Proceedings of the Standing Committee on
Rules, Procedures and the Rights of Parliament
Issue 13 - Evidence - May 22, 2018
OTTAWA, Tuesday, May 22, 2018
The Standing Committee on Rules, Procedures and the Rights of Parliament met this day at 9:36 a.m., pursuant to rule 12-7(2)(c), for the consideration of the orders and practices of the Senate and the privileges of Parliament.
Senator Serge Joyal (Deputy Chair) in the chair.
[English]
The Deputy Chair: Honourable senators, it’s my pleasure to welcome you to this meeting of the Standing Committee on Rules, Procedure and the Rights of Parliament. I would ask honourable senators to introduce themselves so our guest this morning will be familiar with each and every one of you.
Senator Greene: Stephen Greene from Nova Scotia.
Senator Marwah: Sabi Marwah from Ontario.
Senator Gold: Marc Gold from Quebec.
[Translation]
Senator Ringuette: Pierrette Ringuette from New Brunswick.
[English]
Senator Woo: Yuen Pau Woo from British Columbia.
Senator Wells: David Wells from Newfoundland and Labrador.
Senator Maltais: Senator Maltais from Quebec City.
Senator Seidman: Judith Seidman from Montreal, Quebec.
The Deputy Chair: Thank you senators.
In June 2015, in the last session of Parliament, this committee tabled a report entitled A Matter of Privilege: A Discussion Paper on Canadian Parliamentary Privilege in the 21st Century. Our committee has agreed to continue this good work, and this is our fourth meeting on the study this session.
Parliamentary privilege — I’m sure that the Honourable Ian Binnie will know about it — is an essential component of parliamentary democracy. It exists to enable Parliament to function effectively and efficiently without undue impediment.
Today, it is my great pleasure to welcome our witness, the Honourable Ian Binnie. I will introduce him with some short biographical notes to share his wonderful professional experience with colleagues around the table.
Born in Montreal, Ian Binnie received a BA from McGill University and LL.B and LL.M from Cambridge University. He holds honourary doctorates of law from the Law Society of Upper Canada and McGill University. In 1990, he acted as special parliamentary counsel to the joint committee of the Senate and the House of Commons on the Meech Lake Accord. This doesn’t make you old; it makes you experienced, Mr. Binnie.
He was appointed to the Supreme Court of Canada in January 1998 and retired in October 2011. During his time on the country’s top court, he authored more than 170 opinions, including landmark cases involving corporate and commercial disputes, Aboriginal rights, copyright, media law, expert evidence and many other aspects of constitutional, criminal and administrative law.
Former Justice Binnie serves as special arbitrator for the Senate as part of its dispute resolution process following the Auditor General’s report.
Thank you so much, Mr. Binnie, for accepting our invitation. I will ask you now to make your opening remarks. After that, we will have an exchange around the table. The floor is yours, Mr. Binnie.
[Translation]
Hon. Ian Binnie: Thank you for inviting me to appear before your committee. I will make short comments in English and then try will to answer your questions in French. After spending five years in Toronto, I’m not doing as well in French as I used to.
[English]
I do not appear as an expert in privilege. Others who have appeared and who will appear and those around the table have more direct experience.
Where I do have experience is in the interface or interaction between the courts and Parliament. In particular, on issues of parliamentary privilege, I acted for the Senate of Canada in the New Brunswick and Donahoe case, which had to do with whether the CBC could force the House of Assembly of Nova Scotia to accept cameras in the balcony. Also, there was an attempt by the Auditor General to audit the Senate accounts at some point in the 1990s, and I acted for the Senate in resisting that particular initiative. So I have had a number of occasions dealing in the courts with matters of Senate privilege.
For this morning, I have certainly read the report of the Senate A Matter of Privilege, together with the testimony of Richard Gordon and Dan Hays.
I will make a couple of comments first on Richard Gordon’s presentation because he was speaking in an entirely different constitutional framework. The issue in Canada has never been Parliament versus the sovereign, but it has always been a very practical question of Parliament and the courts, the courts in at least two senses, one being that it would make parliamentary life impossible if the courts were to micromanage what goes on in the Senate or the House of Commons.
An example given in Vaid is if someone feels they have not been adequately recognized by the Speaker in posing questions, they could run to the courts and say, “Well, this has to do with discrimination on the basis of gender or whatever.” What one must always keep in mind in dealing with the courts is that it’s very easy to start a court case, and it takes a long time and is complicated. In the meantime, you may well find the proceedings in Parliament suspended, which is very much against the public interest. That is essentially why the Constitution recognizes a high level of autonomy in both houses of Parliament.
The second reason, of course, is expertise. You know a lot more about how a legislative branch works than the judges do. What judges deal with on an everyday basis has nothing to do with the propriety of the legislative function.
Mr. Gordon said, “Well, perhaps there could be some kind of consultation between the judges and the parliamentarians.” In our system, that simply wouldn’t work. One must understand that although the courts have the last word, the only reason they have the last word is that’s their job description under the Constitution. Somebody has to have the last word, and it has been assigned to the courts. It could have been assigned elsewhere. So the courts have to work independently of the parties.
If, for example, had the chauffeur in the Vaid case brought a complaint and then the Senate had said, “Well, we’ve had this private discussion with the judges of the Supreme Court and we all agreed, Mr. Vaid, that actually parliamentary privilege covers your case,” Mr. Vaid would rightly say, “Well, where is the independence of the judiciary? I wasn’t present at those discussions, so I had no input.” It would be impossible, I think, for the judges to lend themselves to some kind of informal process.
But what does appeal greatly in what has been addressed by the committee in its report is codification because the words in which privilege are defined are ancient. They carry a lot of baggage over the centuries. The dignity of Parliament is not really what most people would consider dignity to mean. It is a term of art for parliamentarians.
People outside Parliament have to deal with Parliament — people who feel insulted or defamed by what is said in Parliament. There are third parties who have to have some idea and insight into what you say is protected and what you say may not be protected. So it’s not only for the benefit of the Senate and the house that privileges be codified, but it first of all forces the members of Parliament to focus on exactly what they regard as essential and necessary to their legislative function and matters associated with their legislative function. In setting it out, it is a statement both to parliamentarians themselves and to the public.
There is commentary in your report, “Well, this would lead to a loss in flexibility,” but that really is not, in my opinion, a valid objection. The Canadian Charter of Rights is supposed to outline a framework on a much larger canvas of the individual rights and freedoms of Canadians, and it does so in a relatively few sections. Those sections are broadly worded and require interpretation, but it is an alert to everybody as to exactly what Parliament and the provincial legislatures, when they adopted the Charter and went to Westminster, considered to be the bedrock principles on which Canada should stand.
A similar exercise of codification doesn’t have to look like the Income Tax Act. It can be a very general statement, but at least it sets out the parameters in modern language.
The next point I would make leading on from the independence of the judiciary is that the courts do not get involved in the legislative process. You will recall thePenikett case and the Sibbeston case, when the territories felt unrepresented in the adoption of constitutional amendments, and the court said, “We have nothing to do with the legislative process. Our work begins when the work of Parliament ends.”
Chief Justice Dickson, in a case involving the Auditor General, who was seeking access to cabinet documents, said, “Look, the whole system of our government — the legislative, the executive and the judiciary — works when each of the three has a proper appreciation of its own role in our constitutional arrangement so it operates by self-restraint in every case.” In the Auditor General’s litigation, the decision of the Supreme Court of Canada was, “We are not here to arbitrate between the Auditor General and the government and the House of Commons over access to cabinet documents. That is not for the judiciary. That is for the House of Commons to deal with.” Of course, years later, in the Afghan detainee papers, you had a very forceful ruling from the Speaker of the House of Commons on exactly that issue.
I would add just a couple of minor points. In Stockdale v. Hansard, which was the great case in the British courts dealing with privilege, the court said, “The courts will be tender towards what goes on in Parliament until it affects third parties outside Parliament.” And at that point, the judges become jealous. So it’s a bit like Othello in Shakespeare, from tenderness to jealousy, when you have elements added, and the most important element is the ordinary citizen who is deprived of the ordinary rights pertaining to the ordinary citizen by reason of this privilege that is established for the overall public good of the functioning of the country but is really not intended to operate harshly on an individual beyond what is essential.
I note in the Senate report that you talk about the matter of Michaud in Quebec and Jan Wong, and other cases of people who have felt without a remedy when they consider themselves unjustly maligned and have no recourse.
The final thing I would say is that in line with everybody exercising restraint in pushing their powers to the maximum, one sees in decisions, most of which are cited in your excellent report, for example the New Zealand case of Gow v. Leigh, where the civil servant muttered in the ears of the parliamentarian advice which was thought to be improperly activated, malice broadly so-called. There, the question of necessity is very present. It may be necessary to protect members of Parliament to freely exercise their rights without interference from the court, but why should somebody who is affected by advice that is poisoned by malice have no remedy against the person who planted the poison in the ear of the parliamentarian.
So the courts tried to avoid a clash. They tried not to say, well, Parliament trumps the Charter or the Charter trumps Parliament. What the courts want to say is that there is a middle ground in which the legitimate interests of Parliament can be accommodated to the Charter rights. Vaid was an example. I think this New Zealand case was an excellent example as to how that can be done.
With those remarks, Mr. Chair, I surrender the floor.
The Deputy Chair: Thank you so much, Mr. Binnie. I think you have touched upon all the aspects of our work and the need for us to consider appropriate alternatives.
Senator Batters has joined us. She is from Saskatchewan.
Senator Gold: Welcome, Justice Binnie. I have two questions. You supported the idea of codification. The first one is about content. Are there particular areas of privilege that you think need special attention to be clarified? The second is more process. Would you support the idea, which has been somewhat discussed in these hearings, that the Senate develop some internal mechanisms to make sure that third parties who are affected by claims of privilege receive their due process internally as a way of the Senate managing these issues better when they have an impact on third parties?
Mr. Binnie: Yes, taking the second question first, I think it is vital to have a process. I throw out the analogy with the courts. If somebody has a complaint against a judge for saying something out of turn, discriminating against them or otherwise acting inappropriately, they can go to the Canadian Judicial Council. There is a forum to hear complaints, even though judges are not, in the ordinary course of things, attackable or challengeable, apart from appeals. There are all sorts of examples where an adequate forum can be created.
On areas of privilege, one of the major areas that came up again and again in the Senate expenses hearings was how far privilege extends to the management of the internal affairs of the house. In Vaid, we had that question: Was it management of employees? Do you create subcategories and put a little barbed wire around those subcategories so they don’t get out of control?
I think something like freedom of speech also has to be looked at, not only in terms of the Charter. Hate speech, is that covered? Criminal defamation, is that covered? But also in the era of social media, the ability of parliamentarians to damage people without recourse has been vastly expanded. Technology has brought fresh issues that were never in the minds of the judges in Stockdale v. Hansard. But again, it’s the same problem, third parties. What the Senate does about its own dignity within the Senate probably doesn’t concern most people outside what they read in the newspapers. What happens to an individual matters a lot to that individual.
Senator Gold: May I follow up with a question? It may be an inappropriate question, so please forgive me. From your experience on the bench, how do you think judges would view the internal mechanism set up by the Senate to deal with an individual? Would that enhance the court’s willingness to defer were the Senate to have a fair procedure for dealing with third party issues?
Mr. Binnie: I’m not sure whether deference is the right word. It would certainly be more coherent. The courts would understand how the Senate conceived of functions necessary to discharging its mandate. It would depend a little bit, of course, on whether it’s a resolution of the Senate adopting something like the ethics code or whether there was a law, an amendment to the Parliament of Canada Act, in which case it would have to comply with the Charter, subject to the usual debate about the impact of the Charter.
For example, in Vaid, essentially what they were handed was a copy of Joseph Maingot’s book, Beauchesne, Bourinot, Erskine May, a stack this high full of incredible detail without any really coherent explanation from the parliamentary point of view as to what it was all about. I think the codification would provide that.
The Deputy Chair: If I may add, codification would also have the benefit of maintaining coherence. As my colleagues around the table know, there are many provinces that claim privileges on the basis of the privileges of the House of Commons. In other words, it would streamline the system in interpreting privileges because there would be a capacity to build jurisprudence in a coherent way. That could certainly be an aspect of the benefit, even though there are other sides of it, which is the fact that it might instil into the system a greater rigidity. Well, now, we are more flexible to adapt to circumstances with, of course, the uncertainty that it carries. It’s part of the discussion.
Senator Batters: Thanks so much, Mr. Justice Binnie. As a lawyer who studied your decisions and quoted from them when I practised, it’s a real privilege to have you here today. Thanks very much for being here. It’s also fun for a lawyer to ask a distinguished judge questions, because we don’t often get that chance.
In the Vaid case, you described the necessity test as this:
. . . in order to sustain a claim of privilege, the assembly or member seeking its immunity must show that the sphere of activity for which privilege is claimed is so closely and directly connected with the fulfilment by the assembly or its members of their functions as a legislative and deliberative body, including the assembly’s work in holding the government to account, that outside interference would undermine the level of autonomy required to enable the assembly and its members to do their legislative work with dignity and efficiency.
I would like you to tell us a bit more, particularly on that necessity test, about dealing with the assembly’s work in holding the government to account and how that plays an important role in establishing that.
Mr. Binnie: Yes. To me, the defining words of the parliamentary system is the expression “the grand inquest of the nation.”To my way of thinking, almost nothing should be off limits for Parliament to explore and to pursue, with due regard for the rights of others who can’t be heard themselves, but free speech, going back to 1689, is the absolute core of parliamentary privilege.
I think the limits that are placed on the grand inquest of the nation should have nothing to do with subject matter. In the expenses inquiry, I think it was Senator Boisvenu who had a special interest in victims’ rights, which he pursued. The Auditor General said, “Well, that’s got nothing to do with the legislature.” And I respectfully disagreed. I thought it had everything to do with his role as a senator, as a legislator and as part of the grand inquest of the nation.
I think that this freedom to look under any stone, to pursue any subject that a senator believes to be in the public interest, whether other senators agree or not, is essential to the functioning of the system.
Senator Batters: Absolutely. You’ve already gone into it a bit, but how would you say the jurisprudence on parliamentary privilege, then, has impacted the work that you have done for the Senate on the evaluation of the Senate expenses following the Auditor General’s report?
Mr. Binnie: I don’t know. It kind of rose like a bit of a rocket and then disappeared, so I don’t know what happened.
Senator Batters: For all of us.
Mr. Binnie: But I do think, going back to Senator Joyal’s comment on creating consistency, that if there were a code, then you would annotate the code with rulings by particular Speakers and by the Senate itself so that you would develop a kind of jurisprudence. I would think of it more in the nature of the civil code, that unlike the common law, those rulings wouldn’t become binding because the text of the code would be what is binding. In having a rule explicated in different contexts, in different subjects and by different minds, you would put flesh on the bones of the code. That would provide much better guidance.
Senator Batters: Thank you very much.
Senator Ringuette: I really appreciate your comments today. In the Senate, for many years now, we’ve had the code of ethics. The process is working really well. It allows third-party complaints to be directed to the Senate Ethics Officer. From my perspective, and in regard to what you call the dignity of the Senate, of the institution, with respect to the current process of Senate ethics with its third-party complaint mechanism, could that process also be enlarged by being the Senate code of ethics and code of privilege? Could you see that as being meshed together, first of all, for efficiency? We already have a process. We already have personnel. We already have all of that in place. It would be a matter of adding a code of privilege to that body. How would you see that?
Mr. Binnie: I could certainly see expanding the code of ethics to the much broader codification discussed in the Senate report. I think it would be better to have a coherent scheme rather than a number of subschemes dealing with specific subject matters.
I think the mechanism might have to be looked at, not so much in terms of the rights of third parties but the extent to which issues of privilege would be delegated to an official rather than dealt with by a committee of the Senate itself. Ultimately, just as in the privilege attaching to a senator versus attaching to an employee of the Senate, to me, there is something fundamental about the Senate taking control over such a broadened subject matter.
But certainly it seems to me that, as you say, there is a system operating in a corner of the subject matter. It uses words like “the dignity of Parliament” and “brings the dignity of the Senate into question.” Dignity? Where is it defined? In a sense, the code almost begs for an elaboration of some of the terms to make it clearer to the general population what Parliament has in mind that it is protecting.
Senator Ringuette: It has been my experience in the last 15 years in the Senate that whenever our process requires a prima facie recognition of a question of privilege by the Speaker, when there is a recognized prima facie case, we seem to be all over different committees. I don’t think that is efficient, and I don’t think that is the way we need to move if we want to include third parties within this mechanism. I would like to have your thoughts on that.
Mr. Binnie: In the sense that the system is decentralized now into a number of different subjurisdictions, I agree with you that it makes much more sense to try to draw it together, without underestimating the difficulty of pulling it all together. It’s a lot easier to hive off a little subject and deal with it and say all right, that’s out of the way. When you get into some of these broad propositions discussed in your report, then it is going to take real work to get the right words. But as your report points out, there are ample studies elsewhere in the parliamentary world that have looked at the subject and can provide some assistance.
Senator Seidman: Thank you for being with us today, Mr. Justice Binnie. We really appreciate it.
The former Speaker of the Senate who was here, Dan Hays, and Richard Gordon in their testimony both supported the codification of privilege. Both spoke of the necessity of reforming parliamentary privilege to take account of modern conditions, and they spoke of the natural tension between codification and flexibility. In your presentation, you made a passing remark to this, and I presume you meant for us to ask you to explain this further, so I’m going to do just that. You said the loss of flexibility is not a good argument to reject codification. Could you please explain that in detail to us?
Mr. Binnie: Yes. What I was thinking is that codification can mean anything from a handful of articles in the Charter to the Criminal Code with its 700 closely and densely worded sections, or the Income Tax Act, and lord knows how many sections it has now.
Yes, if the codification attempted more precision than the subject matter is really capable of, it would inhibit the development of the law of privilege and the ongoing review of what is necessary and what is not necessary.
But I don’t think codification requires a loss of flexibility, just as I don’t think we lose flexibility by taking some of the old common law doctrines of free speech and putting them into the Charter. I think what we have done is explained to Canadians, “Here is the full range of your rights that you may not have been aware of,” in a way that they wouldn’t readily pick up from the non-codified common law. I think the advantages it presents greatly outweighs flexibility. And, of course, can you always put in a little weasel clause in a code that says “and such further and other matters as the Senate may determine,” so you can, in the code, give yourself that flexibility.
Senator Seidman: With the necessity to account for modern conditions, of course, they are ever evolving, so there is a natural tension there between the codification of what we consider now to be modern conditions, but going forward there’s a natural evolution of these things. What you’re saying is that there are ways to build that in.
For example, in former Speaker Hays’s presentation to us, he quoted the U.K. 1999 joint committee, which recommended codification, and they said that the code should maintain flexibility by stating principles and then went on to say that principles should be stated with examples so as not to preclude future developments from being covered by the provisions of a parliamentary privileges act.
Mr. Binnie: I think examples are fine, but examples really become part of the code and therefore carry that authority. What I mentioned earlier was the notion of annotating the code with decisions based on specific facts, which don’t have the same binding force but which still provide guidance.
I’ll give you an example of one of the subjects that arise in connection with freedom of speech that you asked about earlier. One of the parliamentary committees thought that malice should be an exception, and if a parliamentarian spoke, motivated by malice, privilege would be lost. That is an example of modernizing free speech. I think that would be a backward step because, by analogy, in the United States, where you can only defame a public figure, the public figure can only collect damages by establishing malice, so you just automatically allege malice and then there’s a huge trial over whether malice was or was not present, which defeats the whole purpose of attempting to isolate the parliamentary function from the work of the courts. So not every evolution in the modern world is good.
Senator Seidman: Thank you.
[Translation]
Senator Maltais: Former Justice Binnie, I believe your ruling will go down in Canadian history. Even if you are no longer sitting, you have excellent judgment.
I would like to come back to one thing. I have spent half my life in parliaments, and I have never been treated the way the Auditor General treated parliamentarians in this saga. We are not entitled to the presumption of innocence. Our offices have been invaded almost as in the days of the Gestapo. We were found guilty in the public square because of leaks organized by his office or by him in the media. He did a forensic audit — no senator would have refused a financial audit, because we are all serious people — to get to files that have all been rejected in court.
And that is an understatement. It took a wise person like you to put the lid on and get those who, in fact, inadvertently, and not with criminal intent, had overspent. As parliamentarians, we have all been hurt. Deeply wounded, because honesty is not earned in a day, but for a lifetime. When we are targeted in public as dishonest people — we have families, children and grandchildren — it is extremely hurtful. There is no way to fix that. For us, you were the only salve in this matter, Mr. Binnie. How can such a thing not happen again in the future?
There was this whole affair, but there was also the $26 million bill that was passed on to taxpayers, and no one has any recourse against the clumsiness or incompetence of the Auditor General. This is a glaring example of a situation where the privileges of parliamentarians have been violated. We are parliamentarians with parliamentary functions and obligations. This is something the Auditor General did not understand at all. It’s a shame to say it, but it’s the truth. I say this publicly and modestly. Unfortunately, he did not know our work.
How can this be avoided in the future while respecting the rules of parliamentary privilege? What would you recommend so that senators would never go through this again and can regain their dignity, to which they are entitled?
Mr. Binnie: That is a rather delicate question, senator.
[English]
The Deputy Chair: He mentioned the word “privilege.” That’s why I let the question go, even though it’s not the direct subject this morning. Since it’s linked to the interpretation of the privilege of members of Parliament or senators, I thought the question was appropriate and I let it go.
Mr. Binnie: Of course, in responding, I’m not covered by the same privilege.
The Deputy Chair: You are as a witness.
[Translation]
Mr. Binnie: I understand the senator’s comment, and I made some dissenting comments in my report, at times, about the Auditor General’s point of view.
[English]
I don’t think I can really go beyond the commentary I have made.
In terms of process, because you’re talking to the future and not to the past, my recollection is that the whole basis for the Auditor General was a request by the Senate to do the audit. The request itself might have been more explicit on the ground rules on which the invitation was extended because there may have been a good-faith misunderstanding between the Senate and the Auditor General as to how far the Auditor General should go in terms of a document search and so on. I think those kinds of events can be controlled by the Senate itself in the first instance making clear what the mandate is.
Senator Marwah: Thank you again, Justice Binnie, for being here.
This is a question that has often crossed my mind as we have been going over the issue of parliamentary privilege. In issues where parliamentary privilege comes into conflict with the Charter — and I think Senator Joyal mentioned there have been a couple of instances where that has come into conflict — how does one resolve those differences? Or is there one section that trumps the other? In your judgment, how does one deal with those?
Mr. Binnie: Nothing trumps anything else in the Constitution. Privilege, Charter, division of powers — all of these constitutional enactments form part of the Constitution, and the job of the court is to try to work out a coherent functioning of the whole system together.
Although it was argued that the Charter trumps parliamentary privilege because of the fact that Parliament, in the Parliament of Canada Act, legislated, and for a while the Supreme Court toyed with the idea, “Because it’s legislated, then the legislation is subject to the Charter; therefore, the Charter trumps privilege,” but then that was clarified and the court said, “No, privilege is inherent in the Westminster system and is not trumped by the Charter but must be allowed to operate independently.”
I think probably some of the thinking behind that was the courts should not be in the business of jumping into the proceedings of the House of Commons and the Senate where they had no business trying to regulate procedure. That’s simply not their appropriate role.
The courts will attempt to avoid a head-on collision. For example, there was a great controversy within the Charter between free speech and fair trial rights, whereas in the United States, the New York Times comments on all kinds of stuff going on in court that a Canadian newspaper would not report. So it was thought, “Well, then, fair trial rights trump free speech.” And the court said, “No, they can coexist because not every speech actually compromises the integrity of a trial.” There are many examples where you can read down one but preserve the essential purpose, the necessity, without sacrificing the other.
At the end of the day, there could be a head-on collision where the court has no choice but to prefer one over the other, but that would be as a last resort, and I think what the court would then do is look at the purpose served by each of these two objectives, the context, whether there was a way in which one could minimally impair the one without wholly sacrificing the other and attempt to work out an accommodation. At the end of the day, part of the job description of the judge is to call it. If there’s a flat-out collision, they’re going to have to decide on the facts as they appear.
Senator Wells: I wanted to go back to the discussion about regulating the internal affairs of the Senate. The Senate reserves that privilege, as does the House of Commons, of course.
We’ve seen the practice whereby the executive will appoint the Speaker, the executive will appoint the Leader of the Government in the Senate, correctly, and the executive would, in the past and still does, appoint the clerk.
With that separation that we so dearly hold among the legislative branch and the executive, the judiciary doesn’t come into this part of the question. But with that separation that we so dearly hold between those two branches, what would be your comment on how we handle this, given the desire by the Senate to maintain its independence in its own affairs, yet the essential leadership of the Senate is chosen by the head of the executive?
Mr. Binnie: I think you’re going beyond my expertise because that is a straight question of how privilege operates within the legislative branch. I suppose one would have to consider — at least in the House of Commons’ case because the government commands a majority — that that same problem doesn’t arise. In terms of the independence of the Senate, I think that it would require somebody with much greater familiarity as between the relationship between the government and — they have a similar problem with the House of Lords which is now in open rebellion against the British government on the terms of Brexit. There’s a great argument as to whether the government has exceeded its capacity in imposing terms. So the problem you raise is not unique to Canada but falls squarely within the expertise of somebody who knows more about privilege than I do.
Senator Wells: Of course, while you were on the bench, you gave some consideration to the role of the Senate and the activities and privileges around some aspects like term limits and things like that. Sitting certainly not on the sidelines but as a key component of our three-headed system, do you see any danger in the executive branch exerting that much control over what we hold to be an entirely independent branch provided to us by our tenure and the fact that we’re appointed, not elected, and the fact that we sit until we’re 75 and all those things that protect us?
Mr. Binnie: It goes back to some fairly fundamental questions about the framework of the Westminster model and ultimately the ability of the House of Commons to have its way over the upper house, subject to certain conditions precedent, and the decision that this is how the system works. So I suppose, from a political science perspective, at the end of the day, the majority of the House of Commons supporting the government will have its way. Whether that is appropriate or not in terms of the ability of the Senate to fulfill its role is really a matter for parliamentarians to work out.
The Deputy Chair: Before the second round, I have two questions for Mr. Binnie.
First, in relation to your opening remarks, you mentioned that you read Mr. Gordon’s testimony and you underlined the fact that we are in a different system, because at Westminster the principle of parliamentary supremacy is still the defining principle, while in Canada we are a parliamentary constitutional democracy. Do you think the fact that Westminster has remained what it has always been, while Canada has taken a different path, would impact the principle of codification of privileges?
Mr. Binnie: I’m not sure it would impact the arguments for and against codification. I think there are complexities arising from the fact that this is a constitutional democracy, as you point out, and it places certain limits on what can or cannot be done, whereas the British Parliament would have a free hand, because, as you know, the Human Rights Act does not have the binding force of the Charter. I’m not sure that I can see a reason why it would impact the desirability or undesirability of codification.
The Deputy Chair: But you don’t see any constraints on codification in the Canadian context because we have to take into account the overall structure of Parliament, as Senator Wells mentioned, whereby we are in a different context in the exercise of our parliamentarian privileges? Would the fact that we have a Charter that is binding be part of the overall context into which the codification could take place in Canada?
Mr. Binnie: Yes, absolutely, it would affect the content of the codification. But in terms of whether the codification as a concept is a good or bad thing, I’m not sure the differences in our systems would dictate a different solution. Certainly the fact that Canadians have certain rights that are as embedded in the Constitution as much as the privileges of Parliament will affect how the legislative bodies draw the limits around the privileges they enjoy.
The Deputy Chair: It seems to me one of the key elements we have to take into account in the process of codification, because the codification cannot take place in a vacuum. It has to take place within the context of the Canadian Constitution. As you know, privileges are part of the Constitution, so they are to a point determined by the overall context of the Constitution. I think that if we are to embark into codification, we have to understand the framework into which the codification will take place, the scope of it and the flexibility that we might want to keep within it to address the evolution of the Constitution as it is defined in Canada. In Britain, Parliament can change everything overnight by a simple majority at Westminster, while in our context there are real limits under which we are confined to act. That seems to be one of the key elements on which we have to concentrate our reflection.
Mr. Binnie: I agree with you. The fact is that Canadians have individual rights that can be asserted and which ought to apply equally across the board, and parliamentary privilege, while it is part of the same public law, is an exception to the ability of the individual citizen to exercise his or her rights. It is a very important qualification that Britain doesn’t have. It seems to me that is an argument to have a codification because of that complexity, and it ought to be addressed.
I think Senator Hays quoted one of the presidents of the U.S. as saying, “The time to fix the roof is when it’s not raining,” which seems to me good advice in terms of putting together a code.
The Deputy Chair: Yes, and the forecast is that it’s going to rain this afternoon.
I have another question I want to put to you. I know that you have put some thought into part of section 18 of the Constitution in previous decisions. I want to read that to you:
The privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada —
That is what I want to question you on.
— but so that any Act of the Parliament of Canada defining such privileges, immunities, and powers shall not confer any privileges, immunities, or powers exceeding those at the passing of such Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland . . . .
Do you think it is still essential for the Canadian Parliament to maintain this kind of reference of what is admissible at Westminster if we are to codify privileges in Canada? Or do you think we should maintain that in the very rules of the codification?
Mr. Binnie: I personally see no reason why Canada would have to judge its own requirements by reference to what England, Great Britain, was doing in 1867. Even in 1867, the British law of privilege was all over the place, and Parliament was still asserting that it had the final word and the courts disagreed. It’s a very uncertain guide as to what those limits are. I think probably the people who drafted the section simply said, “Well, they can’t run amok and create privileges beyond anything that could be considered necessary.” But the fact that the fundamental principle of the British system is necessity, it seems to me, gives Canada all the licence it needs, to the extent it has to have reference to the British experience. That’s really the only principle that arises out of the British experience that I would think is binding. But I don’t know why Canada would want to depart from the principle of necessity. To the extent you did depart from necessity and it infringed the rights of third parties, ordinary citizens, there would be a Charter problem in any event.
The Deputy Chair: Do you think in the codification we should recognize the principle of necessity and amend section 18 through section 44, which is the prerogative of the federal Parliament to take the initiative to amend its own Constitution? Section 18 is in relation to the Parliament of Canada, per se in a statute, whereby we would adopt codification. We could at the same time amend section 18 but introduce the principle of necessity in the codification itself so that we maintain that conceptual link with privilege in the traditional Westminster style of Parliament.
Mr. Binnie: I think the question that would arise with that flows from the decision of the Supreme Court in the Reference re Senate Reform saying that amendment to the architecture of the Senate is not purely a matter for the Parliament of Canada, but that it being a national institution, you get into the amending formula if you make a material change.
Now, whether what you’re suggesting would be considered a material change or whether it would be considered as purely a matter for the Parliament of Canada to determine, I don’t know. There would be arguments both ways because I think certainly the provinces would take the view that any step to amend the Senate, even in marginal ways, may somehow undermine their position of the Senate as a national, not a federal, institution.
The Deputy Chair: I don’t want to argue with you, but in one of your own decisions, you concluded that the source of privileges for provincial legislatures stems from the introductory clause of the Constitution, whereby the federal Parliament derives its claim of privilege from section 18 in the Parliament of Canada Act. So it could be an argument on both sides.
Mr. Binnie: But I did not have in mind what emerged as the decision of the Supreme Court in the Reference re Senate Reform. That was at pains to redraw the relationship between the Senate and the provinces as part of a much broader picture. If I were writing that today, I would have to take into account what the Supreme Court said in the Reference re Senate Reform.
The Deputy Chair: Thank you very much. I wonder if my honourable colleagues would like to deliberate if we should not retain your service to help draft a codification initiative so that we could, from that document, then reflect upon and see how much progress we could make in relation to this. The only remark I will make in conclusion is that, as you know, as the familiar dictum says, you need two to tango,and if we go for codification, we will need to have the concurrence of the House of Commons, as you know. It would have to be a joint initiative.
On the other hand, I think it’s for the Senate to take the initiative in relation to that and do the groundwork needed to move on that, because I think that the conclusions of the special report of this committee in relation to privileges is still very valid. As you saw from jurisprudence, a number of cases in the last 20 years in relation to privileges are accumulating — I’m sure you keep an eye on the agenda of the higher courts in Canada — and as you can see, they are not diminishing but are in fact adding. There is a situation that we need to address, that Parliament needs to address, to face the challenges of the Charter and how we manage our own affairs.
Thank you very much, Mr. Binnie. Unless you have conclusive remarks to present, I will adjourn this meeting.
Mr. Binnie: Thank you all for listening to somewhat rambling answers. I would have hoped to have achieved greater brevity in response, but there it is. Thank you very much for the invitation and for hearing me out.
The Deputy Chair: Thank you very much, Mr. Binnie. We’ll keep in touch in the next weeks. Senator Housakos, who is the chair of this committee, will keep in touch with you on behalf of the members of this committee.
Thank you very much, honourable senators.
(The committee adjourned.)