Proceedings of the Standing Committee on
Rules, Procedures and the Rights of Parliament
Issue 12 - Evidence - March 27, 2018
OTTAWA, Tuesday, March 27, 2018
The Standing Committee on Rules, Procedures and the Rights of Parliament met this day at 9:34 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 Leo Housakos (Chair) in the chair.
The Chair: Good morning. I welcome colleagues and members of the general public who are following the proceedings of this committee today. I will start off by asking my colleagues to introduce themselves.
Senator Gold: Marc Gold from Quebec.
Senator Sinclair: Murray Sinclair, Manitoba.
Senator Marwah: Sarabjit Marwah, Ontario.
Senator Greene: Stephen Greene, Nova Scotia.
Senator Woo: Good morning. Yuen Pau Woo, British Columbia.
Senator Joyal: Serge Joyal from Quebec.
Senator Maltais: Ghislain Maltais from Quebec.
Senator Wells: David Wells from Newfoundland and Labrador.
Senator Seidman: Judith Seidman from Montreal, Quebec.
The Chair: My name is Leo Housakos and I am the chair of the committee. I am from Montreal, Quebec.
We’re here today to continue the committee’s work on parliamentary privilege. Colleagues, as you are aware, in June 2015, in the last session of the Parliament, this committee tabled a report entitled A Matter of Privilege: A Discussion Paper on Canadian Parliamentary Privilege in the 21st Century, a document that will serve in doing our study going forward.
Our committee has agreed to do this work. Parliamentary privilege, as we all know, is an essential component of our parliamentary process. Today I wish to welcome to our committee our first official witness on this study.
Let me introduce Maxime St-Hilaire. He has been a professor in the Faculty of Law at the Université de Sherbrooke since 2010. He was a researcher at Berlin’s Centre Marc Bloch and at the Centre de recherche en éthique at the University of Montreal, where he also lectured on comparative constitutional law. Mr. St-Hilaire is a member of the advisory committee of the Institute of Parliamentary and Political Law.
Mr. St-Hilaire, thank you for accepting our invitation. I now ask you to make your opening remarks.
Maxime St-Hilaire, Professor, Université de Sherbrooke, as an individual: Thank you. It is truly an honour to be invited at the beginning of the study on parliamentary privilege. I read the latest version of your document and thought it was very well done. It is all the more interesting for me to contribute to your consultations on a new version of this extensive work on the critical issue of parliamentary privilege. I would like to commend the quality of the committee’s work on this issue and the initiative as well.
I would like to talk to you about my angle of approach and I want to take advantage of my presentation to talk about parliamentary privilege in a comprehensive and contextual way rather than going into detail. My goal is to present current issues to help update and modernize parliamentary privilege to ensure that this institution meets the current needs. I would like to talk about solutions that have been recognized in Canadian law so far, compared to what is being done abroad, and what I consider to be global trends and world standards, meaning the best practices in the area.
First, I will briefly review what parliamentary privilege is and therefore its true purpose and goal so that we have a clear concept to agree on. We often hear circular arguments; autonomy is a reason for privilege. It’s a tautology; it’s begging the question. Why this degree of autonomy? What is its purpose? What are the current issues? I would like to look at Canadian law from a comparative perspective. In terms of the nature of parliamentary privilege, I would like to stress that it is a legal institution, meaning that it does not exist outside the law. We used to hear that often and, fortunately, we hear it less and less.
It is truly a legal status of parliamentarians as individuals and as a group. It provides for powers, immunities and a degree of inviolability that override common rights. I stress the legal dimension of parliamentary privilege. It is not something highly political that opposes the legal. The law creates a special status, in the same way that this right creates a special status for the executive. So it’s the status of the government with the Royal Prerogative, in the same way that the judiciary enjoys a special status in terms of achieving the principle of independence of the judiciary. Similarly, it is a strictly legal institution. So, in terms of codification, it allows for some nuance right away. Only formal sources of law can legally codify parliamentary privilege. Therefore, parliamentarians, as individuals or as groups, outside Parliament, cannot do so. Parliamentarians cannot define their own rights; only formal sources of law, constitutional law, ordinary legislation, and case law can define parliamentary privilege as such, as a legal institution.
Initially, when this institution emerged in England, its purpose was to protect parliamentarians against the executive and the judiciary, the courts, at a time when the courts did not enjoy the guarantees of independence as they do now. There was a time when the courts were much more dependent on the executive. Parliamentarians were protected from the executive, directly and indirectly, that is to say, by the courts, which, it could reasonably be feared, were more or less controlled by the executive. At that time, in addition to the courts not being so independent, the executive was separate from the legislative branch. It was completely different from today. That was in the 17th century, well before the advent of responsible government and the parliamentary system. It is important to never lose sight of the context out of which parliamentary privilege emerged. Protecting parliamentarians against whom and under what conditions? Those conditions have changed, that’s why I provide this reminder.
As the Venice Commission — an independent international advisory body of experts, a think tank on best practices in constitutional law — has noted, the current situation invites us to rethink parliamentary privilege. The establishment and operation of the parliamentary system, which calls into question the distinction between the executive and the legislative branches, and which ultimately sees the executive merging, especially in two-party systems with a parliamentary majority, weakens the interest in protecting the parliamentary majority against the executive since it is ultimately, in practice, the same group.
Party discipline, and therefore the creation of disciplined parties, which has contributed to the consolidation of the parliamentary system, is also a game changer. In this sense, the particular interest of parliamentary privilege, at the present time, may be to protect the parliamentary minority from the parliamentary majority, meaning that the threat to the legislative branch is no longer the executive being separate from the legislative. It’s actually about protecting the parliamentary minority from the majority. The current need to protect parliamentarians is expressed much more in those terms. The risk is oppressing the political minority. It may therefore be a priority, as the Venice Commission has noted, to consider the need for special protection or for adapting parliamentary privilege to this special need to protect the political minority.
Another noteworthy new development is the independence and autonomy of the judiciary, which is nothing like it was in the 17th century, for example. This makes the courts much less of a threat for parliamentarians than it may have been at one time. Parliamentarians are therefore no longer threatened by the justice system in the same way they may have been at a time when justice was highly dependent on an independent executive and separate from the legislative power.
The Venice Commission mentions the paradox of parliamentary immunity, which can serve to consolidate or to undermine democracy, if this institution is not in tune with the evolution of modern representative democracy and the current conditions of the rule of law.
So I think I have already covered the current issues by comparing the original context from which parliamentary privilege emerged with the current situation. We see that the issues are particularly related to protecting the parliamentary minority. This also concerns the discussion on the powers to discipline members of Parliament. In its study on parliamentary immunities, which is the European term for parliamentary privilege, the Venice Commission did not go into this issue of member discipline, but said that it is a topic that deserves to be explored further. And if memory serves, that issue is addressed in the document entitled A Matter of Privilege. I clearly remember reading the committee’s concerns about the issue.
From a comparative perspective, the current issues I have just indicated explain why, in my opinion, we are seeing a trend around the world towards the relative narrowing of parliamentary privilege. The trend is not to broaden, but rather to narrow parliamentary privilege and immunity, as we have known them historically. We can see this in many countries. The Venice Commission has also observed it.
In many countries, the constitutional or supreme court controls the organic legislation and the internal regulations of the parliamentary assemblies. So, this is a significant part of the litigation in several constitutional courts. The Constitutional Council of France is also responsible for overseeing the rules of the parliamentary assemblies.
For Hans Kelsen, one of the leading thinkers of the European constitutional justice system, constitutional justice was never supposed to take the form of a substantive, material oversight of that legislation, but a purely formal oversight, and the constitutional court was just supposed to ensure that the legislation has been tailored to the applicable procedure. This is all to show you to what extent Canadian law on these issues is rather an exception in preparing the ground compared to world standards. After all, we inherited it from British law, which has no tradition of overarching or constitutional legislation.
So, in many countries, parliamentary privilege, parliamentary immunities, are subject to a supreme law and to constitutional oversight, and, furthermore, parliamentary privilege is subject to ordinary law. It is up to the parliament to provide for parliamentary immunities. We also understand that, in a well-established parliamentary system, there is no need to protect the parliament from itself. So, from the beginning, it has been about protecting parliamentarians from an executive that could pose threats, but there was never any question of protecting parliamentarians from themselves.
Historically, therefore, parliament has always been able to define, provide and limit the immunities, the special powers and the inviolability of parliamentarians.
In Canada, because of the Supreme Court case law, because of some of the choices that were made, not unanimously — they were majority decisions, they were not unanimous — we went, paradoxically enough, against the current of what is done around the world. The preamble of our constitutional legislation refers to a constitution similar to that of the United Kingdom. But they have no constitutional legislation as we know it — there is no written constitution. On this curious basis, the Supreme Court has decided to remove parliamentary privilege from the control of the constitutional law. It is quite exceptional. Not much can be done; it is a de facto legal situation. Without a constitutional amendment, it would be very difficult to revisit. In terms of global trends, it is really quite outrageous to see parliamentary privilege slip out of the control of the supreme law. Normally, a good deal of constitutional justice is about ensuring the quality of internal democracy and the respect for parliamentary procedure.
Here is another somewhat worrying consideration. That issue was always the responsibility of Parliament. For example, in section 18 of the Constitution Act, 1867, which was amended in 1875 to broaden this jurisdiction, it is clear that it was Parliament, meaning federal legislation, that had to act in this area, under certain conditions, with a certain ceiling. It was up to the federal legislator to provide parliamentary privilege for both houses of the Parliament of Canada. The Privy Council recognized early on that, by virtue of their jurisdiction over their own constitutions, provincial legislatures could legislate the privilege of their assemblies.
The Supreme Court case law, with its test of necessity, has, in practice, removed the power from Parliament. So, after having removed parliamentary privilege from the supreme law, in practice, the Supreme Court has also removed parliamentary privilege from the powers of Parliament. The Supreme Court has substituted its own test of necessity. It tells us that there are small differences between what the court has said about provincial and federal parliamentary privileges. However, with respect to what is of particular interest to us here, parliamentary privilege at federal level, the court has said that the ceiling in section 18 of the Constitution Act, 1867, can be waived. That section says that we cannot go beyond what British law recognizes when legislating parliamentary privilege. The Supreme Court has said that the determining factor is necessity. So we can legislate, even beyond the ceiling, if we can demonstrate necessity. However, the Supreme Court will ultimately decide. The decision is no longer with the constitutional law or the ordinary legislator. According to the Supreme Court, that court will define the scope of parliamentary privilege very broadly.
Section 18 attributes powers. It says that the federal Parliament can legislate on the matter. However, section 18 has been given a substantial interpretation, whereby there is no longer any power to legislate. We have constitutionalized what is supposed to be the substance of the parliamentary privileges recognized by section 18. That is an entirely different reading of the provision.
I believe the challenge is significant if Canada is to address the current threats to modern democracy. We do not want to create a political class that is above the law. Nor do we want a democracy in which the majority — and I speak mostly of the House of Commons, which has to have confidence in the government — can too easily oppress the minority. I also think that it might be urgent to revive the idea that Parliament must be competent to define and regulate parliamentary privileges.
I will stop here. That was the essence of what I had to say. Thank you.
Senator Gold: Thank you, Mr. St-Hilaire. Your presentation was fascinating. You have already given us a lot to think about.
I would like to begin with your basic point that parliamentary privilege must be conceived of as a “legal creation,” and continue with your last recommendation, to restore our power, as parliamentarians, to legislate on this issue.
If there is an issue on the content of privileges, given the case law — we can talk about freedom of expression, if we really want to, but our previous report contains a whole list — there is at the same time the conflict-resolution process or the issues that may arise in Parliament, either here or in the other place. In a previous meeting, several of our colleagues emphasized the importance of legislating on the internal process within Parliament to ensure that the Supreme Court would not be obliged to exercise some sort of judicial reserve over our actions. But it will demonstrate that we take fundamental justice seriously, or perhaps the constitutional standards that must be met when we are exercising our power, as parliamentarians, against one of our members or another entity.
Can you comment on the importance of this aspect and give us some recommendations on how to ensure that our internal processes meet the expectations of Canadians and the Canadian Charter?
Mr. St-Hilaire: I think I can do so to a certain extent. Legally, it is not because the Supreme Court has said that, by virtue of their privilege, parliamentarians may, as they fulfill their duties, largely escape from the Canadian Charter of Rights and Freedoms, for example. They cannot decide to set their own limits by themselves. In this exercise, I think that is how we have to see it. Besides passing acts, when parliamentarians interpret their privilege themselves or adopt internal regulations, they are exercising their privilege. As they exercise their privilege, nothing prevents parliamentarians from limiting themselves in a way that respects rights and freedoms, or their underlying values, even if that means adapting them. I am especially thinking about procedural guarantees. In the Canadian Charter, there are a huge number of guarantees that apply to the accused. That is not the issue in a disciplinary procedure, but we can draw inspiration from the legal guarantees and the recognized principles of fundamental justice, under section 7, to ensure increased procedural fairness, for example.
Another question that arises is about third-party rights and freedoms, for outsiders, those who are not members of Parliament. As a result of the New Brunswick Broadcasting decision, Parliament is not bound by the obligation to respect the rights and freedoms of those who are not members of Parliament. That was very recently confirmed by the Court of Appeal of Quebec in the Singh case. However, in the Vaid decision, a short passage indicates that the court can always verify whether the exercise of parliamentary privilege and a claim of privilege may not have undue effects on the rights of third parties. It is as if the court had reserved the right, on an ad hoc basis, to revisit the principle in New Brunswick Broadcasting.
It is important to keep that point in mind. Even in constitutional law, there is no absolute guarantee that exercising parliamentary privilege — when non-members of Parliament are concerned, anyway — will circumvent the Charter. As there is a risk that that is not the case, it would be preferable to respect Parliament’s powers of constraint, such as summoning a witness to appear — understanding that those decisions are rarely enforced. Parliamentary assemblies in Canada very rarely exercise their constraining powers in cases where witnesses refuse to appear.
In decision-making and executive procedures, it would be good to make sure that rights and freedoms are respected. Nothing is preventing parliamentarians from doing that. This is an issue that the Venice Commission has emphasized. In other countries, rights and freedoms clearly apply to the exercise of privilege.
Senator Sinclair: I was interested in your comments, particularly in relation to the principle of independence of the Senate. I wonder if you might talk about how the issue of parliamentary privilege enhances or might limit the independence of the Senate as an institution and the independence of senators in their work; do you have some comments about that?
Mr. St-Hilaire: I’m just not sure I caught the question correctly. May I ask you to repeat?
Senator Sinclair: In the Duffy decision a number of comments were made by the trial judge in which he talked about the role of the Prime Minister’s Office in giving direction about certain things that the Prime Minister wanted. And the trial judge talked about the impact that those instructions had upon behaviour within the Senate. So my question is if there are instructions in what you called a “politically partisan environment” that might go to limiting or interfering with the functions of a senator, that might be an issue of privilege; did I understand you correctly?
Mr. St-Hilaire: Actually, what I was talking about earlier, the limits on protecting the privilege of the parliamentary majority, applies less to the Senate. I hope I have stressed the increased importance at the moment of protecting the parliamentary minority. That applies mainly in the first chamber, where the idea of ministerial responsibility comes into play.
As for the Senate, the classic protection provided by parliamentary privilege continues to play an important role. It especially affects the parliamentary majority, where the one formerly protected becomes the new threat. In the Senate, we see the current trend to de-politicize the parties, given the increased role of independent senators.
First of all, the Senate does not have to demonstrate its confidence in the government. So that confirms the role of privilege, even today, in protecting the independence of the Senate. In that situation, senators are in the same position as the parliamentary minority in the House of Commons, meaning that they still benefit from the classic protection. Those previously protected become a threat when the parliamentary majority in the house gives its confidence to the executive and blends with it. That is not the case with any group of senators.
I do not know whether I have fully understood and answered your question, but in classic terms, parliamentary privilege still has greater importance in protecting the independence of the Senate than in protecting the parliamentary majority in the House of Commons.
Senator Maltais: Welcome, Mr. St-Hilaire. I listened to you carefully, because I sat for a long time in another chamber before coming here. In one way or another, the Supreme Court is taking away the sovereignty of Parliament. That was not in the Constitution. It was not the objective of constitutional experts at that time. In the 1870s, Parliament gave legislative assemblies the power to legislate matters of parliamentary immunity, because, at the time, it was much more important than today.
Over the years, the provinces have passed legislation on the protection of parliamentary immunity, in the interests of their citizens. That changed with the Constitution Act, 1982, which was, after all, an improved, repatriated version of the Constitution. I am not saying that we must take precedence over the courts. But the sovereignty of a democratic Parliament, especially in the Westminster model, must be the guardian of its own democracy through the election of each of its members. The judicial branch is not the guardian of democracy as we understand it today. But it sets the pass mark for the legislation adopted by Parliament.
One question about the extent of parliamentary privilege particularly interests me. In Quebec, parliamentary immunity for parliamentarians doing their job is located inside the National Assembly and its committees. Beyond that, there is none. Once you are in the corridor or in the street, parliamentary immunity no longer exists. Is it the same here in the House of Commons and the Senate?
Mr. St-Hilaire: Actually, scholarly debates on those issues are currently going on. Following arrests and searches of material lent to members by the National Assembly, we have seen, in Le Devoir, for example, that constitutionals expert do not agree. Patrick Taillon and myself had different opinions as to whether or not parliamentary privilege exists.
The working conditions of parliamentarians have changed. Beforehand, it was easier to limit the scope of privilege to the parliamentary precinct, because the working conditions of parliamentarians were not the same. The means of communication and transmission were not the same. Geographically, the work of parliamentarians is a little broader now. That raises important questions.
Senator Maltais: In the specific case you are talking about, the material was seized outside the National Assembly. That supports my opinion that immunity stops outside the National Assembly and its committees inside Parliament. Outside Parliament, parliamentarians are subject to the law like everyone else.
Mr. St-Hilaire: The highest court in Great Britain has confirmed that parliamentary privilege exists outside Parliament in certain respects. There are personal immunities, conditions under which parliamentarians cannot be forced to testify. You may say that this is because we want to ensure that they can do their jobs.
It all remains anchored in the chamber, but, for searches that may take place outside the parliamentary premises, to my knowledge, there is no parliamentary immunity from prosecution other than freedom of speech. The only parliamentary immunity from prosecution is the freedom to be able to speak freely in the chamber. Where Canadian law sets itself apart favourably is that parliamentary immunity is quite restricted in Canada. With that exception, it is never criminal. There is no immunity from prosecution. I believe that it is not because material may have been paid for with parliamentary funds that there would be immunity against searches, lawful arrests in generally lawful conditions, warrants, reasonable cause, and so on. But if it is part of a lawful criminal investigation, there is no immunity from prosecution. So, a general immunity from searches outside the chamber, even on parliamentary premises, cannot be necessary to ensure the proper functioning of Parliament, to use the terms of the test in Vaid. There is no immunity from prosecution. The only thing is that, before a search is made on parliamentary premises, the permission of the speaker of the chamber is required, but there is no immunity from prosecution beyond the immunity that applies to the words spoken by parliamentarians in the chamber.
In my opinion, many experts in the media have asked the wrong question. Many experts have said that the question to ask with the test in the Vaid decision is whether the material is necessary. No, that is not the question to ask. It is more abstract and more general. The question to ask about the test in Vaid is this: generally speaking, is it necessary for parliamentarians’ work for them to have immunity against searches, including outside the premises? A telephone might appear necessary. A portable device might appear necessary. The answer to each question may be different. But, even if you think that the telephone or the device seems necessary for members’ work, ask the same person: “do you believe that it is necessary for their parliamentary work for them to be immune from searches?” The person may perhaps say no. This is not playing with words. The questions, and the issues, are not the same.
Senator Maltais: What you are saying is totally true. Protection outside Parliament, extra privilege does not apply outside Parliament. That even includes constituency offices, which are not immune from legal action.
Mr. St-Hilaire: The objection that people could make to that is perhaps the test of necessity. Since the Supreme Court replaced legislation with the test of necessity, someone will always say: let us wait for the question to be asked at the Supreme Court and for the Supreme Court to answer the question about necessity. It is always possible to say: let’s not be too categorical, let’s be careful. We do not have the answer, but I do feel that you have to ask the question in the right way and, in my opinion, it is unlikely that a question like that can be answered in the affirmative.
Senator Maltais: I would like a clear answer. Parliamentary immunity applies to words spoken in the chamber and in committees like this one. I have to understand that, outside the chamber and the committee rooms, in the corridors or on the street, parliamentary immunity no longer applies. Is my understanding correct?
Mr. St-Hilaire: To my knowledge, the freedom to speak, the absolute immunity of parliamentarians to speak is, as we currently understand it, limited to remarks made in the chamber.
Senator Maltais: Thank you very much, Mr. St-Hilaire.
Senator Ringuette: Thank you very much, Mr. St-Hilaire. You have told us about various options for parliamentarians. Correct me if I am not clear, but you seem to be saying that the major challenge is the urgency for current Canadian parliamentarians to define parliamentary privilege in a modern context, and for senators to apply the necessity principle on ourselves as we develop our code. Do I understand correctly?
Mr. St-Hilaire: Yes, I would say so. The necessity principle in the Supreme Court case law may seem to broaden the scope of privilege a little too much, or have the potential to do so. However, and here is the paradox, around the world, the necessity principle is rather used to justify restricting parliamentary privilege in order to better respond to the current situation. This, for example, is more or less the spirit of the work of the Venice Commission, which has said that legislators should make sure that they do not give themselves parliamentary privilege that includes power, immunity and inviolability beyond what is necessary. It is a question of taking ownership of the necessity principle, in the more global sense of the term, in terms of parliamentary immunity, in order to make sure that one does not go beyond what is necessary, while remaining conscious of the many changes that have taken place since the 17th century. That is to say that the relationships between the legislative, executive and judiciary branches have changed and we have to adapt as a result. The basic principle, to protect parliamentarians against the other powers, remains relevant. The challenge is to adapt that principle to the current conditions of a modern parliamentary democracy, with disciplined parties and an independent judiciary.
Senator Ringuette: I understand exactly what you are saying. The Senate has a code of ethics and disciplinary measures. Should we also revisit the code and the process in light of the principle of necessity?
Mr. St-Hilaire: I think so, especially with regard to the first chamber, where party discipline is much stronger. I feel that applying the principle of necessity can help to reduce the somewhat collective aspect in order to put the emphasis back on protecting the individual freedom of expression of members of Parliament. This equates parliamentary privilege with the protection of the political minority. I think here that the principle of necessity can lead to parliamentary privilege being tailored to these new stakes: the risk of seeing parliamentary majorities basically using the collective aspect of privilege. This means the powers and the collective freedom, such as the power to pass resolutions with a simple majority, and to revisit the conditions of the collective aspect in order to strengthen the individual aspect, which better protects the political minority. Here, I think that this is what invoking the principle of necessity, in the light of current conditions, is intended to do.
Senator Ringuette: In recent years, in their speeches, some senators have made a link between their parliamentary privilege and their responsibilities. For example, the responsibility to review legislation according to the Constitution for senators, and, indirectly, to meet that responsibility, the privilege of senators to sit on committees. What is your opinion on that link?
Mr. St-Hilaire: I do not know whether the privilege of sitting on committees fits with the legal notion of parliamentary privilege. In my opinion, in law, parliamentary privilege is that quite narrowly defined group of powers, immunities and inviolabilities.
Among their privileges, parliamentary chambers have the power to establish their own procedures and then the conditions under which members are going to sit on committees. In law, that is not privilege. When it exercises parliamentary privilege, the chamber adopts regulations and establishes the right to sit, the conditions under which one can sit on one committee or another.
However, in developing those conditions, the right to sit on a committee, I feel that the concern once more really is to make sure that the political minority is given respect, and to avoid the rules governing the composition of the committees having the effect of crushing or silencing the minority.
Senator Seidman: Thank you very much for your presentation. You now refer again to the parliamentary minority, and I think you talked about the political minority. I’d like to be really clear because you say the risk is to a parliamentary minority; therefore, privilege is critically important. I’d like to be really clear what you mean. What do you mean by that term? How would you define parliamentary minority or political minority? I think I know what you mean, but I would like to be really clear.
Mr. St-Hilaire: The political minority, that is the parliamentary groups that do not hold a clear majority, the independent members, the minority parties whose role can be quite crushed by the majority, but that are also part of the internal mechanisms, the disciplinary measures, the financial control, and so on, that minority is exposed to risk. There is the risk of the collective power being used to adopt and apply procedures. This is because parliamentary privilege is also the privilege of the chamber to have its speaker make the final decision as to how the regulations shall be applied, sometimes in a committee. There is a risk of the collective and institutional power being used to make regulations of a political nature and to muzzle the collective or individual rights of the political minority. I know that we are in Canada and the word minority refers to something else, but I am not talking about the cultural, social or sexual minority. I am talking about the political minority, as Hans Kelsen and the European doctrine understand it.
Senator Seidman: That’s really important for the record. Thank you.
Mr. St-Hilaire: Thank you for giving me the opportunity to provide the clarification.
The Chair: Do you agree that, in order to amend Parliament’s rules or procedures, a consensus is needed? It is not done by a decision of the majority. Usually, tradition dictates, particularly in the Senate, the non-elected Chamber, that, when changes are made to the rules, for example, it is done by consensus, for the reasons that you are explaining to us. Did I understand correctly?
Mr. St-Hilaire: Exactly. It is a standard, in my opinion. The same logic applies in the difference between adopting an act and adopting a constitutional act. Constitutional acts represent principles. They are the rules of the game, the underlying principles that require a higher level of consent. That is the logic. Actually, when a parliamentary chamber adopts its own regulations of its own volition, it needs a perfect consensus, ideally a special majority. It is clearly preferable to have the rules of the game reflecting more than a simple, basic majority.
The Chair: Earlier, you gave the impression that there is a slight difference between privilege in the House of Commons and in the Senate. I would like to confirm that. Clearly, the House of Commons is an elected chamber and privilege exists to protect the minority, as in all the other parliaments. In the Senate, we also have a unique situation in that the Prime Minister has a lot of power over the Senate because it is he who appoints senators. Can you share your perspective with us, because it really is a unique chamber in which, in our British system, the Prime Minister has all the power? He has the ability to appoint senators to a majority. He can achieve a majority in the Senate very quickly. Can you lay out the challenges that arise and how we can ensure a balance?
Mr. St-Hilaire: Although the Prime Minister has the power to appoint, appointments last for so long that it is not equivalent. Senators remain more independent than the members of the majority party in Parliament. Even though senators are appointed by the executive branch, they stay for much longer than the Parliament that was sitting when they were appointed. I do not believe that the power of appointment is sufficient to put senators into the same category, a category that requires a little less protection and that sees them as a potential threat, as the majority of members of the House of Commons. I do not believe that the power of appointment alone places them in the same situation of dependence on the executive. This is a little outside of the framework of our discussion, but if you are asking my opinion about the way in which Senate appointments are made, that is something else. It is a huge subject. The ideal would be that the Senate should move towards being a properly federative chamber. I have a lot of admiration for the German model, but that is another subject.
Senator Gold: I would like to follow up on the question that the Chair asked. You rightly mentioned that, when we are dealing with the rules of the game in the Senate, it is important to bear in mind the protection of political minorities to make sure there is no abuse of power. I completely agree. However, when the Chair was talking about consensus, you said that it did not need to be unanimous. It can be a majority. It is not 50 per cent plus one. But it is not necessary for everyone to agree to change the rules of the game in the Senate. Did I understand correctly?
Mr. St-Hilaire: Yes, an absolutely empirical consensus would be the ideal, but making it a requirement can put obstacles in the way. We need to avoid those obstacles. We have to find a balance.
Senator Wells: Thank you, Professor St-Hilaire, for your valuable input.
You may know that there is a move within the Senate by what may be turning out to be the majority to suppress the voice of the minority. We have dealt with it, senators, and we are dealing with it now at the Modernization Committee on which I sit. You mentioned that rules are in place, and I’ll quote, “To protect the minority from the majority to undermine the rights of others.” Which I think is what is happening.
Of course the rules or the rights in the Senate are set by the Senate. Are there some inalienable rights that are part of our system that would protect that minority voice and the limited minority powers? Of course there is not the majority for that minority voice, so are there any inalienable rights that can protect that balance that’s required?
Mr. St-Hilaire: In Canada, things do not work in the same way as in France or in other countries. No rights of parliamentarians could be put in place by the Supreme Court or a constitutional court that might, for example, control the internal regulations of a chamber or the way in which they would be applied by a speaker. Here, it really the privilege of parliamentarians as a group to establish their own rules. Legally, therefore, in my view and in the view of our constitutional law, it exposes the political minority to some risk. Hence the importance of seeing, in the exercise of that power, that the law would recognize that Canadian parliamentarians themselves establish guarantees to protect the political minority. I am able to speak as a constitutionalist comparing major principles and standards from around the world. On the other hand, I am not sufficiently familiar with the details of the internal rules of the Senate to express an opinion. I can speak in general terms and a little in the abstract, as professors do, about the principles I see as appropriate. But I cannot apply them here to the specific provisions in the Rules of the Senate because I am not sufficiently familiar with them to do so responsibly.
Senator Gold: I have a question from a former professor to a “generalist” professor. As you know, we are starting our study into the matter once again, given the changes and the need to modernize our understanding of privilege. Do you have any particular recommendations for our guidance, however specific they may be? Where exactly should we put the emphasis?
Mr. St-Hilaire: I could perhaps answer with a more general suggestion, which would be methodological in nature. Let me give you that one because it corresponds better to the nature of my comments. I would invite you to leave the Commonwealth and look around the world more widely, at the trends and at the work being done, by the Venice Commission, say, or by independent organizations, at the collective work on the issue by independent experts. That actually corresponds to my concept of constitutional law. By that, I mean that I do not feel that constitutional law is the product of a will that is purely political. I feel that it should remain something rational, even though it may appear a little philosophical. That is the nature of reason. We are not bound by what is done elsewhere, but I feel that we have a political, morale and intellectual responsibility to consider the thinking that has been done elsewhere, because there is nothing inherently Canadian in parliamentary thought. There is nothing uniquely Canadian in the need to protect parliamentarians from the executive and judicial branches, as was once done, and, as is done today, to protect the parliamentary minority from the majority. And I feel it would be an error to ignore what is being done elsewhere and not to look at what is being done in different structures.
Personally, I would expand the comparative aspects of the study a little, and perhaps also the historical aspects. That means you would take another look at the emergence of privilege, including how it was once used and to what extent that must be modified today. It is a matter of methodology, rather than simply looking at what is done in the Commonwealth and borrowing things here and there. That criticism may appear a little severe, but I feel that, in Supreme Court case law, there have been some quite mechanical borrowings, simply mimicking what was done in the United Kingdom and adapting it to a completely different framework. In the United Kingdom, there is no supreme legislation. The sovereignty of Parliament was mentioned earlier and it was emphasized. However, it would have been quite shocking for a British Parliament to substitute powers from the Supreme Court for the powers of Parliament in the very definition of parliamentary privilege. So it is a matter of expanding the comparison, but also, when things are borrowed, to make sure that they are tailored to a framework that is ours alone. So there you have a methodological suggestion.
More concretely, I feel that there is a risk. I hear, and we have read in the papers, comments to the effect that “Mr. Chagnon will decide.” It is as if the speaker of the National Assembly had the power to define the rights of parliamentary privilege. He does not have that power. He can interpret it but, as the speaker, he is not a formal source of law. Parliamentary privilege is established by the legislation. Perhaps we have to insist on the nature of parliamentary privilege; I feel that there is also a risk of slippage in the matter of possible legal immunity against searches outside the precinct. I feel that is symptomatic of something troubling. We have to immediately put an end to the tendency of some legislative speakers to have much too broad an interpretation of parliamentary privilege, which would create, as Joseph Maingot said in one of his recent works, policies that would be above the law. That would be fundamental.
For the rest, as for the Canadian Charter of Rights and Freedoms, I have already said how I feel it could be considered. As for codifying it, I have given my comment. As for the disciplinary power of the Senate, I have referred to that in terms of procedural quality and of minority rights.
Basically, I do not have a lot else to say. So I will stick with the methodological suggestion, which is to expand your horizons.
Senator Gold: I have no doubt that our clerks have access to it all, but if you have suggestions, for written sources or for experts, especially in the context of a comparative study, could you send that to our clerk? It would be very useful.
Senator Joyal: Welcome, Mr. St-Hilaire. I would like to go back to the issue of the Charter and to your comments in regard to the position that the Supreme Court has taken in the matter of third party rights. As you know, the Supreme Court wanted to distinguish between parliamentary privilege when it affects the rights of a member of Parliament or a senator, and parliamentary privilege when it has a negative impact on the rights of a third party. The court has been extremely eloquent in advocating a more circumspect approach, in a way, when the court has to delineate, in Justice Binnie’s words —
To delineate the frontier between the rights of a legislative assembly and the protection needed for a third party who is not a parliamentarian.
And, as you know, the two latest decisions are currently under appeal: Chagnon versus the union and Singh, as you have indicated. In my opinion, Singh is extremely important, because it deals with the right to religious freedom for a third party attending a parliamentary committee as a witness. In order to testify, he had to remove his kirpan, because it was seen as a dangerous item. But the Supreme Court has already ruled on the protection of the kirpan in Multani v. Commission scolaire Marguerite-Bourgeoys, seeing it essentially as a religious symbol, not a dangerous object. I do not know whether Singh will be appealed. I would like that because, in my opinion, it would allow the Supreme Court to take one more step in protecting the rights of third parties.
Here is my question: should Parliament not be much more proactive in adopting standards to protect third-party rights and in recognizing the obligations in the Charter, in order to express the principle in a more general way than we have done in the past, and to basically rely on Justice McLachlin’s statement in Harvey, when she said, as you will remember, that one part of the Constitution cannot contradict another part? Since parliamentary privileges are recognized in section 18, neither that section nor the charter can be used to deny the right of parliamentarians to determine for themselves their procedures and their ways of conducting their deliberations. Does the fact that Parliament can adopt its own system of complying with the rights and freedoms in the Charter not allow us, in a way, to protect ourselves from intervention from the courts? Would that not be a way to respond to an ever-greater involvement on the part of the courts when the rights of third parties are affected by the exercise of parliamentary privilege?
Mr. St-Hilaire: There are two avenues. I see two issues. First, knowing whether a case like Singh would not be the opportunity for the court to clarify the link to the principle in the New Brunswick Broadcasting case where the issue was about third-party rights. That was about the media. There was no exception to parliamentary privilege in that respect. So, in paragraph 29.12 of Vaid, some minor room for third-party rights was intended, but it is still very hypothetical. According to Justice Binnie, who wrote the unanimous decision, courts can more closely examine cases in which claiming a privilege has an impact on those who are not members of the assembly involved than when the issues are purely internal. The door was opened to a potential disavowal of what was clearly the principle in New Brunswick Broadcasting. We have to wonder whether that is wishful thinking or whether it can have any effect. I think that a case like Singh might let us test this—
Senator Joyal: I am sorry to interrupt you, but Chagnon is also about third-party rights. It was about security guards; they were not parliamentarians.
Mr. St-Hilaire: Does it involve basic Charter rights?
Senator Joyal: Yes, section 2d, the freedom of association.
Mr. St-Hilaire: Yes, but Chagnon is really about the management of employees. You are right, those two cases may well call for clarification. I tend to feel that Singh would be more of a paradigm, but in fact, in terms of the authority to manage some employees, there is no doubt that managing this category of staff, Quebec’s special constables, is not a necessary part of exercising the mission of Parliament. That is why I see the case as quite easy in comparison to Singh. We still do not know whether or not there will be a risk that courts may protect the rights of third parties by limiting parliamentary privilege.
I would be more in favour of the idea of reactivating legislative authority over parliamentary privilege.
You brought up section 18 of the Constitution Act, 1867, by saying it recognized privileges. But section 18 is really no longer interpreted that way by the Supreme Court. What section 18 says is that the Parliament of Canada has the right to legislate on the matter. I read the submissions in Boulerice; I was almost involved, except that the Federal Court of Appeal rejected my affidavit. When you read the case law, or even the submissions, you can see that the true meaning of section 18 has been neutralized by the Supreme Court case law. This has replaced the idea that Parliament can legislate on the issue and substituted for that power a broad interpretation of the privileges in section 18, as if it recognized those privileges.
Section 18 does not recognize any privileges. It recognizes the power of Parliament to establish privileges up to a certain level. The Supreme Court case law has, to an extent, done away with this reading. It has made the scope and the content of the privileges into a constitutional matter and a matter on which the Supreme Court will have the final word, under a somewhat vague principle of necessity. Personally, I would be in favour of Parliament taking that power back and putting Canada back in tune with what is done around the world. The law can allow and it can also restrict. There is also something extremely paradoxical about it. Even if it was arbitrary because there was no issue of the privilege of provincial legislatures in Vaid, Justice Binnie expressed himself in such a way as to limit the power of provincial legislatures to restrict parliamentary privilege. If the Supreme Court sees it as necessary, and if a province wanted to reduce it, there would still be the risk of a challenge. With federal powers, it is less clear, but Justice Binnie’s reasons give us to understand that it would be possible for a provincial legislature to restrict the scope of some privileges in order to put itself more in tune with what is being done in the world. There would be the risk of a constitutional challenge. It could be argued that a privilege, historically recognized as necessary, was being abolished, but I find that problematic. The starting point is rather to avoid providing too many, not to reduce the number.
Senator Joyal: Not to provide too few. Thank you.
The Chair: If there are no further questions, I must thank Mr. St-Hilaire for his very interesting testimony. We hope that you will remain available for the rest of our study because we will certainly have other questions. Your observations are very useful to us for our study.