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Proceedings of the Standing Committee on
Rules, Procedures and the Rights of Parliament

Issue 14 - Evidence - October 2, 2018


OTTAWA, Tuesday, October 2, 2018

The Standing Committee on Rules, Procedures and the Rights of Parliament met this day at 9:34 a.m., pursuant pursuant to rule 12-7(2)(c), to consider the orders and practices of the Senate and the privileges of Parliament.

Senator Leo Housakos (Chair) in the chair.

[English]

The Chair: Good morning, colleagues. I would like to call the meeting to order.

I welcome the general public that is following the proceedings of Standing Senate Committee of Rules, Procedure and the Rights of Parliament either here in the room or via the web.

I will start from my left by having my colleagues introduce themselves.

[Translation]

Senator Joyal: Senator Serge Joyal from the Kennebec district, Quebec.

[English]

Senator Sinclair: Murray Sinclair, Manitoba.

Senator Marwah: Sabi Marwah, Ontario.

Senator Woo: Senator Woo, British Columbia.

Evan Fox-Decent, Professor, Faculty of Law, McGill University, as an individual: Evan Fox-Decent, McGill University.

Senator Wells: David Wells, Newfoundland and Labrador.

[Translation]

Senator Maltais: Senator Maltais, Quebec.

Senator Seidman: Judith Seidman from Montreal, Quebec

[English]

Senator Batters: Denise Batters, Saskatchewan.

[Translation]

The Chair: I’m Senator Housakos from Montreal.

[English]

We are here to continue this committee’s work on parliamentary privilege. 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 that fine work, and this our fifth meeting on the study in this session of Parliament. Parliamentary privilege, as you know, colleagues, is an essential component of our parliamentary democracy. It’s imperative to make sure we can do our work effectively and efficiently without any impediments.

Today it’s a pleasure to welcome our witness, Professor Evan Fox-Decent. Mr. Fox-Decent is a full professor at McGill University Faculty of Law where he teaches and publishes in legal theory, political theory, private law, public law and international law. He is currently working on an SSHRC-supported project, the Cosmopolitan Justice of International Law. In 2007, he published a commentary following the release of the Supreme Court of Canada decision in Canada (House of Commons) v. Vaid, entitled Parliamentary Privilege, Rule of Law and the Charter after the Vaid Case.

In 2012, Professor Fox-Decent’s book, Sovereignty’s Promise: The State as a Fiduciary, was short listed by the Canadian Political Science Association for its tenth C.B. Macpherson Prize for best book published in English or French related to public theory.

Thank you, professor, for accepting our invitation. We will allow for some time for you to make a presentation and then we will open the floor to questions.

Mr. Fox-Decent: Thank you very much to all of you for the generous invitation. It is a great pleasure to be here today. I was advised that I should prepare 10 or 15 minutes of opening remarks. I have had the benefit of reading your excellent report from June 2015. In large measure, the opening comments that I have are a response to what I have read in the report that you prepared a few years ago.

I would like to talk in very general terms about the political framework we might think about when we think about parliamentary privilege, a legal framework that might be helpful for us to think about when we think of parliamentary privilege, and then how we can come to understand what is going on within these frameworks, with Parliament being our premiere federal law-giving institution.

I will try to relate some of these observations to the very well-known test of necessity for parliamentary privilege. I will also have a few brief comments to make with respect to what institutional implications the more general comments I will make in the beginning might have and what institutions we might look at to help inform us about the shape parliamentary privilege might take as this committee and others in Parliament try to grapple with the question of whether to codify the rules and norms of privilege or whether to leave them uncodified.

On the political framework of parliamentary privilege, to my mind, as I step back from the trees and try to look at the forest, it has often struck me that the very description of what we’re talking about is somewhat unfortunate. When you think of a privilege you think of something that somebody has that perhaps they didn’t deserve or perhaps they don’t have a right to. My suspicion is that if lay people were asked about parliamentary privileges and immunities they might think, regrettably, that privileges and immunities are kind of get out of jail free cards for parliamentarians and people associated with our federal Parliament.

In terms of the politics of parliamentary privilege, a better way to think about it, or try to present it and understand it, is really as an idea of parliamentary self-government. To me, that is what it’s fundamentally about. To what extent does Parliament have the authority to govern its own affairs and to govern affairs that will touch on third parties, insofar as decisions made by parliamentary representatives are necessary for Parliament to fulfil its constitutional role of legislation and deliberation.

With respect to the legal framework, we might think of when we try to think of how we are supposed to understand the role of Parliament as a legal actor, responsible for the governance of itself in a way that will sometimes touch others, coming from McGill you perhaps won’t be surprised to hear me suggest that I think a legal framework that can be very helpful in this regard is the framework of legal pluralism. Legal pluralism is simply the idea that courts alone are not the only institutions that ought to be recognized to have authority to interpret and apply the law to people within their care or within their jurisdiction.

In administrative law, which is a course that I teach at McGill, we know that administrative agencies typically have statutory authority to interpret and apply law within their domains. Within First Nations and Indigenous communities, more and more are claiming an entitlement to self-government and autonomy, to be able to give laws to their own people and adjudicate disputes among their own people. These are examples of legal pluralism where we commonly look out in the world beyond the formalized somewhat ceremonial contours of our judicial system and see public entities giving laws, adjudicating disputes, or, in other words, involved in the practice of governance. At least this is one of the frameworks we can use to help us understand, from a blue-sky perspective or a big-picture perspective, what it is we are thinking about or talking about when we talk about Parliament governing its own affairs, this project of parliamentary self-government.

Where do we go from that starting point? One place to go is to try to take seriously the very idea that Parliament is a public self-governing entity. Like all entities engaged in public governance it has two aspects. Two aspects to public governance flow from the simple idea that because the governance is public it’s done on behalf of and for the sake of someone else in Canada, our citizens and others who live within our country. These two aspects are simply the twin ideas of autonomy, on the one hand, and responsibility on the other.

Autonomy is captured by the idea of the test of necessity, a test that has been set forth in various decisions on parliamentary privilege that in rough measure basically say that parliamentary privilege will extend as far as is necessary for Parliament to engage in its legislative and deliberative functions and to do so in a manner that can be expressed as doing so with dignity and efficiency.

This brings us to the other side of public governance, which is responsibility. It is not just that Parliament has autonomy to do what it likes. Whether or not parliamentarians, the Speaker of the house, for example, can be called on the carpet before a court, one of the things that I found most ennobling and praiseworthy in my review of the report is the very clear, deliberate and conscious desire of parliamentarians to understand that the institutions of Parliament exist now in the 21st century with the Charter of Rights and Freedoms in a time in which human rights are celebrated, if not revered. Following from that, it seems throughout this report there is a very deliberate desire on the part of parliamentarians to ensure, whatever privileges they have to make decisions with respect to themselves or with respect to third parties, that those decisions be seen to take place within a transparent framework, within a framework where some accountability is possible and within a framework that pays attention to the Charter, to human rights and to other fundamental values of Canadian society.

This brings me to the final comment I would like to make or suggestion I might have before we open the floor for discussion. That has to do with some of the institutional implications of viewing parliamentary privilege as a project of parliamentary self-government, which has these two aspects of autonomy, on the one hand, and responsibility on the other. This is the idea that in this case, like in so many with human endeavours generally, we don’t have to be reinventing the wheel. We can look around and see many other examples of public institutions engaged in self-government for very good reasons; the good reasons being typically that those involved in the governance of these institutions tend to know their membership the best, tend to know the problems that they face the best, and tend to be best placed to deal with those issues at least at first instance.

I am thinking of two kinds of institutions. The first would be professions. All professions are self regulating. We can learn a lot from the structure of self-regulating professions when we turn to reflect on how might Parliament itself be self regulating. Of course, beyond the professions, the second institution that could provide lessons is the judiciary. How does the judiciary self regulate? The judiciary in a sense is the ultimate institution at the apex of legal interpretation in Canada. As such, it is the only institution in a general sense that is responsible itself for the limits of its own jurisdiction.

Of course there is something like that going on with parliamentary privilege as well. Once we get to the point where the existence for privilege is recognized, the doctrine of the court today is that any exercise of that privilege resides with Parliament. What happens if we have a situation where the party that someone has a complaint against is, say, the Speaker of the house and it’s the Speaker of the house that also has to then act as a judge of that complaint? There I think we have a real potential tension between parliamentary privilege and the rule of law as we commonly understand it because we don’t like to see, for obvious reasons of conflict, people who are involved in a dispute being the people to adjudicate the dispute. How might we resolve something like this?

Again the judicial branch has pointers that are helpful in this respect in that there is a Canadian Judicial Council that in some cases a matter would be referred to. There are processes of recusal that can help to inform certain contexts. Otherwise, there are codes of ethics and norms already well established both within the self-regulating professions and with respect to the judiciary that I think Parliament, the Senate and the house could look at fruitfully for pointers in terms of what to do or what norms to include if in fact the decision is made that codification is the way to go forward with respect to parliamentary privilege.

I look forward to your questions, and I will be quiet for now.

Senator Joyal: Welcome, Professor Fox-Decent. It is a pleasure to listen to you this morning. I don’t want to put you on the hot seat, but I cannot resist asking you, in the case of Chagnon v. Security Guard Union involving the dispute that arose in the legislative assembly in Quebec, where you would think the definition of privilege claimed by the Speaker meets the requirement that the court has established in Vaid when the legislature has determined the rights of the third party involved.

Mr. Fox-Decent: For my benefit and the benefit of everyone else, could you give us the background to the case?

Senator Joyal: Yes, of course, very quickly. Following an allegation of misconduct by one of the security guards of the legislative assembly, the Speaker first sent them notice that he intended to trigger the disciplinary process that was included in the labour agreement the government and the legislature signed with the union. He had second thoughts and he, rather, decided to claim the privilege. In other words, he opted not to be bound by the sections of the collective agreement that provided for a grievance procedure and fired them outright on the basis of the claim of privilege.

In other words, a group of third parties — that is the security guards who were ruled by the legislature act and the collective agreement — saw their rights totally put aside on a claim of privilege by the Speaker of the legislature.

As you know, the case went from the Court of Appeal to the Supreme Court, so we expect a decision from the court any day now. It is essentially the framework of your presentation that when there is a claim of privilege and third party rights are involved, the first decision for the court is to establish that a claim of privilege exists and then to defer to the authority of Parliament if the conclusion is that the privilege exists.

How do you reconcile that with your two principles of autonomy and responsibility?

Mr. Fox-Decent: You were kind enough to point out that the court will be releasing its judgment on Friday, so I am a bit apprehensive to try to anticipate what they will say.

Senator Joyal: You don’t want to.

Mr. Fox-Decent: Whenever I guess on these matters I am almost always incorrect. If I were to look at the doctrine as it exists now, which has the two steps of whether the privilege exists and then it’s a matter in this case for the Speaker of the Quebec legislative assembly to exercise it, it’s a tall order for the Speaker to convince the court that privilege exists in this case.

The reason I say that is that I think it would be one thing for the Speaker to argue with respect to the Speaker’s executive assistant or somebody hired into a position of trust. There we might imagine that person plays a role necessary to the constitutional role of a legislature: providing advice, procuring documents and organizing an agenda on a day-to-day basis. There I think you could see an argument from necessity. The Speaker has to have at his or her disposal the authority to hire or fire almost at will, if you will, the person who will be closest to him or her organizing daily affairs.

That is a long way from a security guard. We can get a sense of this by simply recognizing whether or not it was one security guard or a different person acting as a security guard. It’s not really clear that it would make any difference to the way in which the legislature would function. Not to disrespect the important role of security guards in any way, it’s not clear that we would think the Speaker has to have his or her fingers on the hiring and firing decisions of security guards in the same way that the Speaker might have to have that kind of prerogative with respect to an executive assistant.

In Vaid we found a similar discussion from Justice Binnie. Of course, although most of that case was about parliamentary privilege, everything on privilege was in fact what lawyers refer to as obiter dictum or beside the fact because in the end the Supreme Court simply found that it was a jurisdictional case. Was this a labour case with a human rights dimension, or a human rights case that just happened to take place in the workplace and the court found that it was a labour case with a human rights dimension and so it had been properly referred to arbitration?

My sense is that the court in the Quebec case might think the same thing. One of the principles, again in obiter that came out of Vaid, was that Parliament was not a so-called statute-free zone. Although some privileges and immunities will be granted with respect to statutory requirements, unless those statutory requirements really would interfere with the running of Parliament, or Parliament performing its constitutional function, we got a fairly clear indication from Vaid that ordinary statutes would be allowed to run their course. Parliamentarians would be subject to them as anyone else would be, except for those areas of their conduct where historically it has been viewed as necessary for them to have certain prerogatives, liberties and privileges that non-parliamentarians do not have, such as freedom of speech.

There is a significant distance between freedom of speech on the floor of a legislature, on the one hand, and the ability of a Speaker to dismiss a security guard and just set aside an entire public labour relations regime on the other that does not at least, on its face, seem to directly implicate the constitutional role of the legislature.

Senator Joyal: You outlined very well the link that exists between the Vaid case and the Chagnon case, if we can call it that raised in front of the Supreme Court.

My second question is about the substance of your presentation. The Canadian Parliament finds itself in a situation, as you know and as the Supreme Court outlined in many of its decisions, and famously in the Nadon case in 2014, whereby it has stated quite clearly that we live in a system that works under constitutional supremacy and not parliamentary supremacy per se.

Since we defer essentially to Westminster on that ground, and since our privileges are rooted in the same legal background as the one at Westminster, according to section 18 of the Constitution, I am tempted personally to favour more a third or, I should say, a middle ground between “Parliament is supreme and can do whatever Parliament feels fit to do” and a codification, on the other hand, that would in fact transfer the adjudication of any claim of privilege in the purview of the courts. In other words, we would judicialize the implementation process of privilege in favour of the court.

What you have outlined is more a middle ground whereby Parliament would recognize the need to protect third party rights, but it would have its own system of “adjudication” that would probably offer the third party the same kind of protection as the principles of fundamental justice that we know quite well and that are enshrined in the code of ethics that governs the conduct of senators.

It seems to me that somewhere between shifting everything and Parliament maintaining its authority there is a middle ground whereby in a claim of privilege that would be the object of a grievance by a third party there would be a process that would offer the same type of protection within the judicial process that could be open to citizens in normal proceedings of the court.

I am tempted to favour that more than being caught in shifting everything to the court. Codification has its merits because it establishes and fixes a clear list of what are the privileges. On the other hand, it doesn’t reflect the evolving needs that we confront now with social media and all kinds of allegations of breach of privilege that didn’t exist 20 years ago.

It seems to be a more flexible way of achieving what you propose as being the two fundamental principles, the autonomy and the responsibility. In one case, we would keep the autonomy. In the other case, we would shift the responsibility to the court by codification. However, in the middle ground, we would have a medium approach that, in my opinion, could satisfy the two principles you have offered.

Would you see that as being the alternative we should be pursuing?

Mr. Fox-Decent: I like the substance of everything you are saying. I would say, though, that I don’t think it is necessarily the case that codification leads to a category-based approach. What strikes me that you’re apprehensive about, senator, is the idea that codification will lead to rigid categories where some decisions will go presumptively to the courts to decide, whereas others will be hived away almost entirely from the courts and left to the Speaker or perhaps another body of Parliament.

Again, this is a place where the professions and the judiciary itself can be instructive in that there may be codification, but there can be codification along the lines we have seen with human rights legislation, where not necessarily everything is spelled out but where we talk about there being certain privileges and other privileges that can be established on analogous grounds, for example, the kind of formulation we see in section 15 of our Charter.

We could imagine open-textured legislation or codification that would nevertheless provide a certain measure of certainty, a certain starting point of inquiry into the scope and nature of a privilege in a given case without necessarily falling into what you quite rightly pointed out would be a trap of rigid categories where some things just get pushed off to the courts right away without the institutions of Parliament having an opportunity to express their views on the matter and others not having that opportunity at all.

My own view is that nothing should go to the courts where there is a matter of dispute with respect to a ruling of the house or the Senate, or a dispute between third parties that have something to do with the house or the Senate, without some institution within the house or the Senate having an opportunity to express its view. Then, generally speaking, if a court challenge is raised and if the matter is an in-house matter, the bar for intervention by the courts should be very high. We got rid of the standard of review of patent unreasonableness as a judicial device, but we still see it in legislation in some places such as British Columbia. I would say that it would be that sort of very deferential approach.

If the question is, say, a member of the house challenging the Speaker who has made a ruling and found the member in contempt, then almost complete autonomy is the right approach. Only a showing of bad faith, improper purposes, corruption or something very severe can penetrate that sort of veil. In the other cases where a third party is involved, again there ought to be within the parliamentary system an opportunity for the party who believes he or she has been wronged to seek redress. Being a country of laws, under the rule of law, generally speaking, there should be in those situations some opportunity to go to the courts.

The courts should always use, as their starting points, the reasons that are offered or could be offered in defence of whatever resolution the parliamentary body reviewing the matter came to, assuming there is such a body in place or the Speaker. It might just be the Speaker in a given case.

Having done that, it falls to the court to come to a determination of whether there is a privilege in play, in which case the court would generally defer. Even if there isn’t a privilege in place, it still may be the case that the parliamentary body, which dealt with the matter at first instance, made a perfectly reasonable and just decision, and the court should be open to that.

I agree with the worry about codification. My own view is the more we can get into a culture of the people closest to the dispute offering reasons for their determinations and then having those reasons taken seriously, whether it’s another body up the ladder within Parliament or the courts outside of Parliament, the better off we will be in terms of accountability and transparency.

Senator Sinclair: I found that discussion a little tricky to follow but I think I figured it out. I want to go back to the paper you wrote following the Vaid decision, if you don’t mind, and just discuss the concept that you raised about the question of looking behind the intention or looking at the intention of those who declare or claim privilege.

I understand your point about malice, corruption or bad intention if there is someone who claims a privilege for that reason. I wonder if you have a comment with regard to the reverse. Do you see a difference between parliamentary privileges claimed by an individual versus parliamentary privilege of the body itself? In other words, could the Senate itself ever be subject to an argument that its actions or a vote that the Senate or a majority of senators takes could be challenged in court because of bad intention, bad faith or corruption?

Mr. Fox-Decent: First, there is clearly a difference. Privilege, historically has always attached to the body and individuals could take advantage of privilege by claiming to be members of the particular body, such as Parliament or the Senate.

What is interesting is that when we talk about collective bodies it’s notoriously difficult to attribute intentions to them. I guess it’s not inconceivable, but it would be very difficult to imagine a malicious intention attaching to Parliament or the Senate. Let me explain why.

The reason I believe it’s very difficult to imagine is that when we attribute intentions to an intention to Parliament or an intention to Senate, we do so through the prism of various canons or rules of interpretation. Among the most important rules of interpretation is the rule that Parliament should always be presumed to do what is equitable.

Even if it seems on the face of the record that Parliament has done something that is picking on a minority, that is not providing adequate compensation to a group that suffered a historical wrong, or for any number of reasons you might think that a Parliament’s action or inaction constitutes an injustice, it is still very difficult to attribute to Parliament a malicious motive in the way that we might attribute to an individual who has taken a payment or has in some way tried to feather their nest by taking advantage of a public position. If we were able to imagine all or a majority of parliamentarians being engaged together in that kind of wholesale rent capture of the system, then we would almost be at the point where we wouldn’t even think of the house as being Parliament anymore or being a legislature.

It is a great question. I am reluctant, as an academic, to say, “No, no, never; it’s impossible,” but it is about as close to that as I could imagine because of the presumptions that we bring to bear when we think of interpreting the acts of Parliament or democratic legislative bodies. Parliament can claim privileges on behalf of its members, and that is often what we see happening.

Senator Sinclair: To go back to your paper and your discussion about the issue of being able to look behind the claim of privilege, that would suggest to me that the claim of privilege should not be considered as an absolute privilege, such as solicitor-client privilege where courts never look behind the claim of solicitor-client privilege once it is raised.

There may be other privileges as well. I am thinking of diplomatic and executive privileges. There are probably dozens of privileges out there that people claim in law.

Do you see a difference between parliamentary privilege in terms of the question of looking behind intention versus the other kinds of privileges out there and the courts’ reluctance to look behind intention in some cases?

Mr. Fox-Decent: I know it is common to see the courts talk about privilege being an absolute privilege. Anything a minister will say on the house floor is subject to an absolute privilege, but what the deputy minister or an assistant to the minister might have said or might have done in bringing documents to the minister will be subject to a qualified privilege. Sometimes we see this sort of distinction.

Qualified privilege is still a significant privilege. It means that the person alleging wrongdoing must show that the individual with the qualified privilege was acting out of malice, whereas with absolute privilege the courts in theory are not even supposed to ask at all what are the reasons behind it.

I am not sure there ever was truly an absolute privilege. We see this, at the very least, with the historical exception for perjury. It has always been the case that if there is a case for perjury before the courts, the courts will be able to look at what was said in Parliament for the purposes of fact-finding with respect to a charge of perjury.

My own sense is that whatever historically the case has been, today, where we understand public servants positioned to be justified wholly in relation to the service they provide to the public, I would think the serious allegations of fraud, corruption, blackmail, misuse of office or breach of trust could be enough to lift the veil.

One way to understand this is much the way in which we understand the way that the veil can sometimes be lifted when we’re dealing with a case of sovereign immunity. When former dictator Augusto Pinochet was brought up on charges in the U.K., his defence was, “I acting in good faith as head of state. I enjoy sovereign immunity as head of state for everything I did. I didn’t do these horrible things, but even if you think I did, I enjoy immunity from those because I was acting as head of state.” The response of the House of Lords was, “Not when you were torturing people. You weren’t acting as the head of state then. You were never authorized, as head of state, to torture people.”

If we were to find compelling evidence to show that a minister had taken money from a private party to secure a contract for this private party or had engaged in some other form of corruption, we would say, “You do occupy a public position, but the remit of your public position does not extend so far.”

I am not sure, Senator Sinclair, whether I answered your question.

Senator Sinclair: You led me to other thoughts, but thank you for the answer.

[Translation]

Senator Maltais: Welcome, Mr. Fox-Decent. I will refer you to an even more recent case in Quebec, which relates to the one Senator Joyal mentioned, the Guy Ouellette case.

Briefly, the UPAC, which is a Quebec investigation, verifications and prevention agency, lured MLA Guy Ouellette out of the Quebec National Assembly in order to arrest him and seize the equipment he used for his work as a MLA. This equipment belonged to the National Assembly. After five months, the Director of Criminal and Penal Prosecutions, the DPCP, lifted restrictions and gave Guy Ouellette his computer and cell phone back, saying there was no reason for him to keep these things that might be used to lay charges.

When Guy Ouellette was arrested, Jacques Chagnon, Speaker of the National Assembly, indicated that the MLA should either be charged or receive an apology. That was a matter of parliamentary law and parliamentary privilege. This case has not yet been resolved and it is currently before the courts.

I was a member of the National Assembly for a long time myself, and I still wonder whether the courts have authority over parliamentary privilege or whether the Speaker of the National Assembly is the guarantor of parliamentary privilege. The same thing applies here, either in the case of the Speaker of the Senate or the Speaker of the House of Commons.

[English]

Mr. Fox-Decent: Could you explain when you ask what should apply? Do you mean privilege should apply in the Quebec case, or should the case be determined without the Speaker being able to raise a privilege?

[Translation]

Senator Maltais: The Speaker claimed privilege.

I will give you an example. The RCMP takes my colleague Senator Wells down the hall and out of Parliament and then puts him in handcuffs. It’s an ambush. They seize his computer and cell phone without laying any charges.

The DPCP said that he gave MLA Ouellette — who, by the way, was re-elected last night with more than 50 per cent of the vote — his computer and cell phone back, stating that he had no reason to lay charges. That is one point.

Another point is that the Speaker of the National Assembly, Jacques Gagnon, told the police at the time to lay charges. It was a matter of either charging the MLA or exonerating him, but they had to choose either one or the other, because you can’t leave a parliamentarian in limbo for six or seven months. The case is now before the courts.

One thing is still nagging at me. Since the MLA was a member of a National Assembly parliamentary committee, who is the guardian of parliamentary privilege, the Speaker or the courts?

[English]

Mr. Fox-Decent: It’s the Speaker.

[Translation]

Senator Maltais: According to the Westminster system, it’s the Speaker. How is it, then, that this case is before the courts? How will the courts respond?

[English]

Mr. Fox-Decent: In a case where a parliamentarian, as you mentioned, is taken away in handcuffs in the midst of performing his role as a parliamentarian, there would be a very strong argument to be made that privilege should stop that from happening because that is a direct inference with the operation of the legislature and the legislature engaging in its legislative and deliberative roles. I think there is a very strong case to be made that privilege should apply there.

If charges are brought, or if as you mentioned laptops or computers are seized, again there is an argument to be made that this is interfering with the operation of Parliament. There will be a limit and we will tend to hit that limit if the RCMP has credible evidence to suggest that a parliamentarian has been engaged in serious wrongdoing and, for the sake of investigating possible criminal acts, may have to do things that would interfere with the ability of particular members to perform their role.

[Translation]

Senator Maltais: I saw another case at the National Assembly, involving a certain member who was charged. The Sûreté du Québec led him out of Parliament. They did not take him by the arm inside, but asked him to go outside and then arrested him. In this case, the MLA was criminally charged, so I completely understand the police. He was indeed a criminal.

However, in Guy Ouellette’s case, the surprising thing is that no charges were laid. If a senator is arbitrarily taken away, led outside Parliament and handcuffed, and his or her work equipment — which in our case belongs to the Canadian government — is seized, all without charges being laid, this is an undue breach of parliamentary privilege.

I must say I’m disappointed that this case is before the courts. The Speaker of the National Assembly, under the Westminster system, should have had the power to tell the police that it was acting outside its purview, because arresting a member within the walls of Parliament requires prima facie charges. However, since no charges were laid, this kind of breach of parliamentary privilege is simply unacceptable.

I don’t know whether you have anything else to add.

[English]

Mr. Fox-Decent: I think part of what is happening in this case is that it is not simply a matter of a problem with parliamentary privilege. It seems to me to be a prosecutor or perhaps an investigator who is acting on what most charitably may be characterized as an excess of zeal. We have an overzealous prosecutor or an overzealous investigator.

I agree with you that a person should not be held in what would sometimes be a state of limbo, a kind of preventive detention, as it were, or a preventive state without some sort of charge or accusation being made to which they can respond. In the absence of that, which would in at least some cases be enough to pierce privilege, there is a good case to be made that parliamentary privilege is being infringed.

The Chair: I have a follow-up, professor, to the question by Senator Maltais. At the end of the day it is becoming evidently clear over the last few years that the courts have been encroaching more and more on parliamentary jurisdiction. We see it almost on a regular basis now. One solution is codifying our privilege, as Senator Joyal is claiming. I am also of the view the moment you start creating a codification of privileges you narrow it down to such a degree where it opens a door for the courts to further encroach on parliamentary jurisdiction.

I would like to know your views on that.

Mr. Fox-Decent: We all know from our Constitution Act, 1867, that we have inherited a constitution similar in principle to the constitution of the U.K. The famous or, for some, infamous British constitutionalist theorist Albert Venn Dicey thought it was one of the great hallmarks of British constitutionalism that rights and liberties were not enshrined in a code. In fact, he criticized the codification of rights and liberties on the continent in Belgium and in France, saying that once you put these things in a code they are just that much easier to take away, limit and cut down. His view was that it was better that these rights and liberties gather up, as it were, incrementally over time through judicial decisions. They become recognized time and time again through judicial decisions, which makes it very difficult to undo or take away these rights and liberties without, as he would say, a complete revolution in the social and political order of things within the polity.

You have a strong ally on your side with respect to the contest of whether to codify or not to codify. My own view is that the proof is typically in the pudding. It depends on what becomes codified and on, to a large extent, the culture that surrounds the entire product of codification. There can be some benefit to it if the culture that surrounds the product of codification is one that recognizes that what is happening when we codify is that we are simply crystallizing what has been with us all along, or what has been there all along, for the sake of having easier starting points so we don’t have to go back to 1689 every time we want to invoke a parliamentary privilege.

One of the views of the Canadian Charter of Rights and Freedoms is that not that much is there that wasn’t there before at least in common law and international law. All we’ve tried to do is make what was there before clearer and more readily available without having to go through the same legal gymnastics to bring it to a court.

There is a risk with codification. The risk is that once something becomes codified it can ossify. It can lose the open textureness you have when you are dealing with judicial decisions because judicial decisions are typically referred to as principles, whereas provisions in a statute are norms and rules. They are typically taken to have a harder edge and often will have that harder edge.

The Chair: My next question is a very general one. What can an institution like Parliament do to reinforce our parliamentary privilege and our position vis-à-vis the courts without crossing the line which exists and should exist between the separation of legislatures and the judiciary?

Mr. Fox-Decent: Probably the most fruitful thing Parliament could do is to deliberately, consciously and publicly announce that it wants to take a proactive role in self-regulating to equip — I don’t want to say arm — committees such as this committee, the Ethics Commissioner, the ombudsperson and others in Parliament who are well placed to play monitoring and supervisory roles; to include within their remit questions of privilege; and to make more public than at present the cases where the courts seem to be whittling down Parliament’s privilege to the detriment of Parliament being able to perform its function.

If you ask most lay people what parliamentary privilege is, they wouldn’t have a clue at all. For most lawyers it’s an arcane doctrine. In Canada, if lawyers could pick out the Vaid case, you are probably talking one in 20, if that. Not many lawyers would have much sense of it at all, much less people who don’t have that sort of a background.

The Chair: Some parliamentarians don’t even have a clear understanding of parliamentary privilege.

Senator Dalphond: Thank you for being here this morning. I am always pleased to see distinguished professors from Montreal being present before the Senate.

I read your paper and found it very interesting. Am I wrong to believe that your main conclusion is to apply to the issue of privilege the same approach that the courts will normally apply to administrative bodies? This is the main spirit of your document, correct?

Mr. Fox-Decent: Yes.

Senator Dalphond: That would mean, more or less, that the Senate, the House of Commons or Parliament as a whole, depending on the circumstances, would be governed by a standard of review applicable to any administrative body within the country, which is normally either correctness or reasonableness depending on the issues presented before the body. Is that what you were arguing?

Mr. Fox-Decent: That is what I was arguing in that paper. I would add that at the time I made that argument one available standard of review was patent unreasonableness. In 2008, in the Dunsmuir decision, reasonableness and patent unreasonableness were standards of review.

Senator Dalphond: They were merged.

Mr. Fox-Decent: They were smooshed together, to use perhaps a term that is not overly technical, and patent reasonableness fell by the wayside.

Now most courts will recognize that reasonableness is what Justice Binnie described as a “big tent.” In my view Parliament and its institutions were governing themselves and making in-house decisions and were at what used to be the far end of the patent unreasonableness end of the spectrum. With that qualification, yes.

Senator Dalphond: Perhaps I can follow up on this line of questioning. Am I fair to describe, maybe because of my past experience, that in a sense the courts have so far been unable to come up with a clear model to do a judicial review of administrative bodies, and the whole debate about what is correctness and what is reasonableness is still a live issue? The Supreme Court announced a few months ago that it would like to revisit the issue of the applicable criteria for judicial review.

Are you proposing to apply a process — and the courts have so far shown difficulty in implementing the judicial review process for statutory bodies, which have limited powers, statutory authorities and limited mandates — to an institution which is, quite frankly, the most important institution in a democratic society? Isn’t it a risk to go from what you call the vagueness of the norms to another system which works through the vagueness of its own norms?

Mr. Fox-Decent: The bad news for some is that when the court wants to, the court will intervene. It is not really a question of whether or not the court will intervene. The question is: On what terms is the court going to intervene?

In my view the best game to play is where Parliament front runs what would happen at the court and takes as much responsibility by acting as procedurally fair as it can through its institutions when it is making decisions, especially with respect to third parties. These will typically be the more contentious cases.

Let me say that I agree with you. There is a deep problem with Canadian public law that deals with administrative law where the courts look at what administrative bodies are doing and decide that what they have done is lawful or not lawful.

Historically, the device our courts have used to intervene when they want to intervene is what we refer to as jurisdictional review. If you are interpreting the law and make a simple error of law, the courts will say that they aren’t going to intervene. If you make an error of law that takes you outside your jurisdiction, you are exercising a power that wasn’t given to you. Then, of course, the courts have to intervene because they are the only body in the Canadian legal system authorized to determine the extent of our own jurisdiction. Every other body’s jurisdiction is determined typically by Parliament or by a provincial legislative act.

The difficulty is that this distinction between jurisdictional and non-jurisdictional error is impossible to maintain. As soon as the court comes to the view that an administrative body has made a non-jurisdictional error, what they are saying is that you have misinterpreted your statute in some way. As soon as a determination is made that a statute has been misinterpreted, it’s a very small step to saying that you have exercised a power that wasn’t given to you because you haven’t understood what your statutory remit is. That’s a jurisdictional error. They collapse that quickly.

In the article that you have read, I was trying to voice the same concern about the scope and exercise distinction that the courts use with respect to parliamentary privilege. It’s the same kind of distinction. What is the scope or existence of a privilege?

All we are talking about when we talk about the scope of a privilege is the set of different things that parliamentarians can do that fall within a particular kind of privilege. When we say “the set of things,” we are still talking about exercises of privilege. To understand a privilege at all, you have to understand it is in some way being exercised. As soon as you understand that the scope is just a compendious way to talk about certain kinds of exercises of privilege that distinction falls apart too. This is why we see Chief Justice McLachlin and Justice Binnie in the CBC case and in the Vaid case both falling back on floodgate arguments by saying, “Oh, we have to provide this category approach. Otherwise, there will be a flood of complaints and our parliamentary system will be gummed with these complaints.” As an academic, that was not the most fortunate way for our jurisprudence to develop, but there it is. That is what it is and that is what the black letter law says.

In my view, the best that Parliament can do to grapple with that and to grapple with courts that will more intrusively find that it is all a question of characterization. Does the Speaker of the house have authority to manage employees of confidence such as EAs? Most people would probably say yes. Does the Speaker of the house have the authority to manage employees of confidence in a way that flagrantly violates their human rights? I think most people would say no.

It is just a question of how you are characterizing the privilege. If you characterize it to include respect for human rights or various fundamental values, it is hard to see how that justification can be given for those kinds of privileges. Nor do I think Parliament or our provincial legislatures would, publicly at least, want to ask for those kinds of privileges. The way that Parliament and provincial legislatures can go about ensuring that sensible privileges remain is by creating in-house mechanisms that oversee them, that oversee their assertions, and at least provide prima facie rulings on what counts as a legitimate or not legitimate exercise of privilege.

Senator Dalphond: I am in agreement with what the Supreme Court has said so far. So did the Quebec Court of Appeal in the Michaud case, where Mr. Michaud argued that the National Assembly violated his fundamental rights by blaming him for a speech he made outside the National Assembly.

I am worried about the idea of codifying the privileges and bringing the courts into the political forum. If you can challenge the Speaker’s decisions on the basis of reasonableness, the unhappy party may go to the Federal Court and say that this federal institution is subject to federal review by the Federal Court, that the decision of the Speaker, the management committee or the Internal Economy Committee was unreasonable. Thus, you would have the courts with the final say on the proper decision to be made by an internal body of Parliament.

Aren’t we crossing a line that even the courts are reluctant to cross? For example, the Canadian Judicial Council is claiming before the Federal Court that the Federal Court has no power to review its decisions because it is independent of the Federal Court. In a judge in B.C. wanted to walk into the courthouse but there was a strike and he couldn’t do so, he didn’t mind the Charter of Rights. He just issued an order to call the police and provide access. That was not subject to review and the Charter was not applicable in such a case. So why would Parliament subject itself to the courts unless it wants to make the courts the supreme final say in the system?

To me, the current case law shows a check and balance that should continue to exist in the system. If you apply judicial review, there would no longer be a check and balance with the the courts having the final say. Whatever they can define as being reasonable will be the criteria. If they don’t like a decision, as you put it, they find a way to correct it. That means at the end of the day that the courts will be able to change political course.

Mr. Fox-Decent: If I can respond quickly, legislative bodies are facing a difficulty. The courts have worked out internally a system of checks and balances. If the judge in British Columbia had said to get rid of these people and started screaming out a bunch of racist, misogynist or different things, that could very well have been grounds for a complaint to the Canadian Judicial Council. We know that numerous judges have faced disciplinary proceedings and consequences as a result of that.

However, if the Speaker of the house were to engage in something like this, where within Parliament does someone go to find redress? From an institutional perspective, that is what seems to be missing to me. That is why people outside of Parliament and outside of these debates would be mystified and would be unsatisfied. Even our judges have to answer to someone. They have to answer to the Canadian Judicial Council or sometimes to a provincial body, but the Speaker and certain others within our parliamentary institutions don’t have to answer to anyone, even within Parliament.

For your argument to stick, for it to be apples and apples, there have to be institutions developed within Parliament to which the Speaker would have to give a response to assertions of privilege. Then you would have something similar.

The Chair: Given the fact that I was a former Speaker and had the privilege to serve as Speaker of the Senate, I would be remiss if I did not point out that in our Westminster system right across the board you are absolutely right about the final authority on the ruling of privilege. Our Speakers are the administrative authorities of all parliaments. Of course, the Senate is a bit unique in the sense that the Speaker is one among equals in the Senate. He or she is also much more a barometer for consensus rather than the authority for the applicability of rules. We have had many instances throughout the 151 years in the Senate where Speakers’ rulings have been overruled by the chamber itself.

That adds an additional dimension of accountability in our chamber compared to others. I wanted to point that out.

Senator Wells: Mr. Chair, I was also going to point that out, given the ruling and the overturning of the ruling while you were Speaker of the Senate a couple of years ago. That came to mind. Supremacy didn’t rest.

Senator Joyal: How did you vote?

Senator Wells: I don’t recall.

The Chair: Senator Joyal, I remember you were on the right side of history.

Senator Joyal: I was on the right side of history.

Senator Wells: In our small system it’s the Senate itself as opposed to the Speaker who did reign supreme, although in the majority of cases the Speaker’s rulings are obviously respected.

This goes to a comment earlier about exercising parliamentary privilege. The way I see it, there are three possible levels of exercising it. One is to have it codified, which makes it hard rules, and there are a lot of sharp edges around that. The other is anchoring it to something like precedent, which is a bit softer than codification. Still, it is something to which something can be pointed. The final level, which might be the softest level and maybe the level that we have, is good practice.

Where would you suggest this would sit for something like Canada’s Parliament and the two houses? Would there be a difference between those two houses?

Mr. Fox-Decent: To the extent that we have codification it is really codification of precedents. We are definitely in the precedent, in the middle of those three. The precedents that we have are taken seriously. These are not simply the precedents we have in Canada but the precedents that come from the U.K. as a result of section 18 of our Constitution and its reference to the U.K. Parliament at Westminster. That’s where we are.

The challenge is that a lot of these precedents go back a long way. It is quite questionable the extent to which some of them continue to have application or would be viewed as having application. The downside of precedent is that it can get musty over time. Until there is a case that clearly overrules something that came before, old precedents will still have at least persuasive if not binding authority. It tends to be more soft edged and treated as principles rather than legal rules. For some people that is a lemon and for others it is lemonade.

The Chair: Since no other senators want to weigh in on the first round, we will go to the second round.

Senator Joyal: I want to add an element to the question and answer that you provided to Senator Maltais in relation to a senator or a member of Parliament who would be fined in a situation where he or she is accused of a criminal offence. The code of ethics provides that in such a case he is invited to withdraw from the chamber in order to protect the integrity and the dignity of the institution.

In other words, in my opinion, this provision of the code is essential to maintain the overall objective of the privilege. In that case, the privilege of the institution prevails over the status of one of its members. It is important to remember that.

However, that is not my question. My question is in relation to the trend. My colleagues who were on the bench before will certainly recognize this. As you know, there was a case in which Justice Girouard was the object of a recommendation to be expelled from the bench. Recently it was appealed to the Federal Court. Even though the Canadian Justice Council petitioned the court to deny jurisdiction to the court under the principle of judicial independence, nevertheless the Federal Court, under the pen of Justice Noël, concluded that the court had jurisdiction over the Canadian Judicial Council.

When I read that decision and the comments that were published around that decision, it gave me a perception of the judicialisation of the exercise of a claim of independence by the court. As you properly alluded, each professional body is self-regulating. Even though they are self-regulating, if the Federal Court decision stands they are still remaining under judicial control.

If we apply that precedent to the way we should approach our own responsibility to determine the rights of third parties in relation to the chamber, we have to be very mindful of the scope of responsibility we would claim and would enshrine in our rules. I would expect that is the way it would happen. We would have the Rules of the Senate that provide, roughly stating, the process when a third party feels aggrieved to complain to a committee or to an agent of Parliament that would investigate. That is how we follow the principle of the system in the case of a conflict of interest. If there is an allegation of a senator against another allegation, it’s not the senators themselves who conduct the investigation. There is a preliminary review. If there is an investigation to be conducted, it is in the purview or the responsibility of the Ethics Commissioner to conduct it along the lines of the principle of fundamental justice.

Once a fair investigation has been concluded, it is for the Senate to decide that there is an element of equity in the system that needs to be enshrined to ensure that the conclusion is sound. It seems to me that the decision of the Canadian Judicial Council in the case of Justice Girouard allows us some reflection and background in relation to how we should approach what I call the middle-ground avenue of the Rules of the Senate. That would provide for an appeal by somebody who feels aggrieved by a third party under the exercise of privilege in the context of the principle of fundamental justice and to which extent that principle would still be reviewable by the court on the basis of the Girouard decision.

Mr. Fox-Decent: I think that makes a lot of sense. Let me use this opportunity to respond to part of the chair’s prior question when he asked what Parliament could do to provide better protection of Parliament against judges. What was done to try to protect administrative bodies, labour relations boards in particular, provincial legislatures and Parliament itself was the introduction of privative clauses or clauses that expressly, with no uncertain terms, told the courts to stay out.

The courts famously paid little but some attention to these clauses, which means that the courts will tend to review the decisions, at least formally, with a more deferential attitude. They will take the indication from Parliament that essentially the courts are not welcome here as an indication that they should only be reviewing if they think there is a question of jurisdiction at issue or if something, as was suggested, really doesn’t pass the smell test.

With respect to what we can hope for from the decision of the Federal Court and the Canadian Judicial Council, as I mentioned before, where judges want to become involved they will always find the tools to become involved on the basis of the principle that judicial review of any action of a public figure in Canada is potentially subject to judicial review to determine whether that official’s or that body’s action took place within the confines of its legal limits. This is just part of how judges understand their position in Canada’s legal order.

I don’t think anything can be done. The genie is out of the bottle. I don’t think there is anything that can be done to put it back in or turn back the clock on that realistically from within the Canadian Judicial Council or from within Parliament or the provincial legislatures. That’s why the most important or the best thing to be done is very deliberate and very extroverted self-regulation that reflects the norms of procedural fairness and the norms of reasonableness that the courts are hoping to see anyways. As a matter of course, I think you can already find that in the practices of the Ethics Cmmissioner.

[Translation]

Senator Maltais: First, I’d like to clarify a point about my 1984 example. We can now name the MLA involved, since he has passed away. He was Gilles Grégoire, the member for Frontenac. Criminal charges were brought against him while he was inside the National Assembly. The Sûreté du Québec did not come in to arrest him inside the National Assembly because it could not do that. The member was arrested when he left the building. Was that clear?

In Guy Ouellette’s case, no charges were laid. He was ambushed, as a result of false information. No charges were ever laid, and the Director of Criminal Prosecutions found that there weren’t even any grounds for an investigation. He returned his documents, his computer, his tablet and his phone. The case is now before the courts.

The other point I very humbly submit to you is the following: we cannot rely on the English Constitution to codify our privileges, because that simply does not exist; we must rely on parliamentary practice and the Constitution of Canada. Parliamentary privilege is included in the Constitution, but we also know there is something else, and that is parliamentary practice.

According to parliamentary practice, the Speaker is to be the guardian of parliamentary privileges. Things are a bit different in the Senate, because even if the Speaker is the guardian, his or her decisions can be challenged, while in the House of Commons, MPs can’t do the same. In legislative assemblies, MPs can’t challenge Speakers’ rulings because that would undermine confidence in the Speaker. In many cases, these challenges have caused Speakers to resign. Therefore, the practice for parliamentarians is never to challenge a Speaker’s ruling, and I’m excluding the Senate. That’s an issue.

If we codify our privileges, might we forget any of them? If ever another privilege that we had not anticipated comes along, would we be closing the door to other things that could happen in 10, 15 or 20 years? Because the Constitution has not provided for everything in the last 150 years, and many things have been added.

Mr. Fox-Decent: Thank you for the question. Not necessarily, that depends on the sustainability of the code. In my view, it is possible to produce open-textured codification that allows for other provisions on privilege.

Senator Maltais: The codification would not be set in stone.

Mr. Fox-Decent: No, not necessarily. I think it would be better this way.

Senator Maltais: Thank you very much.

[English]

The Chair: Colleagues, as there are no further questions, I would like to offer the floor to Professor Fox-Decent to make any closing remarks.

Mr. Fox-Decent: Thank you very much for this opportunity. It was a great pleasure to come to Ottawa and share this morning with you.

I wrote my paper some time ago on the Vaid decision. One never knows in academia what will wither on the vine or what may yet flourish long after the ink has dried. I am happy to see that small contribution could bring us together.

The Chair: Thank you for your presence here today.

Colleagues, thank you for what I thought was a very interesting discussion today. I remind the audience and everybody around the table that we will be meeting in two weeks when we will be back with some of our colleagues from Internal Economy who will be with us in regard to the oversight committee.

(The committee adjourned.)