Pankiw v. Canada (Human Rights Commission), 2006 FC 1544

 

 

 

Date: 20061221

Docket: T-1329-05

Citation: 2006 FC 1544

Ottawa, Ontario, December 21, 2006

PRESENT:     The Honourable Mr. Justice Lemieux

 

BETWEEN:

JIM PANKIW

Applicant

and

 

CANADIAN HUMAN RIGHTS COMMISSION

Respondent

 

and

 

KEITH DREAVER, NORMA FAIRBAIRN, SUSAN GINGELL,

PAMELA IRVINE, JOHN MELENCHUK, RICHARD ROSS, AILSA WATKINSON, HARLAN WEIDENHAMMER, and CARMAN WILLET

 

Respondents

 

and

 

SPEAKER OF THE HOUSE OF COMMONS

Intervener

 

 

REASONS FOR JUDGMENT AND JUDGMENT

 

1.  Introduction and Background

[1]               This is a judicial review application from a preliminary jurisdictional decision of a Canadian Human Rights Tribunal (the Tribunal) dated July 21, 2005 holding it had constitutional and statutory jurisdiction to hear and determine nine complains referred to it by the Canadian Human Rights Commission (the Commission).

  

[2]               During his time as a Member of Parliament, Dr. Pankiw, the applicant in these proceedings, authored and distributed an information brochure known as the “householder” to his constituents in the riding of Saskatoon- Humbolt.  The householder is printed and paid for under the auspices of the House of Commons.  Each M.P. is entitled to send up to four householders per year to constituents.  Dr. Pankiw was defeated in the 2004 elections. 

 

[3]     The nine complainants Keith Dreaver, et. al., allege in October 2003, Dr. Pankiw distributed a householder containing discriminatory comments about Aboriginal peoples contravening sections 5, 12 and 14 of the Canadian Human Rights Act, (CHRA).  I set out in Appendix A to these reasons sections 5, 12, 13 and 14 of the CHRA.

 

[4]     None of the parties’ records contain a copy of the Commission’s investigation report or the Commission’s decision sending the matter to the Tribunal nor did those records contain a copy of any of the complaints filed or a copy of the householder in question.  

 

[5]      Before any evidence was taken, the Speaker of the House of Commons (the Speaker) who was granted intervener status, brought a preliminary motion before the Tribunal claiming it did not have statutory or constitutional jurisdiction to investigate the complaints touching on activities he had undertaken as a Member of Parliament. 

 

[6]    The Tribunal heard argument on this motion on an agreed statement of facts in early March,  2005 at a time, the Supreme Court of Canada had under reserve the case of Canada (House of Commons) v. Vaid which it decided on May 20, 2005, reported as [2005] 1 S.C.R. 667.

 

[7]      The grounds for the preliminary objection on jurisdiction were: (1).  The arguments put before the Supreme Court of Canada in Vaid, (2) The preparation and sending of householders to all constituents is not a “service” as that term is used in sections 5 and 14 of the CHRA.  (3) The Board of Internal Economy of the House of Commons has exclusive jurisdiction to determine the proper use of householders and (4) Political speech is subject to review only by the electorate in the democratic process and review by the Tribunal, a government decision-maker, of the contents of a Member of Parliament’s communications with his constituents, particularly that of an opposition M.P. would violate the constitutional principle of the separation of powers and Parliamentary privilege.

 

[8]     The agreed facts were: 

(a) In October, 2003 Dr. Jim Pankiw, then independent Member of Parliament for the riding of Saskatoon-Humbolt, had printed and delivered, in his capacity as a Member, a “householder” that the complainants allege contains material that is discriminatory;

 

(b) A householder is a printed brochure sent to each householder within a constituency by each Member of Parliament.  Each Member may send up to four householders per year;

 

(c) The householders are printed by the House of Commons;

 

(d) The authority to have householders printed by the House of Commons is found in the Members’ Offices Bylaw, Bylaw 301, of the Board of Internal Economy of the House of Commons.  This Bylaw is elaborated upon in the Manual of Allowances and Services for Members of the House of Commons;

 

(e) As at the date of this agreed statement of facts, the Supreme Court of Canada has heard the case of Vaid v. The House of Commons, SCC File 29564, on September 13, 2004 and has reserved its decision;

 

(f)   June 28, 2004 Dr. Pankiw was defeated in the 38^th general election.

 

[Emphasis mine]

 

[9]     The issues raised in this judicial review application are the following:

1.  Does Parliamentary Privilege apply to the sending of householders resulting in an absolute immunity from external review outside the House itself?

 

2.  Does the Tribunal’s jurisdiction offend the separation of powers? 

 

3.  Does the Tribunal’s jurisdiction offend democratic principles and the guarantee of freedom of expression?   

 

4. Does the Board of Internal Economy’s exclusive jurisdiction to review the proper use of funds or services by an M.P. oust the Tribunal’s jurisdiction to deal with a complaint of discrimination under the CHRA in respect of the content of a householder?

 

5. Should this court deal, at this stage, with the issue of whether the sending of a  householder to constituents “is a service customarily available to the general public” within the meaning of section 5 and 14 of the CHRA or whether the content of the householder breaches section 12 of that statute?      

 

[10]     The applicant’s record contains the affidavit of Charles J. Duperreault.  At the relevant time, Mr. Duperreault was an articling student at the House of Commons.  His affidavit is very brief.  He states the complainants filed human rights complaints regarding the content of a householder issued by a Member of Parliament to his constituents and adds that “Since the complaints related to the functions of a Member of Parliament, the House of Commons brought a motion challenging the jurisdiction of the Tribunal to hear the matter”, attaching as Exhibit “A” to his affidavit, the Notice of Motion raising the preliminary objection.  He indicates the Commission and the House of Commons agreed to proceed on the motion based on an agreed statement of facts which he appends as Exhibit “B”.  Finally, in his affidavit, he deposes to the date of the Tribunal’s hearing and the date of its decision.  He was not cross-examined on his affidavit.  

 

[11]     The record of the respondent Commission was not supported by any affidavit.  The respondent complainants did not participate in this judicial review.

 

[12]     The record of the intervener, the Speaker of the House of Commons, (as prime mover of the jurisdictional motion before the Tribunal) was supported by the affidavit of Robert R. Walsh, sworn on January 25, 2006.   Mr. Walsh is the Law Clerk and Parliamentary Counsel of the House of Commons.  He deposes as follows:

“1.  I am the Law Clerk and Parliamentary Counsel of the House of Commons and as such have knowledge of the matters deposed to herein.

 

2.  As Law Clerk and Parliamentary Counsel, I am responsible for providing legal advice and representation for the House of Commons, the Administration of the House of Commons, as well as for Members of Parliament in respect of legal and legislative matters.  I am also a Table Officer of the House of Commons.  As the Law Clerk, I attend meetings of the Board of Internal Economy.

 

3.  I have been employed at the House of Commons for 14 years.  From 1991 to 1996 I was General Legislative Counsel, from 1996 to 1999 I was also Director of the Committees Branch of the House and in December 1999 I was appointed to the position of Law Clerk and Parliamentary Counsel with responsibility for both legislative counsel and legal counsel services.

 

4.  Communications between Members of Parliament and their constituents is generally regarded by members as an important part of their parliamentary responsibilities and necessary for the effective carrying out of their parliamentary function.

 

5.  At the present time a Member’s primary means of communication with constituents is through publications called “householders” and “ten percenters”, which are unaddressed mass mailings to constituents.

 

6.  As noted in the Affidavit of Charles Duperreault, filed by the Applicant, the sending of these publications is regulated by the Board of Internal Economy of the House of Commons through its By-laws and the Manual of Allowances and Services.  In addition, provisions of Canada Post Corporation Act enable this material to be delivered as mail without postage.  That Act also allows Members of Parliament to send mail under a postage-free frank and for members of the public to send mail without postage to Members.

 

7.  Indicative of the importance attached to the use of householders and ten percenters by Members, in the last year there have been six points of privilege raised in the House alleging breaches of privilege relating to the franking privilege, householders and ten percenters (February 15, April 18, May 3, May 4, May 10, and November 3, 2005).  In all cases the Speaker determined that a prima facie case of breach of privilege was established.  In four instances the matter was referred in the usual manner to the House of Commons Standing Committee on Procedure and House Affairs for further consideration.  Attached as Exhibit “A”, “B”, “C”, “D” are extracts from the Journals of the House of Commons for the four referrals to committee.  Attached as Exhibit “E” is the Speaker’s ruling of February 15, 2005, resolving that issue in the fifth instance without referral to a committee.

 

8.  In the sixth point of privilege, raised on November 3, 2005, which related to the content of a particular householder, the matter was debated in the House over four sitting days.  The Journals of the House of Commons relating to this debate are found at Tabs 1 and 2 of Volume 2 of the Application Record.

 

9.  In addition to these several points of privilege, questions relating to content permissible in householders and ten percenters are often brought to House legal counsel by Members, Caucus research bureaus and House Administration (printing and postal).

 

10.  Given my experience at the House of Commons over the last 14 years and the recent rulings and proceedings in the House of Commons and its Committees, it is apparent that Members of Parliament consider the ability to communicate with their constituents, in an unfiltered fashion, an important aspect of their parliamentary function.”  [Emphasis mine]                     

 

[13]     Mr. Walsh was not cross-examined on his affidavit.     

 

[14]     On April 25, 2006, pursuant to section 57 of the Federal Courts Act, the applicant served and filed a Notice of Constitutional Question stating that he intends to question “the constitutional applicability of sections 5, 12 and 14 of the Act [CHRA] to the publication and distribution of “householders” by Members of the House of Commons.”

 

[15]     The Vaid case was one involving an employee of the House of Commons, a chauffeur to the Speaker of the House, who made a complaint to the Commission alleging, inter alia, a refusal to continue his employment by the Speaker was based on a prohibited ground of discrimination.  The Commission referred the matter to the Tribunal whose jurisdiction was challenged, the Speaker and the House of Commons claiming that the Speaker’s power to hire, manage and dismiss employees was within a category of Parliamentary privilege and therefore immune to external review by the courts or the Tribunal.  The Tribunal dismissed the challenge.  On an application for judicial review, both the Federal Court, Trial Division, as it then was, and the Federal Court of Appeal upheld the Tribunal’s decision.

 

[16]     In the Supreme Court of Canada, the Vaid case turned on two points:  First, the existence and scope of the Parliamentary privilege claimed, i.e., “the management of its employees” and second, whether the availability of a grievance under the Parliamentary Employment and Staff Relations Act (PESRA) ousted the investigative and dispute resolution machinery under the Canadian Human Rights Act on the facts of the case. 

 

[17]     In Vaid, Justice Binnie, writing the Court’s reasons for judgment, decided the Parliamentary privilege claimed by the Speaker over all the House of Commons’ employees was over-broad and did not include support staff such as Mr. Vaid but he had no doubt “the privilege attaches to the House’s relations with some of its employees” (paragraph 75).  On the other hand, he allowed the appeal, taking the view Mr. Vaid should have proceeded under PESRA rather than to the Tribunal whose jurisdiction was thereby ousted.                  

 

[18]     Justice Binnie stated the case law and learned authors defined Parliamentary privilege as “in the Canadian context is the sum of the privileges, immunities, and powers enjoyed by the Senate, the House of Commons, and the provincial legislative assemblies, and by each member individually, without which they could not discharge their functions” (paragraph 29.2).  The onus lies on those who assert the privilege to establish that “the category and scope of privilege they claim do not exceed those that at the passing of the Parliament of Canada [were] held, enjoyed and exercised by the Commons’ House of Parliament of the United Kingdom…and by the members thereof” (paragraph 53). See also paragraph 38 of his reasons where Justice Binnie refers to section 18 of the Constitution Act, 1867 as the basis for his proposition at paragraph 53 of his reasons.

 

[19]     He set up a two-step test to determine this issue.  At paragraph 39 of his reasons he stated “The first step a Canadian Court is required to take in determining whether or not a privilege exists within the meaning of the Parliament of Canada Act, (PCA) is to ascertain whether the existence and scope of the claimed privilege have been authoritatively established in relation to our own Parliament or to the House of Commons at Westminster” and to answer this question, he examined both Canadian and British authority on the question considering judicial pronouncements, historical documents, committee reports and the writings of learned authors on the issue of the existence and scope of Parliamentary privilege.  As Appendix B to these reasons I set out the relevant provisions of the PCA. 

 

[20]     At paragraph 40 of his reasons, he described the second step as arising “when a claim to privilege comes before a Canadian court seeking to immunize Parliamentarians from the ordinary legal consequences of the exercise of powers in relation to non-Parliamentarians, and the validity and scope in relation to the U.K. House of Commons and its members have not been authority established, our courts will be required (as the British courts are required in equivalent circumstances) to test the claim against the doctrine of necessity, which is the foundation of all Parliamentary privilege” adding “Of course in relation to these matters, the courts will clearly give considerable deference to our own Parliament’s view of the scope of autonomy it considers necessary to fulfill its functions”, cautioning, “If a dispute arises between the House and a stranger to the House, as in the present appeal it will be for the courts to determine if the admitted category of privilege has the scope claimed for it” emphasising “This adjudication … goes to the existence and scope of the House’s jurisdiction not to the propriety…in any particular case.” [Emphasis mine]

 

[21]     He re-stated that Parliamentary privilege at paragraph 41 is defined “By the degree of autonomy necessary to perform the Parliament’s constitutional function” quoting Sir Erskine May or as defined by Maingot in terms of necessary immunity to members of Parliament or the provincial legislators in order for “those legislators to do their legislative work” and to the question “Necessary in relation to what question?”, therefore, “the answer is necessary to protect legislators in the discharge of their legislative and deliberative functions, and the legislative assembly’s work in holding the government to account for the conduct of the country’s business.”[Emphasis Mine]

 

[22]     At paragraph 44, he was of the view there had to be “A purposive connection between necessity and the legislative function” quoting an extract from the British Joint Committee Report on Parliamentary privileges that:

“The dividing line between privileged and non-privileged activities of each House is not easy to define.  Perhaps the nearest approach to a definition is that the areas in which the Courts ought not to intervene extend beyond proceedings in Parliament, but the privileged areas must be so closely and directly connected with proceedings in Parliament that intervention by the courts would be inconsistent with Parliament’s sovereignty as a legislative and deliberative assembly.” [Emphasis by Justice Binnie]

 

[23]     Concluding at paragraph 46, Justice Binnie wrote as follows:

“All of these sources point in the direction of a similar conclusion.  In order to sustain a claim of Parliamentary privilege, the assembly or member seeking its immunity must show that the sphere of activity for which privilege is claimed is so closely and directly connected with the fulfilment by the assembly or its members of their functions as a legislative and deliberative body, including the assembly’s work in holding the government to account, that outside interference would undermine the level [page 700] of autonomy required to enable the assembly and its members to do their work with dignity and efficiency.”  [Emphasis mine].                                                 

 

 

[24]     As an aside to Justice Binnie’s analysis in my view, his statement is important because it seems to recognize that the traditional “walls of Parliament” foreclosure may be permeated to limited extent.    

2.  The Tribunal’s Decision       

[25]     The Tribunal rejected the submissions advanced by the applicant supported by the Speaker they were:

1.    The Board of Internal Economy of the House of Commons (the Board) had exclusive jurisdiction to deal with the complaints on the basis of section 50 and following of the PCA;

 

2.    He enjoyed parliamentary immunity from having the complaints investigated and adjudicated by the Tribunal;

 

3.    The CHRA did not apply to Dr. Pankiw;

4.     The doctrine of the separation of powers between the Legislative and Executive Branches of Government disentitled the Tribunal, as part of the Executive, from otherwise exercising its jurisdiction to investigate and adjudicate upon the complaints.

 

[26]     I deal with each of the Tribunal’s findings separately.

(a) Exclusive jurisdiction of the Board

 

[27]      This first issue, the exclusive jurisdiction of the Board of Internal Economy of the House of Commons, (the Board) was raised in the context of the proper use of House resources.  It was argued the Board has the exclusive authority to oversee householders, including their content.

 

[28]      The Tribunal made the following factual findings on this point:

“Householders are printed using the resources of the House of Commons.  Funding for householders is provided by the Board of Internal Economy of the House of Commons.  The Board exists pursuant to section 50 and following of the Parliament of Canada Act, (PCA).  Members of the Board include government and opposition Members of the House of Commons.  It is chaired by the Speaker of the House.  The Board’s functions are to act on all financial and administrative matters in respect of the House of Commons, its premises, services and staff, as well as its Members.”      

 

 

[29]         As mentioned, Appendix B to these reasons set out certain provisions of the PCA.  Those related to the Board are found in sections 50 to 54.  Certain By-laws made by the Board are set out in Appendix C and the Members’ Service Manual statements dealing with householders are at Appendix D.

 

[30]       The Tribunal concluded the Board did not have exclusive jurisdiction to deal with complaints about the content of “householders” in the face of the provision of subsection 52.6(1) of the PCA which reads:         

 

[31]     Whether the sending of householders constituted a parliamentary function as defined by the Board in its Bylaw 101 was not an issue for the Tribunal since, according to it, would not lead to a conclusion of exclusive jurisdiction in Vaid, above it was held the CHRA was a quasi-constitutional document and an exemption from its provision must be clearly stated.  It could not find such clear statement for the following reasons.  

 

[32]     First, it stated paragraph 52.6 (1) of the PCA, on its face, contained no reference on the non-application of the CHRA or the ousting of the Tribunal’s jurisdiction.

 

[33]     Second, the Tribunal examined the dictionary meaning of “proper” and the expression “régularité” used in the French text.  It said the term “régularité” is more closely associated with the notion of administrative regularity and chose this meaning because “Such reading is more consistent with the direction given in paragraph 52.6(1) of the PCA that the Board should, in determining whether the use of House resources was proper, have regard to the intent and purpose of the By-Laws made under subsection 52.5(1), [of the PCA].”         

 

[34]    Third, it found the printing of householders is specifically addressed in Members’ Offices By-law No. 301 concluding:

“It is obvious from a reading of the by-laws that their intent and purpose is to regulate the administration of House resources (e.g. purchasing office equipment, printing stationery, leasing office space, remunerating staff, etc.).  The by-laws do not contain provisions touching upon human rights principles, nor, for that matter “decent” or “respectable” conduct to use the definition of “proper” suggested by the Respondent, [Dr. Pankiw].”                                          

 

[35]      The Tribunal derived comfort from the Ontario Court of Appeal’s decision in Ontario c. Bernier, [1994] A.O. no. 647 and the Québec Court of Appeal’s judgment in R. v. Fontaine, [1995] A.Q. No. 295.  It said “At issue in both cases was whether section 52.6(1) ousted the jurisdiction of the courts to hear a case involving charges that a Member had used the funds allocated to him by the Board in a manner that contravened the Criminal Code” and concluded both appellate courts found otherwise, holding that 52.6(1) “only gives the Board authority to determine if a Member of the House of Commons used these resources in a manner consistent with the by-laws.” adding “significantly, the term “by-laws” of the English text of section 52.5 and 52.6 is rendered as “règlements administratifs” in the French version.”  [Emphasis mine].

 

[36]      The Tribunal closed this issue writing:

“As Madame Justice Arbour commented at paragraph 4 of the Bernier decision, Parliament established the Board to exclusively manage the internal workings of the House of Commons.  In doing so, Parliament did not express an intention to remove from the courts their jurisdiction to apply the Criminal Code to Members.  In our opinion, the same conclusion can be drawn with respect to the authority of the Tribunal to determine if there has been a violation of the CHRA.  Parliament has not shown an intention to exclude Members, and particularly, their householders, from the application of the CHRA.”  [Emphasis mine].

 

 

(b)  Parliamentary privilege or Immunity

 

 

[37]    On this point, the Tribunal concluded the scope of Parliamentary privilege did not cover the sending of householders to constituents.  It reasoned:

“14.  Nor does it appear to us that the PCA and section 52.6, in particular, extends the scope of any privilege or immunity from which Members may benefit.  Parliamentary privilege provides Members with an absolute immunity from civil or criminal prosecution when speaking in the House of Commons or engaged in a proceeding in Parliament (see J.P.J. Maingot, Parliamentary Privilege in Canada, Second Edition).  Over the years, the assertion of Parliamentary privilege has varied in its scope and extent.  But as the Supreme Court of Canada noted in Vaid, (at paragraph 23), a narrower concept of privilege has developed in most recent times.  The Court referred to a 1971 ruling of the Speaker of the House who stated that Parliamentary privilege “does not go much beyond the right of free speech in the House of Commons and the right of a Member to discharge his duties in the House as a Member of the House of Commons.  

 

15.  The respondent, [Mr.Pankiw] agrees that the immunity attached to Parliamentary privilege does not extend to statements or publications made by Members outside of the House or parliamentary proceedings.  Thus, members of legislatures are not immune from criminal prosecution from statements made to the press outside the Chambers of Parliament (see re.Ouellet (Nos. 1 and 2) [1976] C.A. 788), nor from liability in defamation actions for answers given to a reporter outside a legislature (see Ward v. Clark, 2000 BCSC, 979).  It follows that there is no immunity from the application of the CHRA.”  [Emphasis mine]  

 

 

(c)  Does the CHRA apply to a Member of Parliament?

[38]      Dr. Pankiw argued before the Tribunal the legislative scheme of the CHRA does not apply to him because he lacks the appropriate “federal” quality that would make him subject to the federal human rights scheme.  He is not engaged in a federal work, undertaking or business, nor is he part of the federal Crown or the Government of Canada advancing, “the only factor that brings him within the federal sphere of activity is that in communicating with his constituents through a householder, he is carrying out his parliamentary function as a member of the House of Commons.”  The Tribunal viewed Dr. Pankiw’s argument as being premised on his contention the legislative authority over a member of the House of Commons is limited to the PCA.

 

[39]      The Tribunal rejected this argument in the following terms:

“The purpose and scope of the CHRA is articulated in section 2 and is not as limitative as the respondent suggests in his submissions.  The provision states that the purpose of the CHRA is to give effect, “within the purview of matters coming within the legislative authority of Parliament” to the principles of equal opportunity elaborated therein.

 

In our opinion, the statutory language of the CHRA is broad enough to also encompass statements made by Members in householders published and paid for by the House of Commons, pursuant to an Act of Parliament, the PCA.  Since Parliament enacted this legislative framework, which ultimately regulates householders, it is plain that the publication and content of householders must also fall within the purview of matters coming within Parliament’s legislative authority.” [Emphasis mine]            

 

(d)  The doctrine of the separation of powers

 

[40]    The last of Dr. Pankiw’s arguments to shield himself from the reach of the CHRA turns on the doctrine of the separation of powers between the legislative and the executive branches of government.  He argues this doctrine would be breached or undermined if an administrative tribunal such as the Tribunal which, he argues, is not constitutionally distinct from the executive, were allowed to examine and decide upon the content of a Parliamentarian’s communications with constituents.

 

[41]      According to the Tribunal, the underpinning of Dr. Pankiw’s argument on this point is

a reference to the Supreme Court of Canada’s decision in Re Alberta Legislation [1938] S.C.R. 100 on how Parliament functions, “it works under the influence of public opinion and public discussion.  It derives its efficiency from free public discussion and “the freest and fullest analysis” and examination from every point of view of political proposals.”  

 

[42]     The Tribunal stated Dr. Pankiw contended, “The expression of political views by a member of the House of Commons is political speech and should be subject only to review by the electorate through the democratic process.”

 

[43]      The thrust of his argument, according to the Tribunal, is that, “no outsider, particularly an agent of the executive branch of the State, should be able to interfere with this free and unfettered debate and exchange of ideas in the legislature.”  Dr. Pankiw argued, the Tribunal said, “the Government should not have any say or control over the free speech of a member of the House, particularly of the Opposition” further submitting “Allowing the review of contents of householders and other forms of Members’ political speech would limit their ability to fully express their views.  This, in turn, would have a chilling effect on the free and public debate of various opinions.  It would also result in denying the electorate their Member’s real point of view by preventing access to full and frank information required to make a completely informed decision.”

 

[44]      The Tribunal did not accept these arguments for various reasons.

 

[45]    First, it cited the Supreme Court of Canada conclusion in Bell Canada v. Canadian Telephone Employees Association [2003] 1 S.C.R. 884, that the Canadian Human Rights Tribunal “had a high degree of independence from the executive branch”.  The Tribunal concluded, “In our opinion, given this finding of the Supreme Court, to treat the Tribunal as an arm of “the Government” for the purposes of this case is highly questionable.” 

 

[46]      Second, the Tribunal acknowledged Justice Binnie’s words at paragraph 21 in Vaid, above, that each branch of government, (the executive, the legislative and the judicial) “is vouchsafed a measure of autonomy from the others” and “Parliamentary privilege is one of the ways in which the fundamental constitutional separation of powers is respected.”  [Emphasis mine]

 

[47]      The Tribunal also quoted from Justice Binnie’s words at paragraph 20 in Vaid, above, 

“…nor is doubt thrown by any party on the need for its legislative activities to proceed unimpeded by any external body or institution, including the courts. It would be intolerable, for example, if a Member of the House of Commons who was overlooked by the Speaker at question period could invoke the investigatory powers of the Canadian Human Rights Commission with a complaint that the Speaker’s choice of another Member of the House discriminated on some grounds prohibited by the Canadian Human Rights Act, or to seek a ruling from the ordinary Courts that the Speaker’s choice violated the Member’s guarantee of free speech under the Charter.  These are truly matters “internal to the House” to be resolved by its own procedures…”  [Emphasis mine].

 

[48]     The balance of Justice Binnie’s words in this paragraph which the Tribunal did not quote is:

“Quite apart from the potential interference by outsiders in the direction of the House, such external intervention would inevitably create delays, disruption, uncertainties and costs which would hold up the nation’s business and on that account would [page 681] be unacceptable even if, in the end, the Speaker’s rulings were vindicated as entirely proper.” [Emphasis mine]

 

[49]      The Tribunal interpreted the thrust of Justice Binnie’s comments as:

“There is no doubt that statements made by a Member in the House constitutes an inherently legislative function that is subject to the immunity associated with Parliamentary privilege.  No outside authority may interfere with this activity either. But as we have already stated, Parliamentary privilege does not attach to statements in householders that are distributed to constituents.  In our opinion, this situation is not analogous to the example given by the Supreme Court in Vaid, supra…”  [Emphasis mine]

 

[50]     Third, nor, in the Tribunal’s opinion, was the situation before it, analogous to the fact situation in the Federal Court of Appeal’s decision in Taylor v. Canada (Attorney General),  [2000] 3 F.C. 3, a case in which a human rights complaint under the CHRA had been filed against a judge of the then Ontario Court, (General Division).  The judge, in that case, had allegedly ordered the complainant, who was seated in his courtroom, to remove a headdress that he wore as part of his religious practice.  In the Tribunal’s view, the Federal Court of Appeal in Taylor above held that “the principle of judicial immunity applied so as to prevent human rights proceedings against judges from being brought before the Commission and ultimately, the Tribunal.  It continued “the principle of judicial immunity exists to ensure that judges can perform their duty with complete independence and free from fear.” 

 

[51]     The Tribunal referred to Dr. Pankiw’s submission that just as the principle of judicial independence must be protected so must that of the legislative branch.  The Tribunal distinguished Taylor on the factual context noting the Federal Court of Appeal said “the orders for the control of order or decorum in the court room during the course of a trial fall within the inherent jurisdiction of the court and that the judge had engaged in a purely judicial act to which judicial immunity attached” [Emphasis mine]

 

[52]      Fourth, the Tribunal distinguished the case before it from that of Ontario (Speaker of the Legislative Assembly) v. Ontario (Human Rights Commission) (2001), 54 O.R. (3d) 595, decided by the Ontario Court of Appeal.  

 

[53]      In that case, a human rights complaint was filed with the Ontario Human Rights Commission in which it was alleged that the daily recital of the Lord’s Prayer by the Speaker of the Ontario Legislature was in breach of the Ontario Human Rights Code. In the Tribunal’s view of that case, “the issue was whether the daily recital of the Lord’s Prayer was a matter inherently related to the conduct of proceedings within the legislature.  The Court found this to be the case and therefore the Code did not apply because of the parliamentary immunity.”

 

[54]      The Tribunal concluded its ruling on this point with the following statement: 

“Finally, we would also note that although the Supreme Court in Re: Alberta Legislation, emphasized the importance in our democracy of maintaining free public opinion and discussion, these rights are not absolute.  The Court recognized that these values are subject to legal limits, such as the provisions of the Criminal Code and the common law.  The Charter and the CHRA equally impose legal limits on free public opinion and discussion.” [Emphasis mine]                                   

 

3. Analysis

 

(a) Standard of Review

 

 

[55]     In this case, the standard of review of the Tribunal’s findings is correctness.  This was the standard adopted by my colleague Justice Tremblay-Lamer in Canada (House of Commons) v. Vaid [2002] 2 F.C. 583 when she reviewed the Tribunal’s finding it had jurisdiction over the House of Commons and the former Speaker and it had statutory jurisdiction over the applicant. 

 

[56]     In coming to this conclusion on the standard of review, Justice Tremblay-Lamer relied upon the Supreme Court of Canada’s decision in Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554 to the effect curial deference does not extend to findings of law in which the Tribunal had no particular expertise.  She also relied upon the Ontario Court of Appeal’s decision in Ontario (Speaker of the Legislative Assembly) v. Ontario (Human Rights Commission), above, where Justice Finlayson found no deference should be accorded “on an issue as fundamental as the decision of the Commission to assert jurisdiction over the activities of the Speaker.”    

(b) Preliminary legal observations

[57]     Based on Justice Binnie’s reasons in Vaid, above, I make the following preliminary observations which, in my view, provide the legal framework governing the analysis in this case.

 

[58]   First, at paragraph 29.1 he wrote: “Legislative bodies created by the Constitution Act, 1867 do not constitute enclaves shielded from the ordinary law of the land”, citing from the Supreme Court of Canada’s decision in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319 at pages 370-371, “the tradition of curial deference does not extend to everything a legislative assembly might do, but is firmly attached to certain specific activities of Legislative Assemblies, i.e., the so-called privileges of such bodies”, and further citing the U.K. Joint Committee on Parliamentary privilege that “privilege does not embrace and protect the activities of individuals whether members or non-members, simply because they take place within the precincts of Parliament.” [Emphasis mine]  

 

[59]     Second, at paragraph 29.3, he wrote, “Parliamentary privilege does not create a gap in the general public law of Canada but is an important part of it, inherited from the Parliament at Westminster by virtue of the preamble of the Constitution Act, 1867 and in the case of the Canadian Parliament, through section 18 of the same Act.”

 

[60]     Third, at paragraph 33, he drew a distinction between inherent versus legislated privilege pointing out “However, unlike the Provinces, the Federal Parliament has an express legislative power to enact privileges which may exceed those “inherent” in the creation of the Senate and the House of Commons, although such legislated privilege must not “exceed” those “enjoyed and exercised” by the U.K. House of Commons and its Members at the date of enactment.  He then cited section 18 of the Constitution Act, 1867 and, in the next paragraph wrote, “the immunity from external review flowing from the doctrine of privilege is conferred by the nature of the function (the Westminster model of parliamentary democracy) not the source of the legal rule, (i.e., inherent privilege versus legislated privilege)” concluding “Parliamentary privilege enjoys the same constitutional weight and status as the Charter itself.”   [Emphasis mine]

 

[61]     Fourth, he then referred to section 4 of the PCA stating at paragraph 35, “Parliament has conferred on the Senate and the House of Commons the full extent of privileges permitted under the Constitution.  In doing so, however, our Parliament neither enumerated nor described the categories or scope of those privileges except by general incorporation by reference of whatever privileges were “held, enjoyed and exercised by the U.K. House of Commons.” [Emphasis mine]

 

[62]     Fifth, he wrote at paragraph 36, “the main body of the privileges of our Parliament are therefore “legislated privileges” and according to section 4 of the PCA must be ascertained by reference to the law and customs of the U.K. House of Commons which are themselves composed of both legislated (including the Bill of Rights of 1689) and inherent privileges.”

 

[63]     Sixth, at paragraph 29.10, he identified the existence of categories or spheres of activity to which Parliamentary privilege relates as including freedom of speech, control by the Houses of Parliament over debates or proceedings in Parliament, disciplinary authority over members and non-members who interfere with the discharge of parliamentary duties stating, “such general categories have historically been considered to be justified by the exigencies of Parliamentary work.” [Emphasis mine]

 

[64]     Seventh, he said at paragraph 29.11, “The role of the courts is to ensure that a claim of privilege does not immunize from the ordinary law the consequences of conduct by Parliament or its officers and employees that exceeds the necessary scope of the category of privilege”, concluding at paragraph 29.12, “Courts are apt to look more closely at cases in which claims of privilege have an impact on persons outside the legislative assembly than those which involve matters entirely internal to the legislature.” [Emphasis mine]

 

[65]     Eighth, in elaborating on the analytical two-step process, the first inquiry is to look whether the existence and scope of the claimed privilege “is authoritatively established (either by British or Canadian precedent) and if so, “it ought to be accepted by a Canadian court without the need for further inquiry into its necessity”.  This result contrasts with the situation in the Provinces where legislated privilege, without any underpinning similar to section 18 of the Constitution Act, 1867, would likely have to meet the necessity test.” (See Vaid, above, at paragraph 37).  [Emphasis mine] 

 

[66]     Ninth, at paragraph 38, Justice Binnie stated, “nevertheless, while section 18 of the Constitution Act, 1867 provides that the privileges of the Canadian Parliament and its members should not “exceed” those of the U.K. our respective Parliaments are not necessarily in lock-step.  It seems likely that there could be “differences” consisting of Parliamentary practices inherent in the Canadian system or legislated in relation to our own experience, which would fall to be assessed under the “necessity” test defined by the exigencies and circumstances of our own Parliament.  This point would have to be explored if and when it arises for decision.”                                                                  

 

(c) Discussion and conclusions

(i) Parliamentary privilege in publications authored by an M.P.

 

[67]     In order to decide this issue, I embark upon the required analysis.  The first step asks whether the applicant, supported by the Speaker, has pointed to either British or Canadian authorities which authoritatively establish the existence of a parliamentary privilege granting a member of Parliament absolute immunity from outside review (the courts, administrative tribunals or the Crown) with respect to the content of that member of Parliament’s authorship and distribution of householders to constituents.

 

[68]     I reiterate the disadvantage the proponents of such immunity have placed this court by not putting into the record the impugned householder or any other householder authored and distributed by Dr. Pankiw. 

 

[69]     In my view, the proponents of the existence of such immunity have failed to demonstrate such a Parliamentary privilege. 

 

British authorities

[70]     The applicant and the Speaker rely upon two British cases: Davison v. Duncan (1857) 119 E.R. 1233 at 1234 and Wason v. Walter 1868, [1861- 1873] All E.R. 1005 at 114.

 

[71]     In my view, these two cases do not authoritatively establish the existence of a Parliamentary privilege in respect of publications authored by an M.P. and distributed to constituents.  Davison is the lead case.  Factually, this case involved a plaintiff suing for libel in connection with an article in a newspaper giving an account of what happened at a meeting of an Improvement Commission and the reporting of disparaging words spoken by some commissioners.    

 

[72]     The judges hearing the case made some remarks about the privilege which an M.P. might enjoy with respect to the sending of a copy of a speech he made in Parliament to his constituents.  Those remarks were obiter and, moreover, the privilege referred to was not an absolute immunity from outside review by the courts or tribunals but a qualified privilege found in defamation law.  Joseph Maingot is of the view this case does not support the existence of a Parliamentary privilege with respect to the sending of householders by an M.P. to his constituents, (see his remarks at page 47 of his book under the heading “Publication for the Information of Members’ Constituents”).  I might add in the 23^rd Edition (2004) of Erskine May’s Parliamentary Practice, no reference is made to this case.

 

[73]     The case of Wason v. Walter , above is closer to the case at hand as it concerned a libel action by an ordinary citizen who alleged he was defamed in a speech made in the House of Commons by an M.P. which was fairly and faithfully reported in the Times.  The Chief Justice of the Queen’s Bench Division stressed the importance of communications between an M.P. and his constituents as laying the ground work for the defence of qualified privilege in a libel action.   More specifically, the Chief Justice endorsed what had been said in Davison v. Duncan.  Again, this case is not one of absolute privilege in the Parliamentary context.

 

[74]     The Report of the Joint Committee on Parliamentary privilege of the United Kingdom Parliament does not support the existence of Parliamentary immunity to correspondence between an M.P. and his constituents for two reasons: such correspondence is not in connection with “proceedings in Parliament” and the exceptional protection granted by a Parliamentary immunity should remain confined to the core activities of Parliament unless a pressing need is shown for an extension.  The Joint Committee was of the view there was insufficient evidence of difficulty, at least at present, to justify so substantial in increase in the amount of Parliamentary material protected by absolute privilege (see Joint Committee Report, chapter 2, paragraphs 103 to 112).

 

[75]     I make another point.  What we are dealing here is not speech but a written publication authored by a member of the House of Commons, published by that member under the authority of the House and printed distributed free to constituents by way of public funds.  The problem is analogous, in my view, to that faced by the U.K. High Court in the seminal case of Stockdale v. Hansard (1839), 112 E.R. 1112 at 185-187 where the High Court did not recognize Parliamentary privilege flowing from a resolution of the U.K. House of Commons ordering the printing of a report on prisons which had been laid on the Table of the House which the plaintiff Stockdale alleged was libelous. The court felt no Parliamentary privilege was necessary for the publication outside of Parliament of such reports.  This case was countered by the enactment by the U.K. Parliament of the Parliamentary Papers Act of 1840 which provides more generally that proceedings, criminal or civil against a person for the publication of papers by order of either House of Parliament shall immediately be stayed on the production of a certificate verified by affidavit to the effect that such publication is by order or under the authority of either House of Parliament (see, Erskine May at page 100).  The PCA has enacted a similar legislated privilege in section 7 of that Act.                                                     

 

Canadian authorities

[76]     Turning now to a consideration of the Canadian authorities, counsel for the proponents of the immunity could not cite a case directly on point which authoritatively established an absolute immunity from court or tribunal review of allegedly disparaging remarks contained in a householder distributed by a federal legislator.

 

[77]     By analogy, counsel relies on the case of Roman Corp. Ltd. et al. v. Hudson’s Bay Oil & Gas Co. Ltd. et al. [1973] S.C.R. 820, affirming the Ontario Court of Appeal’s decision reported at (1971) 23 D.L.R. (3d) 292 upholding Justice Holden’s trial decision reported at (1971) 18 D.L.R. (3d) 134.  Roman Corp. had sued the Prime Minister of Canada and the Minister of Energy, Mines and Resources for inducing breach of contract, conspiracy to injure, intimidation and unlawful interference with economic interests grounded on statements made in the House of Commons by both of them and replicated at length in a telegram sent by the Prime Minister to the plaintiff and additionally grounded on a press release issued by the Minister which, in effect, reflected substantially what he had said in the House of Commons on two previous occasions. 

 

[78]     At trial, Justice Holden ruled the telegram and press release, although not communications made within the walls of the House of Commons, enjoyed the same privilege as if made in that chamber because they were only extensions of the statements made by the Prime Minister and Minister falling therefore within that privilege. The result was the paragraphs in the statement of claim referring to the statements in the press release and the telegram were struck.  Specifically, Justice Holden relied upon the Privy Council’s decision in A.-G. Ceylon v. de Livera [1963] A.C. 103 which concerned the interpretation of what constituted “acting in the capacity” of a member of the House of Representatives of Ceylon. 

 

[79]     In the Court of Appeal, Justice Aylesworth upheld Justice Holden’s reasoning and his reliance upon the A.-G. Ceylon case.  In his view, the issue turned on what is a “proceeding in Parliament” and he quoted with approval the following statements made by Viscount Radcliffe, at page 120 of the reported case:

“The words used in the Ceylon Bribery Act “in his capacity as such” have not presented themselves in that form to the House of Commons, although it is likely that they are themselves an echo of some words that appear in Erskine May’s Parliamentary Practice (see, for instance, the current 16^th edition of Erskine May, at pp.122, 124).  What has come under inquiry on several occasions is the extent of the privilege of a member of the House and the complementary question, what is a “proceeding in Parliament”?  This is not the same question as that now before the Board, and there is no doubt that the proper meaning of the words “proceedings in Parliament” is influenced by the context in which they appear in article 9 of the Bill of Rights (1 Wm. & M., Sess. 2, c.2); but the answer given to that somewhat more limited question depends upon a very similar consideration, in what circumstances and in what situations is a member of the House exercising his “real” or “essential” function as a member?  For, given the proper anxiety of the House to confine its own or its members’ privileges to the minimum infringement of the liberties of others, it is important to see that those privileges do not cover activities that are not squarely with a members’ true function.”

 

and again at p. 121:

 

“The most, perhaps, that can be said is that, despite reluctance to treat a member’s privilege as going beyond anything that is essential, it is generally recognized that it is impossible to regard his only proper functions as a member as being confined to what he does on the floor of the House itself.”  [Emphasis mine]  

 

[80]     Justice Aylesworth concluded “As members of the Cabinet, the respondents Trudeau and Greene are necessarily members of either of the House of Parliament with greatly enlarged functions and duties and such privileges as apply to the ordinary Member of the House apply equally to them.”  He continued “In my view, both of them were respectively discharging those “essential functions”, referred to by Viscount Radcliffe, in the dispatch of the telegram and in the press release in the former instance Trudeau was making good his word to the appellant Roman that the plaintiff would be informed of the guidelines to be decided by the Government as announced in the House the same day; in the press release the respondent Greene was announcing publicly, and for the benefit of the public, the guidelines implementing Government policy as previously announced in the House.  Accordingly, the actions of both respondents in this regard fell with “proceedings in Parliament””. 

 

[81]     In the Supreme Court of Canada, that court decided the case on grounds other than privilege “without dissenting from the views expressed in the courts below as to the privilege attached to statements made in Parliament.”

 

[82]     The Roman case was relied on by the defendant Ouellet in the case of re Ouellet No. 1 (1976) 67 D.L.R. (3d) 73, where the Minister of Consumer and Corporate Affairs had been held in contempt by a judge of the Superior Court of Québec for remarks the Minister made about him to two reporters.  That judge had issued an order for committal for criminal contempt the validity of which was contested by the Minister in a proceeding which was decided by Associate Chief Justice Hugessen, then of the Superior Court of Québec, who held that the absolute privilege enjoyed by a member of Parliament with respect to “proceedings in Parliament” did not extend to slanderous words spoken to a journalist outside the walls of the Chamber itself in the outer Government lobby, and the federal cabinet Minister was liable for contempt of court for words spoken in such circumstances if they constitute contempt.  He ruled the absolute privilege enjoyed by members of Parliament is to protect the function of Parliament, but that function does not require that press conferences given by members be regarded as protected from legal liability. 

 

[83]     Associate Chief Justice Hugessen noted absolute privilege “is a drastic denial of the right of every citizen who believes himself wronged to have access to the courts for redress and should not be lightly or easily extended.”  He continued by writing, “It is not the precinct of Parliament that is sacred, but the function and that function has never required that press conferences given by members should be regarded as absolutely protected from legal liability.”  [Emphasis mine]

 

[84]     Of the Roman case, he noted that the Supreme Court of Canada “expressly refrained from either agreeing or disagreeing with the views expressed by the Ontario Court of Appeal and the trial judge.”  He commented the Roman case:

“Can be easily distinguished from the case at bar.  As appears from the reports, the defendants Trudeau and Greene were doing no more, outside the House of Commons, than repeating and giving effect to a government policy which had previously been announced inside the House.  Nothing of the sort obtains here as the evidence indicates that the respondent was simply giving an interview to a journalist on a matter of public interest ….  There is nothing in the evidence to indicate that the matter had been discussed in the House of Commons or that there had been any previous announcements of government policy.  Assuming that the pronouncements of the Ontario Courts above cited are good law, I would not be prepared to extend them to every statement made by any member to the press on any matter whatsoever.”  [Emphasis mine]

 

[85]     He said the opinion that the views expressed by the Ontario Courts “give me great difficulty” for the reason they did not discuss or mention certain decisions and appear to run contrary to the Stockdale case, above.  He made reference to the de Livera case, above and stated reference to it “is misleading for that decision dealt with a statute which made it an offence to offer a bribe to a member “in his capacity as such member” and that the Privy Council “expressly recognized that the question of what are “proceedings in Parliament”, though clearly related, is a narrower one than that as to the functions or capacities of a member of Parliament as such.”  He concluded with the following words “Indeed it could hardly be otherwise.  A member of Parliament is clearly fulfilling his function as a member when he visits with or receives his constituents, opens fund drives, presides at local meetings, or carries out a number of other tasks but to pass from that proposition to the statement that all these activities are proceedings in Parliament is a step that I am not prepared to take.  Indeed it has been held that a provincial Premier who addresses a meeting of party-supporters does not even enjoy a qualified privilege.”  [Emphasis mine] 

 

[86]     Justice Hugessen’s decision was reviewed by the Québec Court of Appeal in Ouellet (Nos. 1 and 2) (1976) 72 D.L.R. (3d) 95.

 

[87]   Chief Justice Tremblay upheld Justice Hugessen’s decision.  He distinguished the Roman case which he characterized as one where “the plaintiff was appealing statements made by the Prime Minister of Canada and another Minister of the Crown in the Chamber announcing the intention of the government to propose legislation for the purpose of stopping the completion of a transaction … as well as a telegram sent repeating the statement.  He concluded by stating he could not admit the statement uttered outside the chamber constitutes “proceeding in Parliament””.   

 

[88]     I cite the decision of Justice Evans, Chief Justice of the High Court of Justice of Ontario in re Clark et al. and the Attorney-General of Canada (1997) 81 D.L.R. (3d) 33 a case in which the applicants, all members of the then Federal Progressive Conservative Party, brought an application in the Supreme Court of Ontario seeking a number of declarations with respect to the Uranium Information Security Regulations (the Regulations) promulgated under the Atomic Energy Control Act.  One of the issues in that case was whether, as members of Parliament, they could release to the media and to constituents information covered by the Regulations.  One of the declarations sought was that the Regulations do not prohibit the applicants or any member of the House of Commons from releasing or disclosing any such documents in the course and in furtherance of Parliamentary debate.

 

[89]      In that case, counsel for the applicants argued the members of Parliament were entitled to release the information to the press and members have the right to release the information to their constituents.  Chief Justice Evans rejected those arguments.  He stated:

“The privilege of the Member is finite and cannot be stretched indefinitely to cover any person along a chain of communication initiated by the member.  The privilege stops at the press.  Once the press have received the information, the onus falls on them to decide whether to publish.  They cannot claim immunity from prosecution on the basis of the Parliamentary privilege which protects the member releasing the information.  Whether they have a valid defence under the Regulations is another matter. Finally, the member does not have the right to release the information to anyone he chooses outside of Parliament.  The concept of “proceedings in Parliament” cannot be extended beyond all logical limits.  I am not satisfied the privilege enables the member to release the information to his constituents.  The concept of “proceedings in Parliament” cannot be extended to cover the information function of a member.  This is consistent with the ruling of the House of Commons in the Official Secrets Act.”  [Emphasis mine]               

 

[90]     In coming to this conclusion, Chief Justice Evans stated he had considered the U.K. authorities and the decision of the Courts in Roman Corp. Ltd, above, noting that Justice Holden quoted from 28 Hals (3^rd edition, at pages 457 -458) that an exact and complete definition of “proceedings in Parliament” has never been given by the courts of law or by either House and the comment made by Justice Aylesworth to the effect “that the modern judicial concept of the meaning and application of the phrase “proceedings in Parliament” is broader than had been the case in some instances in the past.”  If this be so, according to Chief Justice Evans, “certainly there would appear to be ample justification for it in the development of the complexities of modern government and in the development and employment in government business of greatly extended means of communication.”  He noted Justice Aylesworth’s comments that “both Messers Trudeau and Greene were discharging their “essential functions” in making the statement to the media and in sending the telegram.”        

 

[91]     In coming to the conclusion that the privilege of the member cannot be extended to information sent to constituents, the basis for his doing so was that he did not consider that “the real and essential functions of a member include a duty or right to release information to constituents” adding “the cases indicate that the privilege is finite and I would not be justified in extending the privilege to cover information released to constituents.”  [Emphasis mine]

 

[92]     I conclude the applicant and the Speaker have failed to point to any authoritative recognition of the existence of any parliamentary privilege with respect to the contents of householders authored by an M.P. of the Canadian House of Commons and distributed to constituents.  In the circumstances, I must engage in step two of the analysis to determine whether such immunity can be justified by the doctrine of necessity in the modern world in order to protect and ensure the ability of a federal legislator to vigorously do his/her job.  I conclude such necessity has not been demonstrated for the following reasons.

 

[93]     First, counsel for the applicant and the Speaker invoked the principle of democracy, the doctrine of the separation of powers, free political speech and section 2(b) of the Charter in support of his argument the tribunal lacked jurisdiction with respect to the content of householders.  In my view, in a very real sense, the arguments advanced in respect of those issues tend to be the same as would support those in favor of finding necessity justifies the claimed privilege.  As will be seen, I have determined those arguments have failed.  I conclude necessity for an absolute immunity is not justified by the principles or doctrines of democracy, separation of powers, free political speech or section 2(b) of the Charter.          

 

 

[94]     Second, from the reasons for judgment of then associate Chief Justice Hugessen in Ouellet No. 1 and those of Chief Justice Evans in Clark, above, it cannot be said the sphere of activity, the authorship and distribution of a householder by an M.P. to his constituents, as stated by the British Joint Committee Report on Parliamentary Privileges and adopted by Justice Binnie in Vaid, above, at paragraph 44 is so closely and directly connected with proceedings in Parliament that intervention by the courts would be inconsistent with Parliament’s sovereignty as a legislative and deliberative assembly.

 

[95]     Third, neither the House of Commons at Westminster nor its counterpart in Ottawa has considered absolute immunity over communications to constituents is necessary for the performance of legislative duties.  If such had been the case, section 7 of the PCA might have been amended to protect this sphere of activity via the statutory stay provided in subsection 7(3).

 

[96]     Fourth, further evidence of lack of necessity to immunize the content of householders from review by the courts or the Canadian Human Rights Tribunal flows from the fact that when the PCA was amended in 1991 to enhance the statutory scheme related to the Board first established in 1985, the application of the CHRA which was enacted in 1977 was not excluded.

 

[97]     Fifth, the proponents of the claimed privilege in this case refer to certain House of Commons proceedings involving householders where issues surrounding householders had been raised by members in that House.  In particular, counsel for the proponents relies on the Ontario Court of Appeal’s decision in The Honourable John Manley, in his capacity as Member of Parliament for Ottawa South, v Telezone Inc. et al. (2004) 69 O.R. (3d) 161 where Justice MacPherson looked favorably to rulings made by Speakers of legislative chambers in matters of the scope of Parliamentary privileges as follows:

“The views of the two Speakers are not binding on this court. However, given the experience and high reputation of these two parliamentarians, and in the context of a legal dispute that centres on the definition of a parliamentary privilege, it seems obvious that their careful and considered rulings should be accorded substantial respect. I do so.”     

 

[98]     As mentioned, the affidavit of Robert R. Walsh, Law Clerk and Parliamentary counsel of the House of Commons at paragraphs 7 and 8 refers to six instances where points of privilege had been raised in the House of Commons during 2005 alleging breaches of privilege relating to the franking privilege, householders and ten percenters and that in all cases, the Speaker determined that a prima facie case of breach of privilege was established with the result that, in four instances, the matter was referred in the usual manner to the House of Commons Standing Committee on Procedure and House Affairs for further consideration.  He also refers to the Speaker’s ruling on February 15, 2005 resolving the issue without referral to a Committee and, lastly, on the sixth point of privilege, raised on November 3, 2005, which related to the content of a particular householder, the matter was debated in the House over four sittings.            

 

[99]     In addition, the intervener’s record contained extracts of the journals of the House of Commons and the February 15, 2005 debates of the House of Commons. 

 

[100]     I examined the material put forward by the Speaker and make these observations:

§       The Speaker’s ruling on February 15, 2005 concerned a ten percenter and the contention that its distribution was not authorized by the appropriate Member of Parliament in terms of printing and franking;

 

§       On November 3, 2005 the Speaker issued a ruling finding a prima facie breach of privilege on a question raised by a Minister of the Crown concerning mailings of householders into his riding by several members of an opposition party.  The Minister of the Crown claimed that these householders sent into his riding contained false allegations;

 

§       The question of privilege raised on March 21, 2005 by an M.P. concerned a householder sent into his riding by an opposition party and whether the householder in question conformed to the guidelines regarding the content of householders and ten percenters; 

 

§       The Speaker also referred to two questions of privilege raised on May 3, 2005 concerning a householder which the M.P. had sent to constituents but into which had been inserted a reply card that appeared to have been sent as a ten percenter by another member as well as another complaint related to a question of privilege regarding franked mailing his constituents had received from a member in a neighborhood riding.              

 

[101]     I cannot conclude from these Speaker’s rulings that the House of Commons has asserted jurisdiction over the content of householders and has provided a remedy to an individual, not an M.P., who was aggrieved by what was printed. 

 

[102]     Finally, any delays, disruption and uncertainties caused by external intervention by a hearing before a Tribunal is minimized by the existence of other Parliamentary privileges such as no issuance of subpoenas against a member during a Parliamentary session.

 

(ii) Democracy, separation of powers and free political speech

[103]     Counsel for the applicant and the Speaker made a forceful over-arching argument the Tribunal’s jurisdiction to hear and determine complaints relating to members of Parliament carrying out their Parliamentary function in publishing and distributing householders to constituents would offend the principle of democracy in the Canadian Constitution in the context of an M.P.’s role in the House of Commons in the fulfillment of that democracy which is necessarily anchored or based on: (1) The necessity of free political speech and the cardinal role played by the electorate in regulating political speech, except speech that is criminal in nature and (2) The necessary separation of the Crown (the executive and its agencies, commissions and tribunals) and the courts from the role and functions of Members of Parliament and (3) The application of section 2(b) of the Canadian Charter of Rights and Freedoms, (the Charter).

 

[104]     As I see it, this argument rests on two distinct propositions: (1) The application and scope of the doctrine of the separation of powers in Canadian democracy; and (2) The importance of free political speech and its recognized limits.

 

[105]     In my view, these two arguments are necessarily linked to a number of elements, the first of which is the discussion about the scope and existence of Parliamentary privilege because the very purpose of Parliamentary privilege with the absolute immunity conferred from interference by the other branches of government is to provide the legislators in a Parliamentary democracy a necessary level of autonomy in order that those legislators can do their legislative work in dignity and with efficacy. 

 

[106]     Justice Binnie, in Vaid above, clearly stated at paragraph 21 that “each of the three branches of the State is vouchsafed a measure of autonomy”, and Parliamentary privilege is one of the ways “in which the fundamental constitutional separation of powers is respected.”  In other words, as Justice Binnie stated, the immunity provided by Parliamentary privilege is designed to protect the legislative function i.e., give the legislators in a Parliamentary democracy their required independence and exclusive jurisdiction to deal with issues arising from the recognized scope of categories of privileges based on the doctrine of necessity in order to shield the House of Commons and its members from the application of the ordinary laws governing the resolution of disputes.                              

 

[107]    In this context, the Supreme Court of Canada in Vaid and other courts have stressed the impact which Parliamentary privilege has on strangers to the House if the application of Parliamentary privilege affects those persons.  This is so because Parliamentary privilege is absolute and immunizes any relief which the ordinary law would provide to a stranger to the House who asserts to have been injured by Parliamentary conduct.  In this case before me, the nine complainants would be stripped of the prohibitions against discrimination which the CHRA contains, as well as the remedies it provides if Dr. Pankiw’s authorship and distribution to constituents of his October, 2003 householder breaches the statute. 

 

[108]    I add that Viscount Radcliffe in de Livera, above focused on the real and essential functions of a member in consideration of “the proper anxiety of the House to confine its own or its members’ privileges to the minimum infringement of the liberties of others” and because of this “it is important to see that those liberties do not cover activities that are not squarely within a member’s true functions.”  [Emphasis mine]

 

[109]     Another contextual factor is the status which the CHRA has attained.  As stated at paragraph 81 of Vaid above, the CHRA is a quasi-constitutional document and “we should affirm that any exemption from its provisions must be clearly stated”, and in terms of the application of the CHRA to employees of Parliament, examining the language of section 2 of that Act there is no indication that it was not intended to extend to employees of Parliament and in the words of Justice Binnie “there is no reason to think that Parliament “intended” to impose human rights obligations on every federal employer except itself.”

 

[110]     Finally, there is a linkage between Parliamentary privilege with its recognized category of freedom of speech and the guarantee of freedom of expression in section 2(b) of the Charter.  In New Brunswick Broadcasting Co. above, the Supreme Court of Canada held “the press freedom guaranteed by section 2(b) of the Charter did not prevail over Parliamentary privilege which was held to be as much part of our fundamental constitution arrangements as the Charter itself.  In matters of privilege, it would lie within the exclusive competence of the Legislative Assembly itself to consider compliance with human rights and civil liberties…” see paragraph 30 of Vaid, above.  [Emphasis mine]

 

[111]     Based on the contextual factors identified above, I cannot agree with the argument advanced by the counsel for the applicant and the Speaker that permitting the Tribunal to examine the complaints in respect to the contents of Dr. Pankiw’s householders would infringe the principles of democracy, separation of power and freedom of expression not justified under section 1 of the Charter for the following reasons.

 

[112]     First, it is settled law that Canada’s constitutional democracy operates with a respectful eye to the principle of the separation of powers which, in terms of the independence of the House of Commons and its members, finds its enforcement mechanism in the recognition of the existence and scope of the Parliamentary privilege related to free speech whose manifestation was expressed, in the U.K., in the Bill of Rights, 1689 and , in Canada, in this case, in the legislated privilege enacted under section 7 of the PCA related to civil or criminal proceedings based on the publication of  “any report, paper, votes or proceedings by or under the authority of the Senate or the House of Commons.”  I repeat my concern here that the court was not informed of the content of the householder in question or given any evidence on other householders.

 

[113]     In my view, the doctrine of the separation of powers would not be infringed by having the Tribunal review the householder in question.  I say this because I have determined there is no judicial authority recognizing the existence of Parliamentary immunity over constituent information sent by an M.P. nor would the existence of such immunity be necessary for the proper functioning of the deliberative and legislative activities of a member of Parliament. 

 

[114]     Moreover, householders are not covered by the legislated privilege created under section 7 of the PCA.  If it had been so, the Speaker would have issued a certificate which would have stayed the Tribunal’s investigation.  This is the view expressed by Mr. Maingot at page 74 of his book, above. 

 

[115]     Second, having found no Parliamentary privilege to immunize the Tribunal’s investigation of the householder in question, there is therefore scope for the operation of section 2(b) of the Charter which would not be the case if the householder had been covered by Parliamentary privilege.  The question then is whether the Tribunal’s jurisdiction to investigate complaints violates the guarantee of section 2(b) of the Charter which provides for the fundamental freedom of “thought, belief, opinion and expression, including freedom of the press and other media of communication.”

 

[116]     There can be no doubt freedom of expression is the lifeblood of a democratic constitution such as Canada’s.  This proposition has been recognized many times by our highest courts and I need only refer to the decision of the Supreme Court of Canada in Re Alberta Legislation, above, where Chief Justice Duff stated:

“….  The statute contemplates a parliament working under the influence of public opinion and public discussion. There can be no controversy that such institutions derive their efficacy from the free public discussion of affairs, from criticism and answer and counter-criticism, from attack upon policy and administration and defence and counter-attack; from the freest and fullest analysis and examination from every point of view of political proposals. This is signally true in respect of the discharge by Ministers of the Crown of their responsibility to Parliament, by members of Parliament of their duty to the electors, and by the electors themselves of their responsibilities in the election of their representatives.”

 

[117]    Having said this, there is always a balance to be achieved because there are limits to free political speech.  At the same page, Chief Justice Duff continued by writing as follows:

“The right of public discussion is, of course, subject to legal restrictions; those based upon considerations of decency and public order, and other conceived for the protection of various private and public interests with which, for example, the laws of defamation and sedition are concerned.  In a word, freedom of discussion means, to quote the words of Lord Wright in James v. Commonwealth “freedom governed by the law” and [Emphasis Mine]

 

Chief Justice Duff closed with the following words:

 

“Even within its legal limits, it is liable to abuse and grave abuse, and such abuse is constantly exemplified before our eyes, but it is axiomatic that the practice of this right of free public discussion of public affairs notwithstanding its incidental mischief the breath of life for Parliamentary Institutions.”

 

 

[118]     Our highest court, before and after the advent of the Charter, always recognized the wide

scope to be given to the concept of freedom of expression particularly free political speech but always within recognized limits.  I cite the following cases:

·      Switzman v. Elbling [1957] S.C.R. 285, concerning the Padlock Law enacted by the Québec Legislature.  The Supreme Court of Canada found the law ultra vires of the legislative powers of the province under section 92 of the British North America Act. Several of the judges took the opportunity to comment on the importance of political expression in Parliamentary democracy and that this constitutional fact had to be balanced within certain limits.  Rand, J. held “the body of discussion is indivisible apart from the incident of criminal law and civil rights and incidental effects of legislation in relation to other matters, the degree and nature of its regulation awaiting future consideration.”  (see page 307) and Abbott J. emphasizing the importance of political speech going so far that Parliament itself could not abrogate the right of discussion and debate and that that power of Parliament to limit it was restricted to such powers as may be exercised under its exclusive legislative jurisdiction with respect to criminal law and to make laws the for the peace, order and good government of the nation. 

·      R v. Keegstra [1990] 3 S.C.R. 697 a case involving a provision of the Criminal Code prohibiting the willful promotion of hatred against identifiable groups.  The court held this activity was protected by section 2(b) of the Charter on the basis that it was an activity which conveyed or attempted to convey a meaning through a non-violent form of expression and therefore constituted expressive content and fell with the scope of the word “expression” as found in the guarantee under section 2(b) of the Charter.  However, the Criminal Code prohibition constituted a reasonable limit upon the freedom of expression therefore justified under section 1 of the Charter meeting the three-part test in R. v. Oakes [1986] 1 S.C.R. 103. 

·      Canada (Human Rights Commission) v. Taylor [1990] 3 S.C.R. 892 released the same day as Keegstra, above.  The Supreme Court of Canada upheld the constitutionality of section 13(1) of the CHRA prohibiting telephone messages likely to expose a person or a group of persons to hatred or contempt.  It reasoned in a fashion similar to Keegstra, above, holding the messages fell within the meaning of the word “expression” in section 2(b) of the Charter but that the prohibition in subsection 13(1) constituted a reasonable limit justified in a free and democratic society.

·      R. v. Sharpe [2001] 1 S.C.R. 45, a case involving an accused who was charged with two counts of possession of child pornography under a provision of the Criminal Code.  In this case, the Crown conceded that the provision infringed section 2(b) of the Charter but argued the infringement was justifiable under section 1 of the Charter.  The Supreme Court agreed and the charges were remitted for trial. 

·      Harper v. Canada (Attorney General) [2004] 1 S.C.R. 827 which concerned third party spending provisions under the Canada Elections Act.  The Supreme Court was unanimous in finding that these provisions violated political speech guaranteed by section 2(b) of the Charter.  Both the judgement written by the Chief Justice and the one written by Justice Bastarache for the majority emphasized the importance of political speech.  The Chief Justice wrote that “political speech was the single most important and protected type of expression and lies at the core of the guarantee of free expression.”  Bastarache J. held that third party advertising was political expression and quoting the Chief Justice in Keegstra, above reiterated that the connection between freedom of expression and the political process was perhaps the lynch pin of the section 2(b) guarantee and the nature of this connection was largely derived from Canadian commitment to democracy.  Where the minority and majority split was whether the advertising limit was justifiable under section 1 the majority so finding.     

 

(iii)  The exclusive jurisdiction of the Board of Internal Economy

 

[119]     I do not accept the argument put forward by counsel for the applicant and the Speaker that the exclusive authority of the Board of Internal Economy “to determine whether any previous, current or proposed use by a member of the House of Commons of any funds, goods, services or premises made available to that member for the carrying out of Parliamentary functions is or was proper” ousts the tribunal’s jurisdiction over the content of householders.  I reach this conclusion for the following reasons. 

 

[120]     First, the cases of Bernier and Fontaine, above, decided in the first one by the Ontario Court of Appeal and in the second one by the Québec Court of Appeal are on point.  Those cases decided that the Board’s exclusive jurisdiction to determine the proper use of funds did not oust the criminal jurisdiction of the courts of common law.  The two courts held that the functions of the Board did not overlap with those of the court since the authority of the Board was limited to determine, from an administrative and financial perspective, whether the use of funds by an M.P. was proper in light of the Board’s Bylaws.  By analogy, it is clear the functions of the Tribunal is different than that of the Board.  The Tribunal examines whether discrimination has occurred in certain specified situations and, if so, provides a remedy.  (see, in particular, paragraph 34 in Fontaine, above).                  

 

[121]     Second, the administrative scheme provided for under the PCA in terms of the Board’s powers and remedies does not compare at all to the statutory scheme related to PESRA the Supreme Court of Canada had before it in Vaid.  In particular:

1.  The PCA does not confer upon the Board jurisdiction over the complainants but rather its only jurisdiction is over a member of the House of Commons and the staff of the House (see, section 52.3 of the PCA);

 

2.  The PCA does not apply to the subject-matter of the complaints filed with the Commission and referred by it to the Tribunal.  Those complaints relate to the content of Dr. Pankiw’s householder and the allegation is that some or part of the content of that householder was discriminatory;

 

3.  The Board cannot provide an adequate remedy to the complainants.  If Dr. Pankiw breached the privileges of the House, and in particular, bylaw 102, it would appear the only remedy the House may provide is in respect of him as a member, (see, Appendix C, bylaw 102, paragraph 8- contravention).               

 

[122]     I conclude that the PCA nor the Board’s Bylaws oust the investigative and dispute resolution machinery of the Canadian Human Rights Act on the facts of this case.   

 

(iv)    Is the sending of a householder a “service” as contemplated by the Statute?

[123]     The issue of whether the distribution of a householder is a “service” under sections 5 and 14 of CHRA or falls within its section 12 was raised in the applicant and the Speaker’s notice of motion.  At the hearing of the motion, the Tribunal indicated that it would first deal with the House of Common’s arguments on privilege, separation of powers and freedom of expression and that the arguments on whether the complaints fall under sections 5, 12 or 14 would be dealt with at a later stage.

             

[124]     I agree with counsel for the Commission, the argument put before the court by the applicant and the Speaker is premature in that there is no ruling on this issue and there is nothing for this court to review at this stage.  I agree with his suggestion this argument should be dismissed on the basis of prematurity and can be raised at a subsequent stage by any of the parties before the Tribunal.         

 

(v)                Do Dr. Pankiw’s activities fall within the scope of the CHRA?           

[125]     Dr. Pankiw did not strongly press the argument that his activities do not fall within the scope of the CHRA. 

 

[126]     I agree with the Tribunal’s reasoning based on section 2 of the CHRA which provides that the purpose of that Act is to give effect, “within the purview of matters coming within the legislative authority of Parliament” to the principles of equal opportunity elaborated therein and that the statutory language of the CHRA is broad enough to encompass statements made by members in householders published and paid for by the House of Commons, pursuant to an Act of Parliament, the PCA.            

JUDGMENT

 

This judicial review application is dismissed with costs payable by the applicant and the intervener to the Respondent in a manner allocated between them by agreement, or in the event of a dispute on such allocation, in a manner determined by the Court.  

 

 

APPENDIX A

 

 

APPENDIX B

 

 

APPENDIX C

 

1.  BY-LAWS OF THE BOARD OF INTERNAL ECONOMY

BY-LAW 101- DEFINITIONS                                                                    

 

Parliamentary Functions

Means duties and activities related to the position of member of the House of Commons wherever performed and includes public and official business, and partisan matters, but does not include the private business interests of a Member of a Member’s immediate family; 

 

2.  BY-LAW 102, GENERAL LIMITATION AND APPLICATION BY-LAW

 

 

 

3.  BY-LAW 301, MEMBERS’ OFFICES BY-LAW 

 

 

APPENDIX D

 

Members’ allowances and Services Manual

 

(a) PRINTING SERVICES

Members are provided with the following Printing Services at House Administration expense:

Consultation, planning and production of:

Householders, ten percenters, personalized stationery and business cards (maximum of 2,000); bulk photocopying, including up to 10 copies of committee transcripts; and binding.  

 

(b) HOUSEHOLDERS

Householders are printed materials sent by Members to inform their constituents about parliamentary activities and issues.  Members are entitled to print and mail up to four householders per calendar year three between January 1 and October 15, and one between October 16 and December 31 each year.  There must be a 30 calendar day interval between householders submitted between January 1 and October 15. [Emphasis mine]

 

Unused householder allocations cannot be carried over to a subsequent period or year.

 

For each householder, the quantity produced at House Administration expense cannot exceed the total number of residential, rural and business householders and Canadian Armed Forces military personnel registered as electors in the Members’ constituency.  Members who require additional copies may have them printed and mailed as a charge to their Member’s Office Budget.

 

Postage for additional householder mailings is subject to the preferred bulk rare set by Canada Post and is chargeable to the Member’s Office Budget.  This preferred rate is available to Members only when items are posted from the House of Commons Postal and Distribution Services Office.  When posted elsewhere by Members, items are subject to the prevailing regular postal rates.  For a list of current rates, see the Appendix: Schedule of Rates located in the Budgets chapter.

 

The Board of Internal Economy approves householder colors and formats.  For further information, contact Printing Services.

 

(c) TEN PERCENTERS

Ten percenters are printed or photocopied material reproduced in quantities not exceeding 10% of the total number of householders in a Member’s constituency.  Quantities exceeding that amount will be considered householders and will be deducted from the Member’s householder allowance.

 

Each ten percenter is produced in black and white and must have a 50% difference in textual content from other ten percenters produced.  Each document may be printed only once per fiscal year, must originate with the Member and have the Member’s name on it.

 

 

 

FEDERAL COURT

 

NAME OF COUNSEL AND SOLICITORS OF RECORD

 

 

 

DOCKET:                                          T-1329-05

 

STYLE OF CAUSE:                          JIM PANKIW

and

CANADIAN HUMAN RIGHTS COMMISSION ET AL.

 

PLACE OF HEARING:                    Ottawa, Ontario

 

DATE OF HEARING:                      June 26 & 27, 2006

 

REASONS FOR JUDGMENT 

AND JUDGMENT:                          LEMIEUX J.

 

DATED:                                             December 21, 2006

 

 

APPEARANCES:

 

Mr. Steven Chaplin & Ms. Melanie J. Mortensen	FOR THE APPLICANT & THE INTERVENER
Mr. Philippe Dufresne	FOR THE RESPONDENTS

 

SOLICITORS OF RECORD:

 

Office of the Law Clerk and Parliamentary Counsel, House of Commons	FOR THE APPLICANT
Canadian Human Rights Commission	FOR THE RESPONDENTS