Date: 20060512
Docket: T-460-06
Citation: 2006 FC 596
Ottawa, Ontario, May 12, 2006
PRESENT: The Honourable Mr. Justice
Harrington
BETWEEN:
ROBERT GILLES
GAUTHIER cob
THE NATIONAL
CAPITAL NEWS CANADA
Applicant
and
The Honourable
PETER ANDREW MILLIKEN, SPEAKER OF THE HOUSE OF COMMONS; ROBERT RUMSLEY WALSH,
PARLIAMENTARY LEGAL COUNSEL, HOUSE OF COMMONS; The Honourable VIC TOEWS,
MINISTER OF JUSTICE
AND ATTORNEY
GENERAL OF CANADA; The Honourable PETER MACKAY, MINISTER OF FOREIGN AFFAIRS
CANADA; KEVIN LYNCH, CLERK OF THE QUEEN’S PRIVY COUNCIL OF CANADA AND SECRETARY
TO THE CABINET;
The Honourable
SUZANNE HURTUBISE, MINISTER OF INDUSTRY CANADA; SHERIDAN SCOTT, COMMISSIONER OF
COMPETITION; ELISABETH EID, LEGAL COUNSEL, HUMAN RIGHTS SECTION, DEPARTMENT OF
JUSTICE CANADA;
JOHN SIMS, DEPUTY
MINISTER OF JUSTICE AND DEPUTY ATTORNEY GENERAL
OF CANADA;
THE CANADIAN PARLIAMENTARY PRESS GALLERY INC.;
THE CANADIAN BAR
ASSOCIATION; and THE LAW SOCIETY OF UPPER CANADA
Respondents
REASONS FOR ORDER
AND ORDER
[1]
In
1999, Mr. Gauthier obtained “views” from the Human Rights Committee of the
United Nations. Earlier this year, he applied for registration, recognition and
enforcement of those “views” as a foreign judgment. Prothonotary Tabib
dismissed the application on two grounds. She held that the “views” were not a
foreign judgment or arbitral award contemplated by Rule 326 and following of
the Federal Courts Rules, and that in any event the Federal Court did
not have jurisdiction over Mr. Gauthier’s alleged cause of action.
[2]
Mr.
Gauthier’s complaint to the United Nations stems from the fact that the Speaker
of the House of Commons failed to give him, as a newspaper publisher and
reporter, the same privileged access to the precincts of Parliament enjoyed by members
of the Parliamentary Press Gallery, a private association which denied him full
membership. These are the reasons why I have dismissed his appeal.
BACKGROUND
[3]
It
began when the Ottawa Journal ceased publication in 1982. The nation’s capital
was left with only one English language daily newspaper, The Ottawa Citizen.
Mr. Gauthier thought this inappropriate and started The National Capital
News, which he never quite managed to publish on a daily basis. It is long
defunct.
[4]
This
case is but another episode in Mr. Gauthier’s running battle with the Speaker
of the House of Commons and the Parliamentary Press Gallery. It seems the
Speaker extends special privileges to members of the press, but leaves the
matter of accreditation to the Gallery. Mr. Gauthier was granted temporary
membership from time to time, but never full membership. He believes his
ability to report the news is hampered because temporary membership only gave
him limited privileges. The Gallery consistently denied him full membership in
the past. Now he says he would not join them even if they asked, because their
standards are lower than his. He wants equal access to Parliament on the same
basis as those reporters and publishers who have full membership in the
Gallery.
[5]
The
Speaker of the House has consistently taken the position that the granting of
special press access is a Parliamentary privilege and that the manner in which
it is exercised is beyond the reach of the Courts. Although not before me, it
appears that the Press Gallery will not give Mr. Gauthier full accreditation
because he is neither an active journalist nor a publisher. In 1994, Mr.
Gauthier sought a declaration from the Ontario Court (General Division) that
the denial of access to the precincts of Parliament on the same terms as
members of the Press Gallery infringed on his right to freedom of the press as
provided in the Charter of Rights and Freedoms. In Gauthier v. Canada
(Speaker of the House of Commons), 25 C.R.R. (2d) 286, Justice Bell held that
the Speaker’s decision to deny him access to the facilities in the House of
Commons used by members of the Press Gallery was an exercise of Parliamentary
privilege and not subject to the Charter or to judicial review.
[6]
He
then took action in the Ontario Courts against the Press Gallery. He sought
damages and a court order requiring it to admit him as an active member with
full privileges. The Press Gallery moved for summary judgment dismissing the
action. Justice Chadwick, in Gauthier v. Canadian Parliamentary Press
Gallery, [1996] O.J. No. 10 (QL), granted the motion and dismissed the
action on the basis that the privileges that Mr. Gauthier sought were
privileges administered and controlled by the Speaker of the House of Commons.
Undaunted, Mr. Gauthier complained to the Competition Tribunal. That claim
worked its way up to the Federal Court of Appeal. In Gauthier (c.o.b. National
Capital News Canada) v. Canada (House of Commons) 2004 FCA 27, [2004]
F.C.J. No. 83 (QL), Justice Nadon, speaking for the Court, found the
Competition Tribunal was correct in concluding that by reason of Parliament’s
privilege to control access to the House of Commons and its precincts and to
regulate its internal affairs, it was without jurisdiction. He also held that
the issues before the Court were res judicata in that they had
already been decided against Mr. Gauthier by Justice Bell in 1994, supra.
[7]
Now
Mr. Gauthier is attempting to do indirectly what he has been unable to do directly.
[8]
Before
the United Nations, he invoked the International Covenant on Civil and Political
Rights and the Optional Protocol thereto. Canada is signatory
to both. Article 19(2) of the Covenant provides:
Everyone shall have the right to freedom
of expression; this right shall include freedom to seek, receive and impart
information and ideas of al kinds, regardless of frontiers, either orally, in
writing or in print, in the form of art, or through any other media of his
choice.
[9]
Article
5(4) of the Protocol requires that: “The Committee shall forward its views to
the State Party concerned and to the individual.”
[10]
Canada responded to
Mr. Gauthier’s complaint saying amongst other things that he had not exhausted
domestic remedies. However, the Committee held:
14. The Human Rights Committee, acting
under article 5, paragraph 4, of the Optional Protocol to the International
Covenant on Civil and Political rights, is of the view that the facts before it
disclose a violation of article 19, paragraph 2, of the Covenant.
15. Under article 2, paragraph 3(a), of
the Covenant, the State party is under the obligation to provide Mr. Gauthier
with an effective remedy including an independent review of his application to
have access to the press facilities in Parliament. The State party is under an
obligation to take measures to prevent similar violations in the future.
ISSUES
1. Are the
“views” of the Human Rights Committee of the United Nations a judgment within
the meaning of Rule 326 and following of the Federal Courts Rules?
2. Does the
Federal Court nevertheless have jurisdiction over the subject matter of the
action?
ANALYSIS
[11]
Mr.
Gauthier advises that following the publication of the “views” of the United
Nations, he met with a representative of the Speaker but nothing concrete
materialized.
[12]
Rule
326 and following deal with the registration of judgments or arbitral awards
pursuant to four different Federal Statutes: The Marine Liability Act, the
Canada-United
Kingdom Civil and Commercial Judgments Convention Act, the United
Nations Foreign Arbitral Awards Convention Act, and the Commercial
Arbitration Code, schedule to the Commercial Arbitration Act.
[13]
It
is plain and obvious that the “views” do not fall within any of these four
Statutes.
[14]
Mr.
Gauthier seems to accept that holding, but suggests that the “views” must be
analogous. Where there is a right, there is a remedy, and surely the Federal
Court, which has jurisdiction over the “Crown” has the power to make things
right.
[15]
Just
two days before this motion in appeal of the Prothonotary’s order was heard, I
heard an application by a number of parties, including the Speaker, who were
named as defendants in another action taken by Mr. Gauthier for allowing the
televised leadership debates leading up to the last Federal Election to be
limited to the leaders of the four parties which had seats in the previous Parliament.
The motion on behalf of the Speaker to have the action dismissed for failure to
disclose a cause of action was granted. I held then that the Federal Court’s
jurisdiction over the Crown is a jurisdiction over the executive branch of
government, not Parliament (Gauthier v. The Honourable Peter Milliken et al.
2006 FC 570). There is no need to repeat myself.
[16]
In
addition there are a number of other fatal flaws. The “views” do not purport to
be a judgment, the Human Rights Committee of the United Nations does not
purport to be a Court. Thus, it is not necessary to consider the circumstances
in which the Court might entertain an action to enforce a foreign judgment, a
judgment which does not fall within the four corners of Rules 326 and
following, or whether the six year time bar prescribed in Section 39 of the Act
applies.
[17]
In
addition, the Speaker was not party to the proceedings at the United Nations.
[18]
As
noted by the Supreme Court in Canada (House of Commons) v.
Vaid,
[2005] 1 S.C.R. 667, once a claim to privilege is made out, the Courts will not
enquire into the merits of its exercise.
47 . . . If the claim of
privilege were justified, no court or body external to the House of Commons
could enquire into the appellant Speaker’s reasons for the
constructive dismissal of the respondent Vaid. Such outside bodies would
have no jurisdiction to do so. Nevertheless the courts are
required to determine the scope of the privilege claimed. …
[19]
It
was held in Vaid that Parliamentary privilege did not extend to dealings
with ordinary, non-legislative employees of Parliament. However, the right of
the Speaker to invite strangers into the House or to exclude them is well
established. If the Courts cannot interfere, neither can the United Nations.
The Covenant has not been incorporated into Canadian domestic law and is not
legally binding upon the Speaker. Ratification by Canada is not
equivalent to incorporation into our domestic law. See the decision of the
Ontario Court of Appeal in Ahani v. Canada (Attorney General) (2002) 58
O.R. (3d) 107, [2002] O.J. No. 90
(QL).
[20]
Mr.
Gauthier has no legal remedy. Of course, he can continue to try to persuade the
Speaker to change his mind. In A.O. Farms Inc. v. Canada (2000) 28
Admin. L.R. (3d) 315, [2000] F.C.J. No. 1771 (QL), Mr. Justice Hugessen said “…Government,
when it legislates, even wrongly, incompetently, stupidly, or misguidedly is
not liable in damages.” The same basic concept of judicial non-interference
applies to the manner in which the Speaker exercises the privileges of the
House. Mr. Gauthier may think what he likes, but he is not entitled to recourse
from this Court.
[21]
The
appeal will be dismissed with costs in favour of the “Crown” respondents.
ORDER
THIS COURT ORDERS that the
appeal from the order of Prothonotary Tabib dated 18 April 2006 is dismissed
with costs fixed at $750.
“Sean Harrington”
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