Proceedings of the Standing Committee on
Rules, Procedures and the Rights of Parliament
Issue 4 - Evidence - May 5, 2015
OTTAWA, Tuesday, May 5, 2015
The Standing Committee on Rules, Procedures and the Rights of Parliament met this day at 9:32 a.m. for the consideration of a report of the Subcommittee on Parliamentary Privilege.
Senator Vernon White (Chair) in the chair.
[English]
The Chair: Good morning. Welcome everybody to the Standing Committee on Rules, Procedures and the Rights of Parliament.
I thank everyone for being here today. We'll probably have a few stragglers as we start here, but as everyone knows, we're dealing this week with the document provided, A Matter of Privilege: A Discussion Paper on Canadian Parliamentary Privilege in the 21st Century. Steering committee met the week before last and discussed how we would proceed. The suggestion and agreement among steering was that we would look at a presentation by Charles Robert and Dara Lithwick in relation to the work that has been done and try to get everybody up to speed over the next 30 minutes or so. People can ask questions as we wrap it up, and then we'll try to have a discussion on the way forward about how we're going to manage parliamentary privilege.
Before we start, I will ask if there are any questions. I look to my friend, Senator Joyal, who may have a question or concern before we start, but if not we'll probably roll. David Smith is not here.
Senator Joyal: No, I have absolutely no questions. I am supportive of the approach you have been proposing, Mr. Chair.
The Chair: I will turn this over to Charles.
Charles Robert, Clerk of the Committee: Honourable senators, this is going to be a bit of an explanation and a history lesson to give you some background and understanding as to the reasons why the subcommittee took the approach it did, following their work over the spring and summer of last year, in preparing this report.
We all know pretty well the purpose of parliamentary privilege. It's to protect and support the members and Parliament itself in the work it does for the benefit of the nation.
The challenge that the subcommittee realized is before it is to bring parliamentary privilege up to date for Canada, to bring it up to date for the 21st century in an era where the Charter exists.
We know that the Charter has had an impact because, in relative terms, there has been an explosion of court challenges to parliamentary privilege. This was not really known in Canadian law very much before the Charter. A few cases popped up from time to time. Three cases occurred in late the 19th and early 20th centuries, but that was pretty well it.
Why are court cases coming up? Because people believe in the Charter and believe in the rights it guarantees. It's also part of a growing culture of a rights-based legal system, and also in a time when Parliament itself is trying to demonstrate that it's more accountable and transparent. These factors all combine to make it an appropriate time for us to review what parliamentary privilege should be in this time and era.
This is a sharp contrast from what existed in the past. If you look historically at what parliamentary privilege was, it developed and became quite clear through the course of the 17th century as a way by which Parliament could assert its role in government by challenging the Crown, which sometimes interfered with its work and used courts, because the judges were appointed by the Crown and were dismissed at the will of the Crown, to reinforce its will on Parliament.
By the end of the civil war, Parliament was successful with the restoration and negotiated with the Crown the terms and conditions of what now was becoming a constitutional monarchy. They leveraged their position to declare their supremacy, which is why one of the phrases we hear, when we pledge allegiance to the Crown and her successors, is "according to law.'' "According to law'' is a new catch phrase that developed after the civil war that said Parliament will determine who will wear the Crown, because the law is passed by us.
It was an assertion of Parliament's control.
Privilege was instituted as a way of saying to the Crown, "We have protection; you recognize it; you can't touch us when we're fulfilling our duties properly.''
They included the courts as a way that could not question privilege because they recognized in that era that the court was still controlled by the Crown. It was only a few years later — this is one of the sort of quirks of history — that the judiciary became more independent. I think it was 1703 or 1708, with the Act of Settlement. Parliament in Britain has always remained suspicious of the courts; they still are. It's really quite amazing.
Privilege had two aspects. The one we understand, and which still applies today, is that it is meant to protect and support the work of Parliament. It's also clear that in England, a hierarchical society, it was also intended to grant members status. You can see that and how it was applied in the Stockdale v. Hansard decision when the court listed what had been recognized as breaches of privilege from the time of the settlement to 1760 or so, in England: Poaching, taking a member's horse, trespass, killing rabbits, fishing in ponds on a member's property were all recognized to be breaches of privilege. I think it's fair to say and pretty obvious that this had nothing to do with the members' work, but it did have something to do with the members' status, and they were trying to imitate the kind of Crown immunity that existed.
There was that dimension of parliamentary privilege that existed in England through the 18th century. It started to fall apart when England became a more democratic society following the Reform Act of 1832, which coincided also with the Stockdale v. Hansard decision, a series of decisions that took place in 1839. In that era, the courts invented, developed, used a tool that has become critical for us ever since, and that is the court's assertion that it can use necessity to determine the scope of any unsubstantiated claim of privilege.
The House of Commons claimed that documents that were printed under its authority for general distribution were protected by privilege. That was what the Stockdale v. Hansard case was all about. And the court said, "Really? Since when? We understand that the documents you produce for internal use should be protected, but why should general documents for distribution to everybody be exempt from the laws of defamation?'' The courts said, "You have to prove: Is this really necessary for your work? We don't think so.''
Parliament retaliated — I'll use that language to be more blunt — against the decision of the court by passing the Parliamentary Papers Act. It asserted its right that it can create new privileges if it disagrees with the courts. And it can do that.
Now, that was the situation in England by the early 19th century. What was the situation between parliamentary privilege and the colonies? Well, in 1867, we were given section 18 as a head of power by which we could claim all of the privileges of the House of Commons of the United Kingdom. They had already started doing this with the colonies in Australia, so Canada was not the first —
Senator Joyal: We were not a colony in 1867; we were a dominion. I'm sorry to interrupt, but to be called a colony —
Mr. Robert: The law was passed in March and didn't come into play until July 1.
In any case, that grant was implemented through the Senate and House of Commons Act, which is now the Parliament of Canada Act, in section 4, I think.
What's interesting is that the provincial legislatures were deliberately not given the protection of privilege, and that became one of the interesting early battles between Parliament and the provincial legislatures in the 19th century. The first attempts by Quebec, Ontario, I think Manitoba and also British Columbia to claim privilege through statute were disallowed. Ottawa had the power to disallow provincial acts, and they chose to exercise that power. It all touched on privilege, because they believed that the provincial legislatures were not much better than municipalities, and why should they have privilege?
They took the grant of privilege by Westminster in section 18 as conferring special importance and recognition on the federal Parliament, and they did not want the provincial parliaments to, in some sense, "intrude'' on that status.
In the end, the provinces were successful through various means. One of them was basically lack of attention on the part of Ottawa, but the other one was a Quebec court case, Dansereau, 1875, that said that since the provinces can amend the Constitution, they can amend their constitutions to give them privilege. And that's a perfectly legitimate use of that power. So that's how they got around it, and the provinces have all instituted laws that give them status for their privileges. They would clearly have had inherent power, but they also claim the more contested power: the power to punish for contempt. That was the one that was always in question.
So, as I said, here we are, it's 1867, everything is clear. Parliament has never really been preoccupied by parliamentary privilege. We only become more preoccupied by it, as I said, really, with the Charter.
The reason is that we don't have a history that would help us to understand why we should be concerned about it. When parliamentary privilege was being contested between the Crown and Parliament in England, it was because it was a vehicle to demonstrate the power that Parliament could legitimately exercise. If they didn't have privilege, then it was an option for the Crown to intimidate Parliament by arresting its member for treason, for disrespectful comments — whatever you want.
We never had that issue in Canada. The relationships between the Crown, the courts and Parliament were settled. So privilege was never a vehicle to test the waters to claim Parliament's status.
That's one of the reasons why this is the very first report that is a comprehensive review of privilege that has ever been written by any parliamentary body in Canada; no other body in Canada has ever done that before. There were attempts in the 1970s in the House of Commons, and there was a proposal to do it in 2004 by Ottawa, but it never went very far. This is the first document of that sort to do so.
As I said, I think one of the reasons is because the Charter is a factor. It makes people much more aware of their rights. And now this is where we're having the contest. It's not between the Crown, the courts and Parliament; it's really about Parliament's relationship with the people.
That's why I think the subcommittee members felt there was a real benefit in trying to modernize parliamentary privilege to recognize those realities.
I think I have chatted enough. Perhaps it would be better for me to give way to Dara and let her explain further some of the aspects that guided the development of the report and the way we looked at necessity to help us evaluate the privileges that we normally claim.
Dara Lithwick, Analyst, Library of Parliament: Thank you, Charles, and thank you, Mr. Chair.
The subcommittee was driven in its analysis by the understanding discussed at our last meeting and also raised by Charles now that Parliament, originally a semi-private institution, really is now the centre of public life. The senators in the subcommittee really felt that Parliament is expected to be transparent, accessible and accountable to the public, and there is the question of how parliamentarians should exercise their privileges in that regard.
Also mentioned in the last meeting and discussed by Charles is the role of the Charter in terms of the constitutional relationship that privilege plays and how that plays in with Parliament's relationship to the public. That has become something that is more front and centre.
We made some allusions to Supreme Court cases since the Charter that have dealt with privileges. There have been only three occasions that the Supreme Court of Canada has explored the interplay between the Charter and parliamentary privilege, and only one that dealt with the House of Commons, that being Canada (House of Commons) v. Vaid — the Vaid decision — which is celebrating its tenth anniversary this month; the decision came out 10 years ago.
The other two decisions were New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly) and Harvey v. New Brunswick (Attorney General).
A theme that came up in each case, and one that was restated in each case, was that — for example, in New Brunswick Broadcasting Co., it was held that the press freedom guaranteed by subsection 2(b) of the Charter did not prevail over parliamentary privilege, which was held to be as much a part of our fundamental constitutional arrangements as the Charter itself, and that one part of the Constitution cannot abrogate another part of the Constitution.
The courts will not make that decision. With respect to parliamentary privilege, the courts will help determine the scope or the parameters of privilege, and that's what they did in the Vaid decision. In the Vaid decision, there was a claim made by the Speaker of the House of Commons that control over certain employment choices fell under parliamentary privilege and that, say, the Canadian Human Rights Act or other legislation would not apply in that regard. The courts said there's no real reason for that; that privilege has not been set out. Vaid set out a test for determining whether privilege exists, and that test was based on whether the claim of privilege is clearly established. If it's not clearly established, is it necessary for parliamentary function and so on?
Again, Charles mentioned necessity, even going back a little bit to — I think he mentioned it even in the context of Stockdale v. Hansard — but necessity in the sense that it has become the grounding that the courts have used.
However, again, the courts only work around the edges of privilege — what the parameters of privilege are. Once it has been determined that it's necessary, it's up to parliamentarians to determine how they want to exercise it, and the courts have no role to play there.
This is where the subcommittee has tried to come in to try to fill the void and provide an analytical framework and guidance in terms of how parliamentarians should exercise their privileges in a way that is consistent with contemporary norms of accountability and transparency and Parliament's relationship to the public as, for example, expressed in the Charter.
In that way, the subcommittee has been attempting to work out or provide some form of framework for how the exercise of Parliament's privileges can be done in a way that is consistent with the Charter and so enabling these different constitutional elements to coexist in how they're exercised. Again, I want to quote a little bit from the Vaid decision itself in this regard, and this is what the subcommittee responded to.
For example, at paragraph 30 of the Vaid decision, the Supreme Court indicated:
In matters of privilege, it would lie within the exclusive competence of the legislative assembly itself to consider compliance with human rights and civil liberties.
That is in many senses some of the charge that motivated the subcommittee in its work. So building on the framework established in Vaid, the subcommittee developed a framework for evaluating elements of parliamentary privilege and adapting them to, for lack of a better term, contemporary norms.
The subcommittee, in its discussion paper, agreed that the necessity test articulated in the Supreme Court's Vaid decision would be a useful starting point to interpret privilege for the 21st century because looking at privilege through the lens of ongoing necessity serves to fix it in a contemporary setting. This approach to test privilege would be adapted to meet two goals: to sustain the protection of Parliament in the performance of its core functions, and at the same time to limit the infringement of any constitutional rights, looking at the Constitution as a whole.
The subcommittee proposed the test that we discussed a bit at the last meeting, which Senator Joyal discussed at the last meeting. First, is the privilege necessary to protect parliamentarians in the discharge of their legislative and deliberative functions and Parliament's work in holding government to account for the conduct of the country's business? Second, does the contemporary context provide reasonable limits on the scope and exercise of the privilege? Third, how can this privilege be exercised to respect the values and principles expressed in, for example, the Canadian Charter of Rights and Freedoms? Fourth, how can the scope and exercise of this privilege be aligned with the standards of transparency and accountability essential to Parliament's public reputation?
By looking at both Parliament's collective and individual privileges through these frames, it enabled the subcommittee to say okay, maybe we can tailor this or we need that or this is no longer necessary.
For example, witness testimony is protected by parliamentary privilege's freedom of speech, and anything said in a parliamentary proceeding is protected by the privilege of freedom of speech. If defamatory statements are made, really nasty statements made, while the courts do not have recourse, is there recourse that parliamentarians should take themselves in a manner that follows norms of procedural fairness to be accountable to a higher standard or the standard that the Senate has indicated that it wants to hold itself, for example as expressed in the rules in the Parliament of Canada Act, in the Ethics and Conflict of Interest Code for Senators and so on?
I think I have now spoken quite enough, so this was some of the analytic framework undertaken by the subcommittee, and that is all for now.
Senator Cools: I was wondering how we are proceeding. Is this a free-for-all discussion? Do you have a structure in mind? Is this an open discussion?
The Chair: It is now. What we had planned was to have Charles and Dara present what the subcommittee worked on and the why. If people had questions then we would take them right after, and we have just completed that portion.
Senator Cools: I don't know whom to put my question to, chair, because maybe a member of the subcommittee might be in a position to answer the questions.
I thank the staff, as always, for their hard work. You cited maybe five guiding posts that the subcommittee chose to guide themselves by and to anchor themselves to.
You also said that Parliament was a semi-private institution. I don't think you can say that about Parliament in 1867, when the BNA Act was constituted. Perhaps one could have said that 150 years before, but not in 1867.
If by modernization, this is what you mean, then you may want to examine some of your premises. We may need to examine some of these premises. It is very clear in the lead up to the decisions at Confederation that Sir John A. Macdonald, the lead man for Ontario, and of course George Brown were pretty clear where they were going. They were extremely aware that they were moving into a federal situation, and at that time federation was extremely new, other than the U.S.
Much concern was given and much attention paid to the issue of privileges. There are not too many, those Fathers of Confederation, whom you could describe as acting in a semi-private capacity. But the important matter is that when we look at privileges, we must recall that there are two large pieces of legislation, which are critical to the history of privileges in Britain.
The first obviously is the 1689 Bill of Rights, which was a piece of legislation aimed and directed as instructions to the courts. Then there was the Parliamentary Privilege Act 1770. This act was instructions to the members.
There is a tendency in human beings to abuse things, and there were members abusing privileges. If we put these into the events of 1867, and then in 1982, there was always much concern that privileges were critical. These were maintained in 1982. I haven't looked at this for a few years, but I think it's the 1982 Constitution Act, section 24 of the Charter, which is quite clear.
Headed "Enforcement of guaranteed rights and freedoms,'' section 24 says:
Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
Section 24 upholds Parliament as a court. Some keep saying the term "Parliament.'' I'm not too sure if they mean all three parts of Parliament, the houses of Parliament. It's very confusing when we talk about privilege because privileges are held by each house individually, separately and independently. The word "privileges'' is used because they are the descendants of prerogatives. Once Their Majesties granted prerogatives to, for example, the judges, and in our case the senators, the term "prerogative'' gives way to the term "privileges.''
This section 24 highly intended that anybody could apply to Parliament for a remedy. So, far from being out of tune with the Charter, the Charter explicitly acknowledges that people have the alternative to go into the courts — most of the superior courts of Her Majesty — or can appeal to the houses, as the high court of Parliament. There are many remedies available to the aggrieved or the wronged.
Colleagues, we have not acted on many of these fronts for some time; it does not mean they are non-existent or that they have not been considered. The real problems, as I keep returning to, are not lack of transparency or accountability. If, on the floor, people smear others — and I have heard ministers do so in the other place, the worst being during the Firearms Act debate. One individual who opposed the minister was smeared in a shameless way on the floor of the Commons. That is a failing of the house, and even a failure of the Speaker, because no Speaker — no one sitting in that chair — should allow what I would call inhumane, impolite, crude, rude behaviour— we can use all these other words — that are forbidden in public debate.
Privileges is a host of issues.
Colleagues, you mentioned the case Stockdale v. Hansard. I remember the Attorney General at the time was John Campbell, later Lord Campbell. In those days, the attorneys general, up until about 40 years ago, went into the courts to argue the cases themselves. They didn't send their lawyers; they themselves were the lawyers.
In that case, Stockdale v. Hansard, John Campbell says that they arrested the prosecutors and they arrested the lawyers — they arrested many. But he said that it was with great forbearance that they did not arrest the judge, who was Lord Denman. Lord Denman, the judge, was a powerful lawyer in his day and had acted as solicitor general to the queens. He was no slouch. This case was a real contest of power between the House of Commons and the courts.
Colleagues, at the end of the day, privileges are all about our power. We have to make sure that when we are changing these things, we're not reducing our power or ceding it to others.
Attorney General John Campbell said that it was with great forbearance that he was able to persuade the house not to arrest the judge, Lord Denman. He makes the point that had he moved a motion to arrest the judge, it would have carried unanimously.
The facts just give you a flavour of the mood at the time. Stockdale v. Hansard, as you know, was a very big case. It was in the 1830s. It was a huge event.
Colleagues, I really think that, yes, we have a foundation here, but it is a background and a beginning for us, as senators, to engage in a very instructive, positive and informative debate.
I think, as at all times, that we must not begin on a premise that our privileges are out of date. The truth of the matter is — and I believe that we have been operating in an atmosphere of failures in many ways — senators have been afflicted by these conditions. New senators come here and, years later, they are still ill-equipped.
Quite frankly, I think we should stay on our course, keep it very balanced and keep it mindful that the Fathers of Confederation were very capable fellows. They put lots of powers in the 1867 BNA Act to avoid and to defeat future constitutional mischief-makers. So we must not become pawns of future mischief-makers. That's all I say.
The Chair: Thank you, senator. I agree, and I don't think anyone — I hope no one — has a preconceived idea of where we're going, other than that, for us, this is very much a foundational building piece.
Charles was going to respond to the first comment.
Mr. Robert: The point you made, senator, is very interesting and quite accurate. If there was a mistake in understanding, I apologize. When the reference was made to Parliament as a semi-private institution, it was not to the Canadian Parliament; it was to the United Kingdom Parliament of the 17th and 18th centuries.
At that time, you had the House of Lords; you had members of the House of Commons, most of which were attached to the aristocracy in one manner; you had an electorate that was basically 5 per cent of the population; and you had rotten boroughs, where people with power and influence could determine who could be elected, notionally, to the House of Commons. That didn't change substantially until 1832, when the electoral laws that dated back to 1455 were finally changed, and the system of rotten boroughs was abolished and the electoral population grew to a whopping 15 per cent.
It was not really until 1867-68 and then finally in 1884 that the kingdom's electorate grew to something approaching a modern standard. So a body that was constituted on such a narrow base did, in fact, behave as a semi-private institution. The idea of representation was always there, but the idea of a democratic relationship was less evident until the changes came about in the 19th century.
The Chair: Thank you very much.
Senator Cools: We can debate this for quite some time, but the real agent of change was the civil war in Britain. That and their 1869 Bill of Rights — and I don't want to shock my Conservative friends — but the Bill of Rights was a major document to advance the powers of the Commons. There was much uncertainty about its legality, because the Parliament wasn't summoned by a king. So the first parts of the bill were the assemblies' "declarations of their ancient rights.'' Then the other parts are the law.
To grasp the importance of privileges we have to look at the mood of Britain in those days. From 1689 on, and with due respect to all my Conservative friends, the Whigs were quite dominant. Remember, England never had a history of absolute monarchy. When King William of Normandy conquered, the lords had to make him understand that you couldn't raise taxes in Britain without some input from others.
From 1689, the mood for change was one of the reasons that British liberalism prospered. Lloyd George killed off that party for good later, but it was that liberalism in those years that was well known in Canada in 1759 at the Plains of Abraham. In the local assemblies, when they were granted, members were very aware and wanted nothing less than what they had in England — no fewer rights. These were huge fights in Canada.
But at the end of the day, Canada's Sir John A. Macdonald emerged early in the Confederation exchanges as the chief, as the prince — the first man. We should appreciate this and never lose sight of it.
In those days, the legislators, if they wanted to hurt a member, would get him sued in an action so he would be subpoenaed, drawn out of the house, unable to vote. They did all manner of things.
Colleagues, we have to understand: Privileges are power. I have sat through many meetings here, and some say we should not use the word "privileges'' because the public will think that we are different from them. I disagree.
We have a big task before us. I'm grateful that Senator Joyal has brought this on, with our dear departed Senator Nolin. It's a huge undertaking, and we must get it right.
Senator Jaffer: I want to thank you both for your explanation, which was very useful. Having read the report, I found this explanation really helped me to understand.
I have a concern about where we're going, and that will be clear later on, if either of you can address the issue. You've set out in the report, on page 37, ". . . to elaborate a framework for the exercise of parliamentary privilege.'' In the opinion of the subcommittee, it is the issue of accountability, responsibility and transparency.
I have many issues because these may have been interpreted in the court, but not with regard to privilege. We are going into an absolutely different area. I'm not comfortable. I understand we're expanding it more from necessity, but this is quite wide. I know, chair, that we will have many discussions about these words later, but if we could have a 101 on why these words were used, that would help me a lot.
The Chair: If I may, I hate to impose on Senator Joyal, but I did look to him and, as someone said, P.C. I'm sorry Senator Furey is not here today as well.
Senator Jaffer: We can wait for my answer.
Senator Joyal: I think that what is important to remember, essentially, is that the word "privileges'' is confusing and misleading. Because, as you stated and as Senator Cools has been mentioning, when you say to somebody that he or she has a privilege, it puts the person in a special status with more than others. It's a distinction that in our democratic, contemporary context is linked to a negative perception. We are all equal under the law. We are all, each one of us, whatever our background, origin, fortune, education, or whatever might be the socially distinctive character you might think, equal in front of the law. This fundamental principle is rooted in democracy.
That's why the vote of somebody, as I say, who is rich is equal to the vote of somebody who is totally poor. This is the concept of democracy, linked or rooted in the dignity of human beings. So it is a fundamental point.
When we discuss or mention parliamentary privileges, it is as if, because you are in Parliament, you are elevated to a level where you're no longer equal to the other citizens. It is contradictory, because we're here to serve the citizens. In other words, to serve Canadian citizens we would need to be elevated to a certain level where we are inaccessible or we are better; we have more rights.
This perception, in my opinion, is totally contrary to the objective of those so-called privileges. In fact, those privileges are essentially linked to our capacity to exercise the function of parliamentarians. Senator Cools is right in stating that those privileges don't belong to Parliament. Parliament is the Queen, with the Senate and the House of Commons. That's the concept of Parliament as defined in the Constitution.
Those privileges are not to Parliament. Those privileges are linked to parliamentarians, to members of Parliament and senators, and to the institution of the Senate and the institution of the House of Commons. So when I give an example, I have the freedom of speech. I need to have the freedom of speech. This is the most fundamental right. I should, in Parliament, be able to say anything without constraint. So I cannot be sued in court for what I'm going to be saying on the floor of the Senate, and the same for a member of Parliament. Because it's part of public debate, and public debate, freedom of expression, is essential for the exercise of the role of a parliamentarian.
Any one of us, any member of Parliament, has that inherent right to speak his or her mind the way he or she thinks is fit and proper in relation to a specific bill or issue.
Then, of course, there are the privileges of the institution. Disciplinary function — it's not up to the court to tell me that I failed to abide by one of the rules, the standing orders or Rules of the Senate. It's for the Senate to decide. The Speaker comes forward, makes a ruling. If the ruling is accepted, it's fine. If the ruling is refused, there is a vote; it's quashed, and it's the house that takes the decision. No court can intervene to force the Speaker to make a ruling, or I can't challenge the ruling of the Speaker in court. It stays within Parliament. Those are the privileges of Parliament.
So when we understand that, it is important, as our friend Senator Jaffer has mentioned, that when we exercise those privileges we have to be transparent. We have to be able to explain that everything we do is essentially for the benefit of Canadians. Why we have that capacity is essentially to serve the Canadian public. It's not to give us individually, as I said, a higher status to put ourselves outside the law.
For instance, suppose we passed a rule in the Senate whereby we decide that we can smoke in the smoking room that is the Salon de la Francophonie. Let me use that example. We think we need to smoke. It's relaxing. Don't quote me. I give that example. It sounds ludicrous, but it illustrates my propos. Suppose we claim we have that privilege, that we can decide that for ourselves. Citizens will say, yes, but there is provincial legislation that prevents smoking in public places. Then we would say, "No, no, no. We are parliamentarians. We can do whatever we want in Parliament.'' Then the question would be, is this a stretch of privileges that goes much beyond what is necessary? Is it needed really for the legislative, deliberative function of the house and needed to keep the government accountable for its decision? That is the essential role of Parliament.
You can understand there are limits to what we can claim as privilege, and that's why I think the issue of transparency and accountability also — because if we claim a privilege, we have to be able to be accountable for it. In other words, we have to be able to explain the reasoning, the rationale and the need for it for that specific role we have in the legislative, deliberative function in our capacity to hold the government to account.
I think there is a logic there that needs to be understood in the contemporary context, because the word "privilege'' is inimical, as I said, to the equality of citizens and the respect and dignity of each and every person in Canada. That's why this exercise of privilege takes a different colour in a modern context.
As was said by the presenters, more than that, we have a Charter of Rights and Freedoms. We live in a culture of rights, and there are rights there, and citizens generally expect that they will be respected. They expect also that we will apply the same for us.
For instance, let's take the example of the Vaid case. What is the Vaid case? The Vaid case stems from the wrongful dismissal of the driver of the Speaker of the House of Commons. That person claimed that he was discriminated against because of his colour. That person, of course, went to court to fight that dismissal decision on the basis that he had human rights that have to be respected. In other words, he could go to the Human Rights Tribunal and explain his case and there would be a ruling, and that ruling would be binding on the parties. The claim was, no, you are an employee of the House of Commons, and the House of Commons is superpower to any of its employees. It can do whatever it wants. It does not submit to the respect of the rights under which any other Canadian is covered in the Human Rights Act. Then you say, "Is it that case? Does it mean that for the 5,000 employees on the Hill, their human rights are not protected? They are at the whim of the Senate or the House of Commons?''
It falls under common sense that those people should be treated exactly like any others. People who operate elevators operate the same elevators in the private sector as they do on the Hill.
In other words, in its decision, the court made a distinction between all those employees and determined the scope of the privilege of exercising control of the employees. The court came to the conclusion that no, no, no, the only employees that the house or the Senate has total jurisdiction over — I will summarize — are the people around the table, and the Clerk necessary for the exercise of the deliberative function of the Senate. But the people who serve in the cafeteria or take care of the maintenance are ordinary employees and should be protected by the act.
Then we can understand that, in the contemporary context, there are limits to what we can claim as privilege. It doesn't mean we don't have privileges. We need to have a certain capacity to exercise our function without the intervention of the court, no more than we intervene in the way a court organizes its sitting, its hearings and its conduct, the way judges behave and so forth. We are totally out of that, because they are unto themselves; they are separated and protected by the principle of the separation of power in the Constitution.
In other words, we have to understand that in the contemporary context, we need to review those privileges that are claimed to have been existing, that we have legislated also, because we can legislate privileges in the contemporary context, but to a point being transparent — I come back to the question raised by Senator Jaffer — being transparent in our exercise of it and being compelled to explain to Canadians why we think those privileges still exist and should continue to exist.
I think it is a very important element because the discussion in relation to the Auditor General's report, in my opinion, raised the issue of privileges: Who will determine what is the responsibility of a senator or a member of Parliament in relation to exercising his function in the deliberative role and capacity to hold the government to account? What is needed in terms of responsibility and initiative in relation to exercising that mandate we have once we are elected or once we are sworn in as a senator?
This is an important issue to understand and reflect upon because that's the better way, in my opinion, to approach solutions to the issues that are raised in relation to that. Clearly, every one of us understood the scope of our mandate, how far it goes and which freedoms we have individually to determine what is linked to our role as a parliamentarian, as a senator or as an MP.
That's why, Mr. Chair, I follow up on the suggestion of Senator Tkachuk last week. I think it is important that we have that discussion on the floor of the Senate. I thought about that after the meeting, and I said that some of us, because we were involved in the subcommittee — like you, Senator Nolin and Senator Furey — with the support of the Clerk of the Senate and the research library, we've been able to reflect on those, but we want to be sure that we share that with our colleagues. It strikes me as something essential to do.
How do we prepare for that? How would we structure that kind of presentation and free discussion we would have on the floor of the Senate, with the expert on the floor of the Senate, so that any one of us can question back and forth? Each one has a right to be on the roll. We can extend it. We can have two sessions, if needed. We won't exhaust the list of people who want to question, but I think we should definitely have that kind of common, shared reflection.
That's why I would like, maybe today, at the conclusion of this meeting, for us to advise what will be the next step in preparation for that, if, of course, my colleagues on the other side want to share in that kind of initiative.
The Chair: Thank you very much, senator. I appreciate it.
Senator Tkachuk: I have some comments and questions. Let's see if we can answer by discussion or by direct answer.
Are parliamentary privileges public or private? In other words, a member on the floor of the Senate or of the House of Commons is free to speak and say what he or she wants. Other senators and parliamentarians, if it's about them, can protect themselves because they're there.
Much has changed in the last 100 or 150 years. Citizens themselves, how do they protect themselves on the question of privilege? Because a senator or a parliamentarian can say things that may be disparaging about a citizen, a company or a business, unsubstantiated, or he or she is just exercising their right in a debate. But how does that person protect himself or herself, and does parliamentary privilege extend to the public?
The last question is this: Does parliamentary privilege extend to officers of Parliament? In other words, the Auditor General, the Commissioner of Official Languages and all these other parliamentary officers, because they're officers of Parliament, does parliamentary privilege extend to them, or are they like any other citizen and can be sued?
Senator Cools: They can be sued by us.
Senator Tkachuk: Even though they're our officers —
Senator Cools: But they're not our officers. That is a myth. There's no such thing as an officer of Parliament. The houses have their officers. Her Majesty has her officers. This is a very relevant point to this debate.
Senator Tkachuk: Whoever wants to answer.
Mr. Robert: On the question of public or private: By and large, the actions of parliamentarians are intended to be public, so the protection of parliamentary privilege basically has a public aspect to it. This goes back to the discussion we had earlier about transparency and accountability. Your behaviour is intended to be public behaviour. You're not supposed to be secretive in what you do. Your parliamentary privilege basically is a protection for a public manifestation of your behaviour that might be observed by somebody and that could, in other circumstances, cause a suit to be considered for defamation or whatever you like.
Citizens have very little protection with respect to anything said by a parliamentarian that would otherwise be found to be defamatory. Australia has put in place, and New Zealand now more recently, something called the right of reply. It is an acknowledgment that some things that Parliament does through its use of privileges can be damaging. I don't think, personally, that it is particularly effective.
In the Commonwealth Parliament, if you want to invoke the right of reply, it is reviewable first by the Speaker. So the Speaker can decide: "Sorry, this is not important enough. I don't think you get to go beyond first base.''
If the Speaker says yes, then some kind of evaluation is made, and the objection raised by the citizen to the statement made by the member will be printed in either Hansard or the journals. So a record will be kept of the citizen's objection. But Canada has no such system.
Senator Cools: Thank God.
Mr. Robert: Whatever you say — which could be broadcast now because we are very much an open institution from that point of view — will be heard far and wide, and there is no recourse on the part of a citizen.
New Zealand has recently confronted that case. A woman who was defamed by statements made in the house that were repeated, but still in the house, in a way that suggested how the information came about, tried to sue the minister, the supporting official who gave the information to the minister, and the supporting document that was written.
The three courts, the High Court, the Court of Appeal and the Supreme Court of New Zealand, said the minister is absolutely protected, nothing can be done.
However, the official and the document that was written to prepare the minister were liable to the law of defamation, and there would be a right to sue.
The House of Representatives was up in arms at that decision and passed a law that codified parliamentary privilege and instructed the courts to back off. That is a view that has been accepted by New Zealand, and it's a question for us whether, in the era of the Charter, we would accept it.
A researcher in New South Wales has written extensively on parliamentary privilege in the modern era and points out that Canada is unique in the Commonwealth because we actually have a Charter of Rights entrenched in our Constitution, and no other large, prominent Commonwealth parliament in our system has entrenched Charter rights in the Constitution the way we have. That's what creates a different environment, perhaps something that is genuinely unique in Canada, as opposed to elsewhere.
Senator Tkachuk: And parliamentary officers?
Mr. Robert: Parliamentary agents? I think Senator Cools is absolutely right. I don't think they are officers of Parliament. They are established by statute, and they are susceptible to any action that any citizen wants to take against them.
Senator Joyal: On that very question of Senator Tkachuk, for each of those officers of Parliament, the constituting act will tell you, me and the public generally what kind of power they exercise, and they're limited to those powers. If we want to extend the privileges of Parliament to those officers, it would have to be clearly stated in the constituting act.
I don't know if you remember, senator, when we adopted the amendments to the Parliament of Canada Act to create the Senate Ethics Officer. We were delegating to the Senate Ethics Officer the disciplinary function, which is in a sense a privilege of Parliament. We were concerned about that, and there are sections in the Parliament of Canada Act that specifically limit the responsibility of the SEO to make a report and not decide.
In other words, the SEO cannot decide anything except to report to the committee, and the committee is elected by members of the Senate. In other words, there is no automatic transfer of privileges to any officer of Parliament.
Senator Cools: If I may, because Senator Joyal is too humble to claim a role in that, at the time we were very eager to make sure that the Senate Ethics Officer was an officer of the Senate. It was a long story because three different prime ministers tried to have a unified officer for the two houses. There is very little about Parliament that is unified other than the houses to Her Majesty. The three parts of Parliament operate independently.
People like Senator Joyal, myself and others fought hard to make sure that that position was within reach of the Senate and the senators.
I have couple of other issues. We've had some pretty nasty cases here in Canada, too. The Helena Guergis case bothered me a lot. She couldn't sue anybody. I want to address two things: first, the term "officers of Parliament,'' because it is a fabrication. They are statutory officers, which means, as Senator Joyal said, their powers are limited to those stated in the statute.
Everything stated about the Auditor General's immunity doesn't apply to senators or the Senate. When the statute was created originally in the U.K. and then in Canada, where the position of the Auditor General was merged with the deputy minister of finance, they wanted to create a creature that was totally independent of government, beyond its influence and control. They did this in England. Gladstone was a big player in all of this. In 1878, the Auditor General Act, in Canada, was created. The position that was created then is not the position we now have.
In early days it was all built on auditing what we called the appropriation. They called it the appropriation audit because and that was the auditor's function. The first clause of the powers and duties of the Auditor General's statute, it says he shall be the "auditor of the accounts of Canada.'' The Senate is no part of the accounts of Canada and is no part of the public administration.
I believe during 1878 House of Commons debate you found lots of members saying things like, "We want to create a parliamentary officer in contradistinction to a Crown officer.'' Most office-holders predate statutes — the Attorney General predates any statute and the Solicitor General predates statutes. In debate, members used the term "parliamentary officer'' interchangeably with "statutory officer.'' This meant no pre-existing powers by ancient precedents. At some point in time, people at PCO started to reverse the term "parliamentary officer'' and made it "officers of Parliament.''
The unique feature of officers of Parliament is to remember the houses do not have the power to appoint even their own officers. Appointment is a duty of the king, the queen. My point is that the officers of each house, the Clerk of the House of Commons and the Clerk of the Senate, are independently and separately attached to the house that they will serve, by Her Majesty's commission.
There are no officers of Parliament, per se. There are officers of the house. The only person who may be able to make a claim to be an officer of Parliament is the Senate Clerk, who is also Clerk of the Parliaments, but not of Parliament, meaning that the Senate Clerk is the person in charge every time the Queen summons a Parliament.
There is much confusion. I think at some point in time, chair, we should look at dispelling the enormous mythology, which is very temporary and recent, because the term "officers of Parliament'' is now disappearing in favour of the term "agents of Parliament.''
If officers can style themselves one thing today and another thing tomorrow, it gives one deep pause.
I thank Charles. There were many privileges members had years ago — not us because that was not really taken up in Canada. They were privileges that applied to members, their families and their servants. But very early in Canada, much of that fell into disuse. It's very important, because we don't know how these criminal processes are unfolding and what's happening in some of these trials going on, but we should get armed with knowledge and confidence.
The Chair: The analyst would like to make a quick wrap before we roll to the other speakers.
Ms. Lithwick: With respect to Senator Tkachuk, and it ties back to Senator Jaffer and a bit to Senator Cools, there is a 2nd century saying that it's not upon us to complete the work, but nor are we free to desist from it. It is a 2nd century saying that speaks to the ongoing nature of parliamentarians to continue with their work and determine how they wish to exercise their privileges going forward.
Part of the rationale, going back to some of the language for the subcommittee's work, also had to do with building that understanding, that institutional memory, and that consciousness, thoughtfulness, cognizance in order to take a thoughtful approach up and be able to explain it in terms of how senators wish to exercise their privileges in the Senate. There is that power, and the power to exercise that properly requires that understanding.
Senator Jaffer: If I may respond, I appreciated your explanation, and I think this is the start. I'm sure we will have discussions.
I also am very much in favour of Senator Tkachuk's idea of having a Committee of the Whole and discussing this, but I would say before we go to the Committee of the Whole, we need to have detailed discussions. As a committee presenting this, we are certainly aware of what the subcommittee was thinking, and I would really like to hear more.
I am very concerned about the accountability, responsibility and transparency. I'm not concerned about being that, but I think that we need to have a further discussion on that and hear from committee members as to where we are going with this so that when we, as a committee, go to the chamber, we are all at least somehow in agreement with this report.
The Chair: I agree with you. Senator Martin had a question; she is not here right now. Our intent was to start a process, not to complete a process, and in fact if anything at least I have some fear that if we don't formalize this process, in six or eight months it won't continue; that is my concern. Really our intent here is to try to get this entrenched some way in the work we're going to go over for the next period of time.
Senator Martin is not here. Any other questions? Discussion?
Senator Joyal: I want to thank Senator Cools for raising the issue of the amendments to the Parliament of Canada Act that created the Senate Ethics Officer. I'm looking at Senator Tkachuk when I say that because the government tried three times, as you well remember, to I would not say impose, but to suggest there be only one ethics officer for both Parliament and for the public service. I was convinced personally that it was against the parliamentary privilege to discipline our own members.
You will remember of three of those initiatives, two came from Prime Minister Chrétien, whom I opposed on that very strongly; you will remember that. With the support of the opposition at that time, we were able to prevent that. I remember the discussion we had, as I mentioned to you, senator, to limit the power of the Senate Ethics Officer to act only under the direction of the committee of senators.
In other words, as you will read in the Ethics and Conflict of Interest Code for Senators, the committee has the power to give a directive to the SEO, and when there is an investigation, the report of the SEO is to the committee. It is for the senators themselves to accept it or not, or to qualify and so forth.
I think, on the whole, for the last 10 or 11 years that it has existed, it was a wise decision. Because we still have the capacity to move in the direction, we can improve the code, as Senator Andreychuk would say quite eloquently, but we would maintain, intact, those principles, in my humble opinion, that are essential for this institution to continue to rule its own affairs in the way it thinks proper. I want to thank Senator Cools for mentioning that.
Senator Cools: We are all indebted to Senator Joyal.
Senator Joyal: I had forgotten about it because so many things came after, but I am glad it was mentioned. Thank you, Senator Cools, and thank you, Senator Tkachuk.
The Chair: Both Senator Furey and myself have had discussions with our leadership around the Committee of the Whole, and I agree with Senator Jaffer that this will take a few minutes here to make sure we are in a place to be ready for that. Senator Furey is not here this week, and I know it was important to him to engage in that discussion as well.
Senator Cools: I was agreeing. I was nodding saying "good'' because I think members of the committee are getting a real feel for it, which I think is a wonderful thing.
The Chair: Thanks to everyone, in particular to staff — they were excellent presentations, as I expected — and Senator Joyal, of course, for always jumping in.
(The committee adjourned.)