not be used before the Gomery Commission.  After seeking the permission of the House of Commons to waive privilege, which was denied, Justice Gomery ruled that contradictory testimony could not be introduced or used before the Commission.  This decision was upheld in the courts.   In the case of investigations, there was the case of Barbara George, who testified before a committee.  Based on her testimony and participation before a committee, the RCMP initiated disciplinary action against her.  On judicial review, the courts, relying on parliamentary privilege, quashed the disciplinary proceeding because the investigation that led it was based on the facts and evidence before a parliamentary committee.  In short, testimony before a committee cannot be used before a court. Nor can it be used as the basis for an inquiry that would lead to legal or administrative consequences.

It is this foundational principle that not only protects witnesses, but that compels them to answer all questions put to them by the committee.  Since there can be no legal consequences, there is no legal basis on which to refuse to answer questions.  Since there is no legal basis for not answering there is no need for lawyers.   Parliament is entitled to ask whatever questions it wants answered, and witnesses should have no fear of any consequences for their answers.  The constitution and Parliament will protect them.  That is the law.  Both Parliament and the legal system depend on it.

Parliaments and the Pandemic Reviewed

My review of Parliaments and the Pandemic, a major study by the UK Study of Parliament Group has been posted on the UK Constitutional Law B Blog S. Chaplin, ‘Review of Parliaments and the Pandemic’, U.K. Const. L. Blog (8th March 2021) (available at https://ukconstitutionallaw.org/ .  The study is a major undertaking on the effects of all aspect of the operation of Parliament and should be read as a guide for all who are working on how to address the pandemic’s effects on Parliament now and in the immediate future.

Supreme Court denies leave to Senator Duffy — Confirming Exclusive Jurisdiction of Senate to Discipline Members

On February 11, 2021 the Supreme Court of Canada refused Senator Duffy’s leave to appeal to the Supreme Court of Canada.  The court’s refusal leaves the strongly worded of the Ontario Court of Appeal decision as the leading authority in Canada on the exclusive jurisdiction of legislative assemblies to discipline members without review or interference by the courts. As is its practice, the Supreme Court gave no reasons for its refusal For my take on the case as it worked its way through the lower level courts see my blogposts in December 2018 https://lexparl.com/2018/12/21/no-cause-of-action-for-senator-against-the-senate-for-wrongful-suspension-and-financial-consequences/ and September 2020 https://lexparl.com/2020/09/01/parliamentary-privilege-a-question-of-jurisdiction/ 

Protecting Democracy

The images and events of January 6, 2021 when thousands of protestors, insurgents, insurrectionists, or patriots (depending on your point of view) physically assaulted the US Capitol Building require reflection, investigation, and response.  What is equally troubling is that at the time, both the US House of Representatives and the US Senate were in session to certify the votes of the electoral college that would formally make Joe Biden President of the United States. More significantly the vote would confirm that Donald Trump had lost the election.  This was something that the insurgents would not accept and were bent on physically stopping.  And if it took physical violence, including assassination, so be it. 

All that seemed to immediately stand between the insurrectionists and their objectives was the United States Capitol Police.  This small, specialized police force has as its mandate to “Protect the Congress—its Members, employees, visitors, and facilities—so it can fulfill its constitutional and legislative responsibilities in a safe, secure and open environment.”  It was created shortly after the Capital was moved to Washington.  Its members operate independently of other police and are under the direction of the two presiding officers.  Their physical jurisdiction includes the Capitol Building, offices of the Legislative Branch and the Capitol Grounds (126 acres). 

As a result of the events of January 6, a review of security and the systems in place, including the efficacy of the US Capitol Police, is underway. 

Unfortunately, the pattern of events and follow-up are not unknown in other democratic countries.  For example, on the morning of October 22, 2014 I had business in the Security Office of the Canadian House of Commons.  Just as I arrived, I was met by a “scrambling” of security personnel to respond to an armed intruder entering the Parliament Buildings.   The parliamentary security personnel managed to secure the rooms in which Members were holding their caucuses and, backed up by the RCMP, they were able to isolate, shoot and kill the intruder.  The incident was followed by an investigation, which included the inevitable questions of how an armed intruder who had shot a military guard at the National War memorial (policed by the RCMP and local police), was able to cross a major street (policed by local police), cross the lawns of the precinct (policed by the RCMP) and enter the Parliament Buildings (protected by House of Commons and Senate Protective Services) before being confronted.  Not only was the specific incident the focus of the inquiry, so were the questions of the multiplicity of policing and security personnel, interoperability, communications, authority and accountability.  The result was the statutory creation of the Parliamentary Protective Service with authority shared between the two Speakers and the RCMP.  Although the Canadian experience was on a smaller scale than that of January 6, both incidents (and similar incidents around the world) raise questions and concerns relating to the security of democratic institutions. 

The initial reaction to such incidents seems to cast a critical eye on the internal security and policing personnel within the legislature, and their alleged failure to do their job. This shallow analysis results in a first response, often by a number of parliamentarians, that the answer to the security question is to do away with specialized security and to allow established national policing organizations to provide the necessary policing and security.  Their members are fully trained and resourced. They can provide seamless security both inside and outside of the physical buildings and grounds, with a greater geographical perimeter. There will be no communication or operational gaps or delays. And, they have significant personnel reinforcement and co-ordination capacity. However, on reflection the use of “regular” police services may present more difficult problems than the one sought to be remedied.

One only need consider that in most countries the “regular” police serve and are accountable to the executive.  They report to a Minister, Attorney General or Secretary of State who form part of the Executive branch of the State.  These officials, in turn may be accountable to the Lower (or only) House or Assembly or be subject to the various “checks and balances” inherent in states with constitutions that depend on varying degrees of separation of powers between the executive and the legislative branches.  Depending on the nature of the relationship between the executive and the Legislature, there are times when the executive is the greatest threat that the legislature may face. In some countries, the use of police to harass and interfere with assembly members and proceedings is not unheard of. 

And, although, virtually unthinkable a year ago, the President of one of the world’s “great democracies” has been impeached for inciting an insurrection aimed at Congress.  Had the internal protection and security of Congress been under the “control” of the military (whose commander in chief is the President) or federal police (whose Director could fall under political pressure from the President) the divided loyalties and constitutional concerns could have been considerably more distressing than those exposed by the impeachment proceedings.

In the Westminster system, the independent security for Parliament has roots more than 600 years old.  In 1415, the King gave one of his Sergeants-at-Arms to Parliament, in essence to provide security.  The Sergeant, once appointed, took direction from the House and not the King.  The appointment was part of the King’s responsibility to “provide ease and tranquility of those that come to His Parliament”.   In the run up to the English Civil War, the King, for the last time in history, entered the House of Commons.  He came with men at arms (police equivalent) to arrest certain members for treason.  His actions exacerbated the tensions between the Crown and Parliament, resulting in a Civil War, the execution of the King, and ultimately the Bill of Rights¸1689 that cemented the independence of Parliament from the Crown.  Throughout this time, and to date, the independence of the House of Commons has been assured through a system of security and policing that is ultimately managed by the Speakers and the Sergeant-at-Arms.

It is proper for there to be an investigation following any major breach in security.  It is also inevitable that the call may be made to abolish internal policing and security as not up to the job and that it ought to be replaced with “normal” or “regular” police.  But policing goes far beyond security, and creates a real risk that the executive might use is responsibility to police to carry out or support physical and other threats to the legislative branch. 

Policing is more that addressing threats to physical integrity.  There are other potential police and state intrusions into the legislative branch that would be more corrosive of democracy.  The powers of investigation, search, and arrest (the lifeblood of policing activities) pose equal, if not greater, dangers.  Use of the capacity to gather information from legislative and political opponents for use against them would be the end of independent legislatures.  It is protection from these threatened activities that is the basis for many of the parliamentary privileges enjoyed by legislative bodies and their members throughout the Commonwealth and around the world.  The freedom of speech, the protection from molestation and obstruction, and freedom from arrest, among others, are manifestations of the protection of Parliament and its members from interference, including investigation, by state actors from outside the legislative branch. As noted above, the constitutional entrenchment of the independence of Parliament and its assertion of rights effectively flows from a botched arrest.

More recently, investigations into police raids on members’ offices in both Washington ( Rep. Jefferson) and London (Green MP) sparked understandable outrage from members of the House of Representatives and the House of Commons.  In the United States the search of the office was found to be unconstitutional based on the speech and debate clause (loose equivalent to Article 9 of the Bill of Rights 1689). In the UK the Sergeant-at-Arms lost her job and the House resolved a protocol that controlled the execution of warrants within the precincts and MP’s offices.

Allowing police into a legislature without significant Assembly (or House) oversight, direction and accountability is both wrong and dangerous in a democracy.

This does not mean that legislatures are lawless and that legislators are above the law.  What it does mean is that the provision of security for, and administration of law as against, legislatures and legislators is complex and requires careful thought and calibration.

Members and their legislative institutions must be safe and secure.  They must also be independent from any potential interference from outside influences.  In both cases the greatest threat is domestic and there is always a risk that “attacks” (both physical and otherwise) on the legislature may be supported or encouraged by the executive, which fears democratic oversight, accountability, and potential loss of power.  As a result, the ultimate decisions relating to the security of, and policing within, the assembly buildings, or precincts, must rest with the assembly itself.  It may be that the answer is to have a dedicated security and/ or police service under the direct supervision and control of the presiding officers.  Other models include arrangements with local or national police to provide such services but under strict rules based on constitutional authority.  Such contracts must recognize that when carrying out any functions pursuant to the arrangement the “police” are acting under the authority of the presiding offers, from whom they must take orders and seek authority, both in the exercise of their duties and in the sharing of information with their “usual” superiors.  This way, both the security and the constitutional independence and privileges of the assembly are protected.

This conclusion is not to suggest that there ought not to be an inquiry into what occurred. Since it involves security and policing of the legislature, the legislature must take the lead and ultimately decide on any recommendations made.  No doubt some concerns raised will focus on weaknesses with the Capital Police (or parliamentary security forces and arrangements) and problems with communication and co-ordination with those responsible for security beyond their jurisdiction. These will need to be addressed, and some organizational and operational structures may need to change.  But that cannot be the end of the inquiry.

On both January 6 in Washington and October 22, 2014 in Ottawa, the “incident” began outside the jurisdiction of the internal legislative security force.  The perpetrators came from beyond the precincts. And that area is the responsibility of public officials (i.e. the executive).  The failure to understand and protect against the threat to, not within, the precincts is a more significant question.  What steps did the outside forces take to protect the democratic institutions in their midst?  Were the decision makers complicit in leaving the boundaries of the precincts liable to being overwhelmed and breached? 

This in turn raises even more serious questions relating to policing authority and operational independence from executive decision makers.  The concerns identified at the beginning of this post that suggest the need for independent security for legislative assemblies are heightened by every degree to which there is concern that the police, and those responsible for the perimeter security, are subject to executive direction.  One of the more constitutionally chilling comments of protesters on January 6 was their yelling at Capitol Police that the President was their boss.   Even if this is impressionistic, it is troubling for democracy and more troubling for democratic institutions. 

An examination of physical violence against a legislative assembly and its members must not be allowed to be cover for an attack on and “reform” of internal legislative security, particularly if the potential is to replace it with “regular” policing.    Such security personnel carry out a specific and limited, but constitutionally significant, role of ensuring security for, and independence of, another branch of the state.  Legislators must be able to rely on the greater apparatus of the executive state to literally keep the barbarians from the gates, and to allow internal security personnel to keep order within.  Independent legislatures must be allowed their independent constitutional and physical space to carry out their functions that are at the heart of democracy.  Legislators must be secure in the knowledge that they can rely unconditionally on the loyalty and capacity of those who provide security within that space.  The rest of us must also make sure that the government takes the necessary steps on our behalf to protect the legislative perimeter and reliance on a properly trained, and supported, independent legislative security service is a last resort.

Judicial Salaries and Parliamentary Privilege

The final determination of compensation for judges by legislatures has created a constitutional threat to the independence of legislatures which has yet to be properly addressed.  All the litigation, and much of the academic focus, has been on the “rule of law” and the independence of the judiciary.  Little or no thought has been given to the constitutional functions of the legislature, the independence of the legislature or the basis for courts or others to interfere with decisions of the legislature.   Treating decisions of the legislature in the same manner as decisions of administrative tribunals, and against legal as opposed to constitutional standards, risks serious damage to the constitutional architecture and to the carrying out of constitutional functions by legislative bodies free from interference by the courts.

One would expect any case brought before the courts seeking “an order in the nature of certiorari quashing the motions of the Legislative Assembly”, “a declaration that the government response and the Legislative Assembly resolution did not conform to…the Act”, and “a direction to the Attorney General … as to the content of a new motion to be placed before the Legislative Assembly”, to raise serious parliamentary privilege concerns.  Such proceedings would usually be met by arguments that the court was being asked to question or impeach legislative proceedings and thereby interfere in them.  However, when the applications deal with judicial salaries there is no mention, let alone discussion or analysis, of these fundamental constitutional questions. The recent decision in Provincial Court Judges’ Association of British Columbia v British Columbia (A-G) 2020 BCSC 1264, from which the prayer for relief set out above is taken,  is just the latest example where the serious intrusion by the courts into the proceedings of a legislative assembly has taken place without any consideration of the constitutional privileges of the Assembly, its role and its independence from interference by the courts.  A review of all the jurisprudence cited and relied upon by the BC court reveals that in none of those cases was this issue raised or considered.  This is a serious omission which ought to concern all legislative and deliberative bodies, and those who elect them.  Without any reasoning or explanation for such intrusions into the functions of independent legislatures, the risk is that these cases will be used as precedents for further intrusions.

Before going further in my analysis, I am certain that some will point to the fact that the courts were considering and protecting the constitutional “principle” of judicial independence, so it was permissible them to effectively ignore “parliamentary privilege” and parliamentary sovereignty by directly questioning legislative proceedings, by way of judicial review.  But how can this be reconciled with the recent decision of the Supreme Court of Canada in Mikisew Cree,  where it was determined that even when constitutional “rights”, not mere “principles” , are at stake in parliamentary proceedings, the courts cannot question or impeach theses proceedings? There may be an analytical framework for justifications and exceptions to the constitutionally entrenched “absolute” privileges of legislative assemblies.  It is incumbent on courts to provide one. To date none has been given.

The Provincial Judges Salaries cases in the Supreme Court of Canada that determined that the establishment of judicial salaries could affect judicial independence. They therefore required a mechanism for determining salaries at arms length from government to be established.  The result in most provinces, including British Columbia, is a process involving a judicial salaries commission and a government response with the final determination made by the legislature.  The process starts with the establishment of a commission to determine salaries. The commissions usually are to examine relative judicial salaries in other jurisdictions, the salaries in the legal community from which judges are appointed, economic conditions such as inflation, and the ability of governments to pay.  The government is one of the main players in presenting evidence and analysis before the commission.  Based on evidence and argument, the commission issues a report indicating what it believes judges’ salary and benefits, including pensions, should be.   The government is then required to submit the report to the legislative assembly along with any government response to the report.  Often the government’s response is critical of the findings of the commission that did not accept the government’s position.  The legislative assembly then considers the report and the government’s response, finally determines what the salaries and benefits are to be and votes the necessary appropriations.

Those who are not satisfied with the decision of the legislature may then seek to have the courts review it.  The British Columbia case is indicative of the approach taken by lawyers and the courts to date.  The cases have all failed to recognize the constitutional role of the legislature and its members.  They treat the legislature as an administrative body making a legal decision.  They seek to have the courts apply standards of “reasonableness” and natural justice from the administrative law and judicial decision-making world to legislative decision-making.  But legislatures are not legal decision-making bodies in the judicial or administrative law sense.  As many Speakers have reminded legislative bodies, they may make laws but they neither interpret nor apply them.  They make legislative decisions through parliamentary processes.  They are bodies composed of both government and opposition members responsible for, among other matters, making decisions on proposed legislation, taxation and spending.  Their deliberations and processes are by nature political, partisan and unconstrained (except by internal rules).  The bases for making any particular decision cannot be and are not strictly constrained by statute law.  Even when a statute purports to apply to the internal workings of a legislative body, the courts have accepted that it is up to that legislature, and not the courts, to exclusively and without judicial interference determine if and how the law is to apply to its decision making (see Bradlaugh v Gosset (1884), 12 QBD 271, cited with approval in the Supreme Court in Canada (House of Commons) v Vaid 2005 SCC 30 paragraph 34).

To treat legislative bodies as if they were administrative tribunals, requiring them to follow particular procedures and to consider matters in a particular way, improperly invites the courts to make decisions on the procedures used by the legislature, contrary to the Supreme Court of Canada’s decision in Mikisew.  Judicially reviewing the legislative assembly’s reasoning on substantive legal grounds is contrary to the Bill of Rights, 1689 and the decisions and reasoning cited in Vaid. Such review would be a failure to recognize the constitutional role and independence of the assembly which is fundamental to the constitutional architecture of Canada.

This is not to suggest that a final decision of a legislative assembly, either through enacting statute or by resolution, cannot be subject to judicial review on constitutional grounds.  In Canada, legislative bodies are constrained by the Constitution.  Review for jurisdictional error based on the division of powers has been a limit on legislatures since confederation, and constraints based on the Charter have been present since 1982.  Legislation and decisions that do not meet these standards have been negated or modified by the courts.  In such cases the courts have been careful to weigh the constitutional doctrine of parliamentary supremacy with the consitutional provisions at issue.  This weighing has taken various forms, all distinct from mere statutory interpretation and application.   Often other constitutional principles, actors and interests shape the jurisprudence of consitutional review, each in its own particular way.

What is at issue in the case of judicial compensation is the consideration of the degree to which the constitutional principle of judicial independence, and its subsidiary condition of financial independence, is a constitutional constraint on the decision-making capacity of legislatures, which is only limited by the constitution.  To restrict or overturn the decision of a democratically elected legislative assembly that has its constitutional roots in the doctrine of parliamentary sovereignty and political accountability is no trifling matter.  There must be good and justifiable constitutional reasons.  The role of independent legislatures is no less constitutionally important than judicial independence.  And its pedigree in the Westminster system of government is longer and more entrenched.

Balancing these constitutional concerns is not a simple legal exercise.  Because of our constitutional arrangements, the courts are given the final word on constitutional questions, including their own constitutional independence.  In considering questions concerning their own remuneration they must be hyper-vigilant not to be seen as self-serving or unaware of the constitutional roles and responsibilities of other constitutional actors.  Courts must not only consider the outcome of their decision, but also the messages conveyed by the court process followed and the reasons given for reaching the decision. Their decisions can have a lasting impact on other institutions including to the internal proceedings of those institutions. Further, their decisions can affect future litigation and the way it shape the constitutional relationship between the courts and legislatures

Courts and lawyers cannot, and should not, merely apply traditional legal standards and analysis to questions involving the intersection of constitutional principles.  To do so could have considerable unintended consequences.  What is required is a unique analysis applicable to each unique constitutional problem.  In this context what is required is the weighing of judicial independence with the constitutional functions and independence required of legislatures when exercising their responsibilities for budgets and public policy, including the integration of judicial salaries within the body politic and the constitutional framework.  The decision-making scope and responsibility of the legislature is different from that of any commission or outside entity.  In examining the decision of the legislative assembly the courts must  not only consider the principle of judicial independence, but also the principles of parliamentary responsibility, democratic representation, parliamentary and democratic accountability, parliamentary privilege and the role of legislatures to reconcile the independence of the courts with the executive’s fiscal and policy responsibilities.

Such interference by the courts in the processes and determinations of a legislature, in light of the recognized constitutional constraints set out in the Bill of Rights, 1689 and the jurisprudence of the Supreme Court, requires both careful analysis and explanation.  Canadians and their elected parliamentary representatives should know why the situation of judicial salaries requires such a departure from the constitutional underpinnings of Westminster democracy.  When constitutional principles intersect, constitutional analysis is required.  Treating legislatures as administrative bodies belittles both the central role of legislatures within the constitution and the constitution itself.

It may be that the courts will find constitutional fault with the decisions of the legislative assembly, but how and why they do so matters.

Parliamentary Privilege: A Question of Jurisdiction

The Ontario Court of Appeal has confirmed that Senator Mike Duffy cannot bring an action against the Senate for its decisions to reject certain expense claims and suspend him from sitting and receiving his sessional allowances , even if he could prove that the decision was politically motivated or the processes were unfair (Duffy v The Senate of Canada , 2020 ONCA 536).  The Court of Appeal upheld the decision of the Superior Court (see Blog December 21, 2018) that the various decisions of the Senate were protected by the parliamentary privileges relating to the Senate’s power to discipline senators, the power to control its own proceedings and not have those proceedings questioned in  the courts, the Senate’s control over spending and allowances of senators, and the freedom of speech.  Although the decision is an important confirmation of these privileges, what is more significant are the court’s findings on the effect of parliamentary privileges as a matter of constitutional jurisdiction.

 

Until this case, the relationship between parliamentary privilege and jurisdiction had not been addressed head on by a Canadian court.  Previous cases had arisen in two contexts. One was attempts to judicially review decisions of legislative bodies. In those cases, courts found that they were precluded by Article 9 of the Bill of Rights, 1689, from directly questioning or impeaching parliamentary proceedings, among other factors. The second type of case concerned defenses to lawsuits based on freedom of speech or, as a matter of evidence, attempts to preclude the use of Hansard to impeach a witness or ground a claim.   The Duffy case was framed differently.  This was a civil case, in damages, brought against the Senate and others, based on the actions of the Senate.  Although somewhat similar in substance to a judicial review application, the framing of the case required the courts to consider their jurisdiction directly.    The argument presented by Senator Duffy was that, if the Senate acted “illegally” or by violating his Charter rights, the courts had separate or concurrent jurisdiction to grant damages.  But for the privileges, the court would otherwise be able to hear the case as one of “wrongful discipline” or misfeasance of office, depriving the senator of his pay, and possibly for related damages based on Charter violations.  The Senate, for its part, argued that the court did not have jurisdiction to hear the case.

 

The court had two options available to it, both of which would have achieved the same result.   The court could have dismissed the action on the basis that there was no way for the case to be proven since all the evidence supporting the allegations was protected by privilege.  By striking out all the allegations that would involve the court in questioning the proceedings, there would be no remaining factual allegations capable of proof.   The second option, taken by the court, was to deny that the courts had jurisdiction, and to further indicate that jurisdiction to determine all issues related to privileges rested with the Senate.  By looking at the question as one of jurisdiction, the court saw privilege as more than a question of evidence.

 

The Ontario Court of Appeal unequivocally stated: “Parliamentary privilege is a rule of curial jurisdiction.” (para 35)   In matters covered by privilege, the Senate has the exclusive jurisdiction to decide the entire question before it and to grant whatever remedy it deems appropriate.  The court further noted that this does not “leave Senator Duffy without remedies.  Instead, he must pursue his remedies before the Senate, which has its own power of judicature according to its own rules.” (para 91)  Although articulated for the first time in Canada, the court relies on the ancient concept of a separate judicature in areas of privilege rooted in the expression and concept of the High Court of Parliament which “has a certain power of judicature—as do the two Houses in their separate capacities.  In exercising this jurisdiction, the Houses apply the law and custom of Parliament (lex et consurtuo parliamenti).” (ONCA quoting the UK Supreme Court in R v Chaytor  [2010 UKSC 52].  In the UK, this distinct jurisdiction is termed “exclusive cognizance”.

 

From a practical and practice perspective, the court has determined that not only do courts not have jurisdiction to hear cases that fall within the parameters of parliamentary privilege, but that each House does.  The concept of exclusive cognizance articulated in the UK Supreme Court has now clearly been accepted and adopted in Canada.  Parliamentary privilege not only protects the independence of Parliament, but also provides the scope and extent of its exclusive jurisdiction to determine matters that fall within that jurisdiction.  Parliamentary privilege is a legal and constitutional jurisdictional boundary between the courts and Parliament.  Only Parliament can hear and determine matters internal to Parliament and its members.  As a rule of constitutional jurisdiction based on categories of privilege, all types of proceedings in the courts, not only judicial review, are precluded.

 

The jurisdiction of Parliament, however, is specific and limited.  Parliament’s jurisdiction only runs to matters that fall within the scope of parliamentary privilege.  In this way the scope of parliamentary privilege defines the boundary of Parliament’s jurisdiction.  A matter that would normally be determined by the court, even if involves parliamentary members or officials, will continue to be a matter for the courts unless it is shown that the matter falls within a privileged category that could require a decision of Parliament on the privilege (although privilege may still affect some evidentiary aspects of the case).  One example is Chaytor in the UK, where a member of the House of Commons, alleged to have defrauded the House (an “ordinary crime”), was tried in the criminal courts.  In this case, Senator Duffy was tried and acquitted of the criminal charges that formed part of the basis for his suspension (R v Duffy, 2016 ONCJ 220).  Although related to parliamentary activity, the alleged crimes were not an aspect of privilege, nor was the determination of whether a crime was committed a matter which involved the exercise of a parliamentary privilege.  But the suspension of a member, and the determination of allowances and whether they are used properly, are.  An analogy can be drawn with ordinary employment.  An employee alleged to have stolen from her employer can be tried and acquitted in the criminal courts and still lose her job. She can bring a civil suit that will be tried and determined in a different court, on a different standard.  In the parliamentary context, the complimentary determining body is not a civil court applying civil law. It is a parliamentary body exercising its parliamentary privileges and applying the law of parliament.

 

It has long been established that Parliament has the jurisdiction to determine the application of laws within its walls and how those laws apply to its proceedings (Bradlaugh v Gossett (1884) 12 QBD 271).   What continued to remain somewhat uncertain in Canada was whether this rule applied to the Charter of Rights and Freedoms.   The decision of the Court of Appeal, based on jurisdiction, also settles this issue.  While earlier cases such as New Brunswick Broadcasting  [1993] 1 SCR 391 had decided that the Charter did not prevail over parliamentary privilege since both were constitutional in nature, the Court of Appeal decision in Duffy provides guidance on where any balancing between Charter rights and privilege is to take place—in Parliament.  This is not inconsistent with jurisprudence that holds that the Charter does not grant, or change, jurisdiction.  For a court or any body to apply the Charter, it must otherwise have jurisdiction over the subject matter, the person (or body) against whom the case is brought and the remedy.  Only once jurisdiction is established can the court, or decision maker, determine whether and how the Charter applies.  This same reasoning is now clearly applicable in the parliamentary context.  In case there is any remaining doubt, the court indicates that it is not up to the courts to reconcile privilege and the Charter, rather “where parliamentary privilege applies, the legislative body holding the privilege has the exclusive competence to adjudicate an alleged breach of the Charter.” (para 110)  It is now up to Parliament to determine how to consider the potential application of the Charter in the exercise of its privileges.

 

By framing the decision in jurisdictional terms, the Court of Appeal reminds parliamentarians that in matters of privilege may be responsible for making juridical determinations that affect the rights and/or livelihood of individuals.  With jurisdiction comes responsibility. Parliamentary institutions are by their nature partisan and political, however, there are times when they are carrying out functions that require them to set aside (or at least temper) partisanship.  This is particularly the case when individual rights are at stake. Since the courts cannot be involved, and do not provide a backstop, parliamentarians must be vigilant in their proceedings to ensure fairness of both process and outcome.  A failure to do so will not only be damaging to the individuals concerned but to the parliamentary institutions themselves.

 

Trump v Congress: Holding Leaders to Account in Congress compared to Parliamentary Oversight

The US Supreme Court decision July 9 in Trump v. Mazars USA, LLP et al (2020) 591 US ___ once again demonstrates the difference between the powers of the US Congress and the Canadian Parliament and Legislatures.  At issue was the scope of the subpoena powers of the US House of Representatives.  Various Committees of the House had subpoenaed the personal tax records of the President.  The President argued that the records were personal and therefore were beyond the scope of the subpoena power of the Committees.  On the other side, the House argued that it had broad subpoena powers that included the records in question.  The Court rejected both arguments in their extreme forms. Instead the Court set out a relatively high test for the Committees, quashing the subpoenas as they were issued.  In doing so they provided an analysis that clearly demonstrates the difference between the powers and foundations of the US Congress and Westminster Parliaments.

The Court indicated that there was no inherent stated constitutional power of Congress to issue subpoenas.  The subpoena power is a derivative one and can only be used in aid of its legislating (or impeachment) role.  In short, a subpoena must be focused on, and have the purpose of, assisting Congress in in some form of legislative initiative.  Any “oversight” role is tied to an assessment of government operations that could lead to legislative amendments.  It was difficult for the Court to find that the President’s personal tax records, like any other individual’s tax records, would be able to assist in the legislating function. However, the Court did leave the door open for such a subpoena if Congress could demonstrate that (Syllabus page 4, decision pages 19-20):

  1. There are no other sources of information that could reasonably assist Congress in its inquiry related to legislative change;
  2. The request is no broader than reasonably necessary to support Congress’ legislative objective;
  3. Congress can provide evidence to show that a subpoena advances a valid legislative purpose. The more detailed and substantial the better, particularly when the proposed legislation affects another branch of government and the office of President; and,
  4. The subpoena is not being used for institutional advantage between the branches such that a subpoena puts an undue burden on the President.

Presumably, if Congress can meet these conditions, they can re-issue the subpoenas.

The decision of the Court is firmly rooted in the American Constitution’s strict separation of powers in which each branch of the State is relatively equal to the others; the rights of individuals (here the President’s records were personal) are paramount to the power of all institutions; there is are few unwritten constitutional principles; and that Congress is purely a legislative body, with a few enumerated additional powers such as impeachment.  Finally, the Constitution is seen as a clean break from the British system of government and its Parliament.  Therefore, there are few, if any, inherent powers in any branch of the state.

The Canadian Parliament and Legislatures are founded on a completely different footing.  Whereas the US constitution is seen as a clean break from Britain, the preamble to the Canadian Constitution Act  (1867) provides that the Canadian constitution is to be similar in principle to that of the United Kingdom.  Further, section 18 provides that the two Houses of Parliament have the same privileges, immunities and powers enjoyed by the UK House of Commons.   For provincial Legislative Assemblies, the privileges, immunities, and powers flow from the Preamble (see Vaid decision in the Supreme Court of Canada 2005 SCC 30).

As a result, Parliament is sovereign and “supreme” in the sense that it has the complete upper hand in any potential “political” dispute with the government.  One of the main constitutional functions of Parliament is as a deliberative assembly that includes a primary role of holding the government to account.  The government is not co-equal with Parliament.  Continued parliamentary confidence and the resulting accountability of the government to Parliament is the focus of the constitution as it relates to the relationship between the legislative and executive branches of the State.

As for the power to summons, that power is inherent in both Houses.  Parliament in the UK, and therefore in Canada, based on the constitutional provisions noted above, was considered the “High Court of Parliament” with all the powers afforded to courts.  Although many of the functions of adjudication have passed to the courts, the inherent powers of Parliament, including the summonsing power, remains intact.

Even if the scope of the power to summons is now limited to Parliament’s functions, those functions are very broad.  There is still an underlying constitutional principle of parliamentary sovereignty and supremacy in Canada, albeit limited by the Constitution. However, the Constitution does not grant power to Parliament in the same way as in the United States.  In Canada, the constitutional assumption is that the powers of Parliament are virtually limitless, except as limited by the Constitution.  In short, unless the Constitution limits its powers, Parliament can exercise them subject only to political, not judicial, consequences.

To demonstrate the difference between Canada and the United States, one need only consider the broad scope of the parliamentary inquiry into the sponsorship program of the federal government in the early 2000’s, where numerous individuals were called to testify about their personal involvement and required to provide information.  They could not claim any constitutional right to not attend or answer questions.  Their appearances and testimony was protected by parliamentary privilege that precluded any information being used in any subsequent court or inquiry proceedings (see Gagliano v Canada (Attorney General) 2005 FC 576).  The privilege is based on the Bill of Rights, 1689, which in turn was based on the notion that Parliament was the highest court in the land and that no lower court could question anything that took there.

A second example was the 2008 inquiry into the Airbus purchases to be made in Canada, where it was alleged (although not proven) that the former Prime Minister, who was acting as a private citizen consultant on the purchases,  had taken a kick-back for certain contracts.  A parliamentary committee investigated.  During the inquiry the House of Commons used two powers of summons that were of note.  First, a major witness required by the Committee was in jail awaiting deportation for various fraud and bribery charges in Europe relating to the same subject.  In order for him to testify it was necessary for the House of Commons to authorize the Speaker to issue a warrant to the prison authorities to release the witness into the custody of the House of Commons to allow him to testify before the Committee.  The Attorney General of the province and the goaler accepted the warrant to temporarily release the witness into the custody of the House of Commons, even where the witness had been incarcerated by the equivalent of a High Court Justice.  They accepted the higher authority of Parliament without even seeking the permission of the court that issued the incarceration order.

The second was a threat to summons the tax records of the former Prime Minister. In the end this power was not tested.  As a result of the testimony of various witnesses the former Prime Minister was called as a witness to discuss the various transactions and the amounts of money that he received.  Ultimately the former Prime Minister entered into an agreement with the Canada Revenue Agency to ensure that all appropriate taxes were paid on the money received, amounts that were disclosed during the Committee proceedings.

Throughout the various proceedings the lawyers for the former Prime Minister and others had attempted to argue that their client’s rights were being infringed. However, in the end, all of the questions posed were answered under the protection of privilege.

Had the former Prime Minister been in office at the time of the Committee hearings there is every chance that he would have been compelled to produce his tax returns, and any failure to do so could have been seen as a contempt, with the possible consequence of his defeat in a vote of confidence and the collapse of his government.

This experience, when compared to the recent US Supreme Court decision clearly demonstrates the differences between the US system of separation of powers and the Westminster system of Parliament constituting the “grand inquest of the nation” with a focus on holding the government to account, in addition to legislating.  To hold a government to account and to inquire into those matters that need to be publicly examined requires the broader power to summons, and when necessary compel testimony, regardless of the position held by the witness.

Although some may see the Westminster system as antiquated and “unstable”, the requirement for continued confidence and accountability, and the ability to summons and demand answers, does provide for the ability for the people’s representatives to review in real time all concerns of public importance, politically motivated or not.  No-one in the country can avoid such necessary scrutiny.  In the end Parliament can have the government dismissed, and the government’s actions judged immediately thereafter in an election.

The decision of the US Supreme Court puts in stark contrast the distinction between a parliamentary democracy and a congressional one.  From where I sit, it is clear in my mind that a system that allows for “political” disputes are best resolved in the “political” institution whose judgements can result in its own dissolution and an immediate election.  This, in the end, is the check on the exercise of any powers used, and it is the correct one.

If nothing else, this contrast should be at the front of mind of those who may not be happy with the system that Canada has inherited from the United Kingdom and look to certain aspects of the American constitutional experience for answers: fully written constitutions, fixed election dates and proportional representation (not American, but almost necessarily tied to fixed date elections).

What we have may be far from perfect but, for the sake of democracy and transparency, political accountability of government should rest with the elected and not with the courts.

Protecting Parliamentary Democracy in “Plague” Times: Accountability and Democratic Institutions During the Pandemic Seminar

For those interested, I am presenting my recent paper published in the Commonwealth Law Bulletin as a lunch time teleconference seminar for the Canadian Bar Association (Public Sector Lawyers section) on Thursday May 28 at 11:30 am EST.  For information on registration see:

Protecting Parliamentary Democracy in “Plague” Times: Accountability and Democratic Institutions During the Pandemic