Knopf v. Canada (House of Commons), 2006 FC 808

Date: 20060626

Docket: T-770-05

Citation: 2006 FC 808

BETWEEN:

HOWARD P. KNOPF

Applicant

and

SPEAKER OF THE HOUSE OF COMMONS

and ATTORNEY GENERAL OF CANADA

Respondents

REASONS FOR JUDGMENT

LAYDEN-STEVENSON J.

[1]         Mr. Knopf claims that his language rights were infringed when a Parliamentary Committee refused to distribute reference documents, tendered in support of his submission to the Committee, on the basis that the documents were in English only. I have concluded that the essence of Mr. Knopf's complaint is that the Committee did not give sufficient consideration to his submission. Mr. Knopf's language rights were not violated and, in any event, the procedures of the Committee are protected by parliamentary privilege.

I. Facts

[2]         Mr. Knopf is an Ontario lawyer. Since his admission to the bar in 1980, his work has been primarily in the area of copyright law. On April 20, 2004, he appeared as a witness before the House of Commons Standing Committee on Canadian Heritage (the Committee). His testimony concerned matters related to copyright reform, the World Intellectual Property Organization (WIPO) treaty ratification and private copying. Before his scheduled appearance, Mr. Knopf sent four reference documents (supporting his position) to the Clerk of the Committee (the Clerk) and requested that they be distributed to the members of the Committee.

[3]         The Clerk received the documents and advised Mr. Knopf that they would be copied, but would not be distributed because they were in English only. The Clerk informed Mr. Knopf that a decision regarding the distribution of documents was a matter for the Committee. The Chair of the Committee decided not to distribute the documents to the members of the Committee. In so doing, the Chair followed the procedure adopted by the Committee at its first organizational meeting on February 24, 2004, specifically, that "the Clerk of the Committee be authorized to distribute to the members of the Committee documents only when they exist in both official languages".

[4]         The Committee released its Interim Report on Copyright Reform in May 2004. The Committee's first recommendation concerned the subject matter of Mr. Knopf's testimony. Mr. Knopf was not happy with the recommendation. On November 11, 2004, he filed a complaint with the Commissioner of Official Languages under section 58 of the Official Languages Act, R.S.C. 1985, c. 31 (4^th supp.) (OLA). By correspondence dated March 1, 2005, the Commissioner dismissed Mr. Knopf's complaint.

[5]         Mr. Knopf commenced this proceeding on May 2, 2005, and seeks a declaration and order pursuant to Part X of the OLA. More specifically, he requests:

(a)                 A declaration that his language rights as provided in the sections 16 and 17 of the Canadian Charter of Rights and Freedoms, [the Charter] enacted as Schedule B to the Canada Act 1982, (U.K.) 1982, c. 11, which came into force on April 17, 1982, and section 4 of the Official Languages Act were violated by the Standing Committee on Canadian Heritage (the "Committee") and its then Chair, the Hon. Sarmite Bulte, M.P. ("Mme Bulte") on April 20^th, 2004 when the said Committee through Mme Bulte ruled that the certain documents which the Applicant wished for the Committee to consider would not be distributed to Committee members because they not (sic) bilingual; and

(b)                A declaration that members of the public have the right, when appearing before a Committee of the House of Commons, to submit relevant documents in either official language for distribution to and consideration by Members of the Committee; and

(c)         An order that all committees of the House of Commons henceforth shall comply with the aforesaid provisions of the Official Languages Act and the Constitution Act by accepting, distributing and considering relevant documents in either official language for distribution to and consideration by Members of the Committee; and

(d)         An appropriate order as to costs, given the public interest nature of this Application and the important new principles raised herein, which are believed to have never been adjudicated by a Court. [Mr. Knopf reserved the right to make submissions with respect to costs].

[6]         At the hearing of this matter, Mr. Knopf requested, in relation to his requests for relief, that the word "consideration" in paragraph (b) and the words "considering" and "consideration" in paragraph (c) be deleted from his pleading.

[7]         The respondents, the Speaker of the House of Commons (the Speaker) and the Attorney General of Canada (the Attorney General), participated vigorously in this proceeding. Their respective positions will be delineated in due course.

[8]         It is common ground that the document-distribution practices of Parliamentary Committees vary. Some Committees distribute documents in the language in which the documents are submitted, before translation, while others distribute them only after the documents are available in both languages: see Robert Marleau and Camille Montpetit, House of Commons Procedure and Practice, (Ottawa: House of Commons, 2000) at pp. 849, 865 and 866.

II. The Nature of This Proceeding

[9]         For clarity, and before examining the positions of the parties, it is useful to review the procedure which brings this matter before the Court. Part X of the OLA is entitled "Court Remedy" and is comprised of sections 76 to 81. Section 76 defines "Court" as the Federal Court. Section 77, among other things, permits any person who has made a complaint in respect of a right under section 4 to apply to the Court for a remedy. The application, by virtue of subsection 77(2), may be made within 60 days after the results of the Commissioner's investigation of a complaint are reported to the complainant. Section 80 mandates that a section 77 application be heard and determined in a summary manner. Subsection 81(1) provides that costs of the application shall be in the discretion of the Court and, unless otherwise ordered, shall follow the event. Subsection 81(2) requires, in circumstances where the Court is of the opinion that an application under section 77 has raised an important new principle in relation to the OLA, that costs be awarded to the applicant, even if unsuccessful in the result.

[10]       In Forum des maires de la Péninsule acadienne v. Canada (Canadian Food Inspection Agency), [2004] 4 F.C.R. 276 (C.A.) (C.F.I.A.), the Federal Court of Appeal described the nature and scope of the remedy provided by Part X of the OLA. In the context of this matter, the propositions, derived from the reasons of the Court of Appeal and set out here, are instructive.

• Subsection 77(2) of the OLA provides for an application. The proceeding is not an application for judicial review, although it is governed procedurally by the rules applicable to applications. The application is instead similar to an action.

• The Commissioner is not a tribunal and does not, strictly speaking, render a decision. The Commissioner receives complaints, conducts an inquiry and makes a report that may be accompanied by recommendations.

• To ensure that the recognized rights or imposed obligations of the OLA are given force and effect, section 77 creates a remedy that a complainant may utilize.

• The remedy: (a) verifies the merits of the complaint, not the merits of the Commissioner's report; and (b) secures relief that is appropriate and just in the circumstances.

• The Commissioner's report is the pretext for the remedy or a precondition to the exercise of the remedy.

• The application under section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7 does not challenge the decision of a federal institution as such.

• There are important implications flowing from the fact that the Federal Court proceeding is similar to an action, namely:

(a)                 the judge hears the matter de novo;

(b)                a decision as to whether a breach of the OLA has occurred must be reached after the judge has heard and weighed the evidence advanced by both parties;

(c)                 the Commissioner's report is admissible in evidence but is not binding on the judge and may be contradicted like any other evidence; and

(d)                the remedy under section 77 of the OLA is limited to complaints based on the sections and parts of that Act.

Against this background, I turn to the positions of the parties.

III. The Positions of the Parties

[11]       There is evident diversity among the parties with respect to the delineation of the issues to be determined. Mr. Knopf claims that the issues are:

(a)                 whether he had the right, pursuant to either or both the Charter and the OLA, to submit documentation, that he deemed to be essential to support his testimony, for immediate distribution to Committee members in the only official language in which it was available;

(b)                whether having agreed to hear the testimony of a witness, the Committee has the right, based upon parliamentary privilege, or any other doctrine, to insist that documentation submitted by the witness not be immediately distributed to Committee members unless it is in both official languages, failing which it will not be distributed unless and until it has been translated;

(c)                 the appropriate remedy if a contravention of the relevant provisions of the Charter and the OLA is found to have occurred.

[12]       The Speaker identifies a number of issues. However, the thrust of the Speaker's submissions is to question whether, as a result of the parliamentary privilege of the House of Commons and its Committees to establish their own internal procedures free from interference from the Courts or other entities outside of Parliament, this (or any) Court has jurisdiction to intervene in this matter.

[13]       The Attorney General frames the question in terms of whether Mr. Knopf's right to express himself in the official language of his choice obliges a Committee of the House of Commons to circulate, to its members, documents presented in only one official language.

[14]       The parties' submissions, both written and oral, were detailed and extensive. A very distilled synopsis is outlined here.

A. Mr. Knopf

[15]       Relying upon section 4 of the OLA, which is "backed by the Charter and the Constitution", Mr. Knopf asserts that everyone is given the right to use either language in Parliamentary proceedings. He refers to subsections 17(1) and 20(1) of the Charter. He claims that the word "either" means "either"; it does not mean "both". The fact that the Preamble to the OLA is silent regarding the right of Parliament to receive documents in both official languages indicates Parliament's intention not to confer such a right.

[16]       Parliament is not exempt from the OLA. Therefore, no applicable privilege can be claimed. Absent the immunity of privilege, Mr. Knopf's language rights were violated. He contends that there is no authority to suggest that there has ever been a parliamentary privilege entitling Parliament to require the use of both official languages.

[17]       Only the individual or personal privileges of the Members of Parliament (MPs) were preserved by section 90 of the OLA. Had Parliament wished to preserve the so-called corporate privilege, it would have done so expressly. While not disputing that the Committee possesses the privilege to control its procedure and proceedings, Mr. Knopf insists that such privilege does not include control over the use of official languages. Nor can such control constitute an inherent privilege from Westminster in 1867 because Parliament in Westminster "did not have official languages policy on its brain".

[18]       Mr. Knopf argues that the refusal of the Committee to distribute the documents cannot be justified on the basis of necessity because some Committees do accept documents in either language. Further, to be well-informed and to do the job that they were elected to do, MPs should have access to the necessary documents, in either language, rather than not have any documents whatsoever. Mr. Knopf opines, "we don't want our legislators operating in vacuums". He maintains that the necessity for the privilege has not been established. The Speaker has asserted an overly broad claim of privilege. Even "a very clear privilege, the existence and scope of which seems to be unquestioned, surely, has limits".

B. The Speaker

[19]       The Speaker submits that the privilege at issue is the right or power of the House of Commons to establish its own rules of procedure and to conduct its business free from interference by the Courts or others. The subject of the application relates to a rule of procedure established and used by a Committee of the House of Commons with respect to its own proceedings. Committee proceedings are parliamentary proceedings for all purposes and, as such, enjoy the protection of the privileges of the House of Commons. Similarly, members of the Committee, as Members of the House of Commons, are carrying out parliamentary functions when they are engaged in the business of the Committee and, as such, enjoy all of their rights, immunities and privileges in conducting Committee business.

[20]       In accepting the Committee's invitation to make submissions, making his submissions, and tendering his documents, Mr. Knopf was participating in a parliamentary proceeding. The Committee has the exclusive jurisdiction, protected by parliamentary privilege, to deal, if at all, with information submitted to it during a parliamentary proceeding in any manner it deems appropriate. There is no jurisdiction in this Court, or any other Court or administrative decision maker, to make an order against the House of Commons, or one of its Committees, that would require it to amend its rules of procedure. The House of Commons and its Committees are the masters of their own procedure.

[21]       A unanimous Supreme Court in Canada (House of Commons) v. Vaid, [2005] 1 S.C.R. 667 (Vaid) confirmed the constitutional nature and basis for the parliamentary privileges of the House of Commons and its Members. It confirmed the jurisdictional boundaries between the Courts and the House of Commons, and confirmed the tests to be applied to determine the existence, extent and scope of parliamentary privileges.

[22]       The Speaker distinguishes between individual and corporate privileges. Individual privileges belong to each Member of a legislative assembly to ensure the proper performance of parliamentary duties. Corporate privileges (at issue here) are the collective privileges of each House (the Senate and the House of Commons) to punish for contempt, to legislate its own constitution, to regulate its internal affairs free from interference, to institute inquiries and call witnesses, and to settle its own code of procedure: see J.P. Joseph Maingot, Parliamentary Privilege in Canada, 2^nd ed. (House of Commons and McGill-Queen's University Press, 1997) at p. 12.

[23]       In Vaid, the Supreme Court described "control by the Houses of Parliament over 'debates or proceedings in Parliament'...including day-to-day procedure in the House" as one of the categories of privilege. Further, Erskine May, Parliamentary Practice, 23^rd ed. (London: LexisNexis Butterworths UK, 2004), the leading text on parliamentary privilege in the United Kingdom, describes the scope of this privilege, in relation to both Houses as "the exclusive cognizance of their own proceedings" closely related "to the claim to freedom of speech" (at p. 10). The Speaker asserts that the existence and broad scope of the parliamentary privilege of control by the House of its own proceedings has been repeatedly confirmed by the Courts of the United Kingdom and Canada, both before and after Confederation.

[24]       In addition to being clearly established, the privilege of the House and its Committees to control their own proceedings also meets the necessity test (the question being whether it is necessary that Committees of the House of Commons be able to establish their own rules of procedure). Necessity applies to categories of matters and the particular exercise of privilege within a category is not scrutinized against a standard of necessity.

[25]       In sum, the Speaker asserts that the determination of the existence and scope of the privilege is the domain of the Court. The exercise of the privilege is the domain of Parliament.

C. The Attorney General

[26]       First, the Attorney General takes issue with Mr. Knopf's reliance on subsection 20(1) of the Charter as an interpretive aid in construing subsection 17(1). The scope of the provisions is different and it is essential to distinguish between them in order to avoid the distortion of both. Subsection 17(1) refers to the individual right to participate in parliamentary proceedings in the official language of one's choice, while subsection 20(1) protects the public's right to communicate with and receive services in either official language from the institutions mentioned in that provision.

[27]       Relying on a plethora of authority from the Supreme Court of Canada, the Attorney General asserts that the Court has consistently held that section 133 of the Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5 (the Constitution Act) creates a scheme of unilingualism at the option of the speaker. The scheme enshrines the right of "any person" to express himself or herself in either English or French, at the option of the speaker, during parliamentary proceedings. The Court has further indicated that subsection 17(1) of the Charter should be interpreted in the same way as the guarantee of section 133 of the Constitution Act. Subsection 4(1) of the OLA is to the same effect. Beyond this, neither the OLA nor the Charter prescribes the form that the public's involvement in the debates or activities of the House of Commons must take.

[28]       To comply with the OLA, the House must simply permit Committee witnesses to express themselves in the official language of their choice. In this case, the Chair of the Committee permitted Mr. Knopf to testify in English and permitted him to tender documents in English. In so doing, the Committee of the House of Commons complied with its official languages obligations imposed by the Charter and by the OLA. No official languages issue arises for determination.

[29]       The Attorney General claims that, in reality, Mr. Knopf challenges the decision of the Committee Chair to refuse to distribute the reference documents that Mr. Knopf wished the members of the Committee to consider. Section 133 of the Constitution Act, subsection 17(1) of the Charter and subsection 4(1) of the OLA, however, create a right to expression. There is no right to have documents circulated to members of a Parliamentary Committee. The House of Commons has no statutory obligation to distribute any documents submitted by a witness.

[30]       Alternatively, the Attorney General submits that the Committees of the House of Commons are free to develop policies and procedures for dealing with their internal workings, including policies on the dissemination of materials received from the public. These areas have historically been protected by parliamentary privilege and are thus outside the scope of judicial review. Members of the public who participate in the work of a Committee do so within the terms and conditions set by Parliament or the Committee.

IV. Issues

[31]       I am satisfied that resolution of this matter can be achieved through determination of the following issues:

(a)                 whether Mr. Knopf's language rights were violated; and

(b)                whether parliamentary privilege applies to the proceedings of the Committee.

V. Language Rights

Relevant Statutory Provisions

[32]       For ease of reference, the relevant statutory provisions are reproduced here.

[33]       It is noteworthy that this application is premised on an alleged violation of language rights. Indeed, the proceeding is brought pursuant to the OLA. To address Mr. Knopf's language rights, two subsidiary questions must be answered. First, what is the scope of his language rights when appearing as a witness before the Committee? Second, what is the scope of the Committee's obligations to a witness who appears before it?

[34]       Subsection 4(1) of the OLA, in my view, protects an individual's right to use the official language of his or her choice. It does not dictate that an individual's interaction with the Committee should take any particular form.

[35]       The principles set out in the Constitution Act apply equally to section 17 of the Charter: Société des Acadiens du Nouveau-Brunswick Inc. v. Association of Parents for Fairness in Education, Grand Falls District 50 Branch, [1986] 1 S.C.R. 549 (Société des Acadiens) at pp. 574-575. Similarly, the language rights contained in section 4 of the OLA are considered to be a restatement of those set out in section 133 of the Constitution Act: Michel Bastarache ed., Language Rights in Canada, 2^nd ed. (Cowansville, Qc: Éditions Yvon Blais, 2004) at p. 92.

[36]       In MacDonald v. Montreal (City), [1986] 1 S.C.R. 460 (MacDonald), the Supreme Court, at page 496, describes the section 133 right as a form of "optional unilingualism, at the option of the speaker, in Parliamentary debates and, at the option of the speaker, writer or issuer, in judicial proceedings or processes". In short, an individual has the choice of addressing the House in either English or French. In the context of proceedings before Parliament, the word "use" provides Mr. Knopf with the right to speak in the official language of his choice. As mandated in MacDonald, it is not open to the Courts, under the guise of interpretation, to improve upon, supplement, or amend the right that is granted. See also: [1979] 2 S.C.R. 1016">Quebec (Attorney General) v. Blaikie, [1979] 2 S.C.R. 1016 at pp. 1022, 1030; [1981] 1 S.C.R. 312">Quebec (Attorney General) v. Blaikie, [1981] 1 S.C.R. 312 at pp. 332-333; Manitoba (Attorney General) v. Bilodeau, [1986] 1 S.C.R. 449 at pp. 445, 457; MacDonald at p. 483; Société des Acadiens at pp. 574-575; R. v. Mercure, [1988] 1 S.C.R. 234 at pp. 273-276; R. v. Paquette, [1990] 2 S.C.R. 1103 at p. 1104.

[37]       Mr. Knopf's right to speak in the official language of his choice is a fundamental one. The corollary obligation of Parliament and its Committees is to respect that right and not to infringe upon it.

[38]       The question then is whether Mr. Knopf's fundamental right, as provided for in subsection 4(1) of the OLA, was infringed. As the complainant, Mr. Knopf bears the onus of demonstrating that his right to speak to the Committee in the official language of his choice was not respected. He has not met that onus because the alleged "infringement" relates to a "right" that is not provided by the Act.

[39]       Mr. Knopf was entitled to speak to the Committee in the official language of his choice. That right was respected. Mr. Knopf's request that his documents be circulated did not fall within the parameters of the right enshrined in subsection 4(1) of the OLA. Rather, it was a challenge to the manner in which the Committee conducts its business. It was a challenge to the procedure adopted by the Committee regarding the distribution of documents. This is not, in my view, a language rights issue.

[40]       When reference is made to the specificity of Mr. Knopf's complaint, it is readily apparent that his quarrel is not in relation to language rights. His desire is that the Committee distribute, before its deliberations, documents that are, in Mr. Knopf's estimation, relevant. No language rights issue is engaged on this basis. He claims that Committee members are denied information that they require to properly do their jobs. No language rights issue is engaged on this basis. He maintains that the Committee ignored his submission and that this constitutes an affront to parliamentary democracy and its workings in our country. This is a political, not a language rights, issue.

[41]       In sum, the form of Mr. Knopf's complaint relates to language rights, but its substance relates to the Committee's procedure and its alleged failure to have regard to material that he submitted. His complaint is that the Committee did not give sufficient consideration to his submission. Again, this is not a language rights issue.

[42]       For the foregoing reasons, I conclude that Mr. Knopf's language rights, provided for in section 4 of the OLA, were not violated by the Committee. In view of this conclusion, it is not strictly necessary for me to address the issue of parliamentary privilege. However, because the arguments at the hearing focused almost exclusively on that issue, I will, for completeness, turn to the question of parliamentary privilege.

VI. Parliamentary Privilege

Relevant Statutory Provisions

[43]       The relevant statutory provisions are set out here.

[44]       Constitutionally, there is a separation of powers and responsibilities between the legislature, the executive and the judiciary: Vaid at paras. 4, 21; New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319 (New Brunswick Broadcasting) at 389. One of the ways in which the constitutional separation of powers and the functioning of the legislative branch is safeguarded is through the constitutional recognition of the privileges of the House of Commons and its Members: Vaid at para. 21; New Brunswick Broadcasting at pp. 378-379.

           

[45]       The cornerstone authority in relation to parliamentary privilege is Stockdale v. Hansard (1839), 9 Ad. & E.1 (Q.B.), 112 E.R. 1112. The first step of the inquiry will always be a determination of whether the privilege exists. As Lord Denman C.J. stated at p. 1168:

Where the subject matter falls within [Parliament's] jurisdiction, no doubt we cannot question their judgment; but we are now enquiring whether the subject matter does fall within the jurisdiction of the House of Commons. It is contended that they can bring it within their jurisdiction by declaring it so. To this claim, as arising from their privileges, I have already stated my answer: it is perfectly clear that none of these Courts could give themselves jurisdiction by adjudging that they enjoy it.

[46]       The most recent pronouncement on parliamentary privilege from the Supreme Court of Canada is found in Vaid. There, Mr. Justice Binnie, writing for a unanimous Court, synthesized the principles applicable to parliamentary privilege at paragraphs 28 and 29. Those paragraphs are attached to these reasons as Schedule "A". I need not repeat them here. Suffice it to say that if parliamentary privilege is found to exist, the Court is without jurisdiction.

[47]       Section 18 of the Constitution Act grants Parliament the power to make laws determining the extent of the privileges, immunities and powers of the Senate and the House of Commons. There is one caveat. Parliament cannot confer any privileges exceeding those held by the Commons House of Parliament of the United Kingdom in 1867. Through section 4 of the Parliament of Canada Act, R.S.C. 1985, c. P-1, Parliament has conferred, on the Senate and the House of Commons, the full extent of privileges permitted by the Constitution Act, but has not specifically enumerated or described the privileges, except through incorporation by reference. The law and customs of the U.K. House of Commons are comprised of both legislated rights and inherent privileges. The legislated rights originate with the Bill of Rights of 1689 (Bill of Rights (Eng), 1 Will. & Mar. sess. 2, c. 2), specifically Article 9. The general principles flowing from Article 9 have been recognized in Canada, including the principle that proceedings in Parliament are protected from being impeached or questioned in any Court or place outside of Parliament.

[48]       The threshold question for determination is whether the existence and scope of the claimed privilege has been authoritatively established in relation to our own Parliament or to the House of Commons at Westminster. If not, it will be necessary to test the claim against the doctrine of necessity: Vaid, paras. 39, 40, 54.

[49]       The party claiming the privilege bears the onus of establishing its existence. Here, the Speaker maintains that the distribution of documents relates directly to the right of the House, and by extension to its Committee, to establish its own rules of procedure and conduct its business free from interference. It goes to the internal operations of the Parliamentary Committee.

[50]       The right of the House to control its internal proceedings is a long recognized category of parliamentary privilege. Erskine May (referred to earlier) states that the right is fully established and that in settling or departing from its own procedure, the House can practically change or supersede the law. In New Brunswick Broadcasting, Madam Justice McLachlin (as she then was) accepted, as clearly established, that the ability to control internal proceedings is a necessary category of conduct attracting the constitutionally-entrenched protection of parliamentary privilege. Similarly, in Vaid, Mr. Justice Binnie specifically described one of the categories of privilege as being "control by the Houses of Parliament over 'debates or proceedings in Parliament'...including day-to-day procedure in the House". He dated the privilege back to the Bill of Rights of 1689.

[51]       Accordingly, I accept that the existence and scope of the claimed privilege has been authoritatively established.

[52]       Indeed, Mr. Knopf acknowledged, at the hearing of this application, the existence of a category of privilege "to control their own proceedings". The qualification, in Mr. Knopf's view, is that the scope of the privilege does not subsume language rights. However, I have already determined that the substance of Mr. Knopf's complaint is not founded on language rights. I find it anomalous that Mr. Knopf explicitly acknowledges the Committee's unfettered rights in terms of procedure, including "translation, schedules, timing, budget, witnesses and procedural steps", but not with respect to the circulation or distribution of documents.

[53]       It seems to me self-evident that the Committee has the absolute right to control its own process. That process would necessarily include the circulation or distribution of documents. It is inconceivable that the capacity to regulate day-to-day operations would not include what can only be described as a necessary incident to the exercise of that power: the right of the Committee to determine when, how or if documents are to be circulated or distributed to its members. Such determinations go to the very heart of "control of process".

[54]       However, lest I be mistaken in this respect, I will address the issue of necessity.

[55]       As a general rule, where a claim to privilege is established, the Court does not inquire into the merits of its exercise. The distinction between defining the scope of a privilege (the function of the Court) and the appropriateness of its exercise (a matter for the legislative assembly) may be difficult to draw in practice: Vaid at para. 47. Nonetheless, if the capacity to establish procedure for the circulation or distribution of documents is a proper category of privilege, it follows that Mr. Knopf's application is beyond the ambit of permissible review.

[56]       The determination of whether a sphere of activity constitutes a category of privilege is dependant upon the degree of connection between the claimed sphere of activity and the legislative and deliberative functions of Parliament. In the circumstances of this matter, in my view, it is indisputable that the Committee's control over its internal proceedings (including the reception and distribution of documents from witnesses or other outside sources) is intimately tied to its deliberative function. Absent the exclusive ability to determine how it will treat documentation, inefficiency could result from the delay and uncertainty that would inevitably accompany external intervention. For example, in this case, while the Committee released its interim report in May of 2004, the intervention requested by Mr. Knopf would occur some two years later and surely with its own attendant delays. In the words of Justice Binnie, "autonomy is therefore not conferred on Parliamentarians merely as a sign of respect but because such autonomy from outside is necessary to enable Parliament and its Members to get their job done": Vaid at para. 29, item 7.

[57]       Mr. Knopf claims that all Committees do not operate in the same fashion. This is not a relevant factor because it relates to the content of the privilege rather than its existence. Once the privilege is established, the Court will not generally inquire into its exercise: New Brunswick Broadcasting at pp. 383, 384.

[58]       Although no issue was taken with respect to the Committee, per se, in the event that there be any doubt as to whether the claimed privilege applies equally to Committees and to the House, I adopt the comments of Mr. Justice Cheverie in Canada (Attorney General) v. Prince Edward Island (Legislative Assembly) (2003), 221 Nfld. & P.E.I.R. 164 (P.E.I.S.C.) at para. 29 that Committees are "natural extensions of the House and the House naturally functions through them".

[59]       For the foregoing reasons, I conclude that the distribution of documents falls within the parliamentary privilege of the Committee to control its internal procedure and is therefore immunized from review by the Court.

VII. Conclusion

[60]       My conclusions with respect to Mr. Knopf's OLA rights and the issue of parliamentary privilege are sufficient to dispose of this matter. It is not necessary for me to address the other issues raised by the Speaker and I decline to do so. Those issues are better left to another day when the factual context is such that a determination of them is warranted. This is not such a case.

[61]       In the result, Mr. Knopf's application will be dismissed and a judgment will issue accordingly. The Speaker does not seek costs and no costs will be awarded to the Speaker. The Attorney General submits that the provisions of subsection 81(2) of the OLA do not apply because this matter raises no new issues. Therefore, costs should follow the event. Mr. Knopf is content to leave the issue of costs in the Court's hands. While I agree with the Attorney General that the issues do not fall within the parameters of subsection 81(2) of the OLA, the issues are important ones, as the Attorney General readily acknowledged. Subsection 81(1) of the OLA expressly provides that costs are within the discretion of the Court. In the exercise of that discretion, I decline to award costs against Mr. Knopf.

"Carolyn Layden-Stevenson"

Ottawa, Ontario

June 26, 2006

SCHEDULE "A"

to the

Reasons for Judgment dated June 26, 2006

in

HOWARD P. KNOPF

and

SPEAKER OF THE HOUSE OF COMMONS

and ATTORNEY GENERAL OF CANADA

T-770-05

A. General Principles of Parliamentary Privilege

¶ 28       The contours of parliamentary privilege, and the relationship between Parliament and the courts relative to its exercise, have been dealt with by this Court in a number of cases, most recently in connection with the "inherent" privileges of provincial legislative assemblies in New Brunswick Broadcasting and Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876.

¶ 29       While there are some significant differences between privilege at the federal level, for which specific provision is made in s. 18 of the Constitution Act, 1867, and privilege at the provincial level, which has a different constitutional underpinning, many of the relevant issues concerning privilege were resolved in New Brunswick Broadcasting and earlier cases, and there is no need to repeat the analysis here. For present purposes, it is sufficient to state a number of propositions that are now accepted both by the courts and by the parliamentary experts.

1.    Legislative bodies created by the Constitution Act, 1867 do not constitute enclaves shielded from the ordinary law of the land. "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" (New Brunswick Broadcasting, at pp. 370-71). Privilege "does not embrace and protect activities of individuals, whether members or non-members, simply because they take place within the precincts of Parliament" (U.K., Joint Committee on Parliamentary Privilege, vol. 1, Report and Proceedings of the Committee (1999) ("British Joint Committee Report"), at para. 242 (emphasis in original)).

2.    Parliamentary privilege in the Canadian context is the sum of the privileges, immunities and powers enjoyed by the Senate, the House of Commons and provincial legislative assemblies, and by each member individually, without which they could not discharge their functions (Beauchesne's Rules & Forms, at p. 11; Erskine May, at p. 75; New Brunswick Broadcasting, at p. 380).

3.    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 to the Constitution Act, 1867 and in the case of the Canadian Parliament, through s. 18 of the same Act (New Brunswick Broadcasting, at pp. 374-78; Telezone Inc. v. Canada (Attorney General) (2004), 69 O.R. (3d) 161 (C.A.), at p. 165; and Samson Indian Nation and Band v. Canada, [2004] 1 F.C.R. 556, 2003 FC 975).

4.    Parliamentary privilege includes

      the necessary immunity that the law provides for Members of Parliament, and for Members of the legislatures of each of the ten provinces ... in order for these legislators to do their legislative work. [Emphasis added.]

      (J. P. J. Maingot, Parliamentary Privilege in Canada (2nd ed. 1997), at p. 12; New Brunswick Broadcasting, at p. 341; see Fielding v. Thomas, [1896] A.C. 600 (P.C.), at pp. 610-11; Kielley v. Carson (1842), 4 Moo. P.C. 63, 13 E.R. 225, at pp. 235-36.) The idea of necessity is thus linked to the autonomy required by legislative assemblies and their members to do their job.

5.    The historical foundation of every privilege of Parliament is necessity. If a sphere of the legislative body's activity could be left to be dealt with under the ordinary law of the land without interfering with the assembly's ability to fulfill its constitutional functions, then immunity would be unnecessary and the claimed privilege would not exist (Beauchesne's Rules & Forms, at p. 11; Maingot, at p. 12; Erskine May, at p. 75; Stockdale v. Hansard, at p. 1169; New Brunswick Broadcasting, at pp. 343 and 382).

6.    When the existence of a category (or sphere of activity) for which inherent privilege is claimed (at least at the provincial level) is put in issue, the court must not only look at the historical roots of the claim but also to determine whether the category of inherent privilege continues to be necessary to the functioning of the legislative body today. Parliamentary history, while highly relevant, is not conclusive:

         The fact that this privilege has been upheld for many centuries, abroad and in Canada, is some evidence that it is generally regarded as essential to the proper functioning of a legislature patterned on the British model. However, it behooves us to ask anew: in the Canadian context of 1992, is the right to exclude strangers necessary to the functioning of our legislative bodies? [Emphasis added.]

         (New Brunswick Broadcasting, per McLachlin J., at p. 387)

7.    "Necessity" in this context is to be read broadly. The time-honoured test, derived from the law and custom of Parliament at Westminster, is what "the dignity and efficiency of the House" require:

         If a matter falls within this necessary sphere of matters without which the dignity and efficiency of the House cannot be upheld, courts will not inquire into questions concerning such privilege. All such questions will instead fall to the exclusive jurisdiction of the legislative body. [Emphasis added.]

         (New Brunswick Broadcasting, at p. 383)

         (In my view, the references to "dignity" and "efficiency" are also linked to autonomy. A legislative assembly without control over its own procedure would, said Lord Ellenborough C.J. almost two centuries ago, "sink into utter contempt and inefficiency" (Burdett v. Abbot (1811), 14 East 1, 104 E.R. 501, at p. 559). "Inefficiency" would result from the delay and uncertainty would inevitably accompany external intervention. Autonomy is therefore not conferred on Parliamentarians merely as a sign of respect but because such autonomy from outsiders is necessary to enable Parliament and its members to get their job done.)

8.       Proof of necessity may rest in part in "shewing that it has been long exercised and acquiesced in" (Stockdale v. Hansard, at p. 1189). The party who seeks to rely on the immunity provided by parliamentary privilege has the onus of establishing its existence.

         ... The onus of shewing that it is so lies upon the defendants; for it is certainly primâ facie contrary to the common law. [Ibid., at p. 1189]

                The burthen of proof is on those who assert it; and, for the purposes of this cause, the proof must go to the whole of the proposition ... . [Ibid., at p. 1201]

9.       Proof of necessity is required only to establish the existence and scope of a category of privilege. Once the category (or sphere of activity) is established, it is for Parliament, not the courts, to determine whether in a particular case the exercise of the privilege is necessary or appropriate. In other words, within categories of privilege, Parliament is the judge of the occasion and manner of its exercise and such exercise is not reviewable by the courts: "Each specific instance of the exercise of a privilege need not be shown to be necessary" (New Brunswick Broadcasting, at p. 343 (emphasis added)).

         See also Ontario (Speaker of the Legislative Assembly) v. Ontario (Human Rights Commission) (2001), 54 O.R. (3d) 595 (C.A.); Samson Indian Nation and Band, at para. 13; Martin v. Ontario, [2004] O.J. No. 2247 (QL) (S.C.J.), at para. 13; R. v. Richards; Ex parte Fitzpatrick and Browne (1955), 92 C.L.R. 157 (Austl. H.C.), at p. 162; Egan v. Willis (1998), 158 A.L.R. 527 (H.C.); and Huata v. Prebble, [2004] 3 NZLR 359, [2004] NZCA 147.

10.     "Categories" include freedom of speech (Stopforth v. Goyer (1979), 23 O.R. (2d) 696 (C.A.), at p. 700; Re Clark and Attorney-General of Canada (1977), 17 O.R. (2d) 593 (H.C.); U.K. Bill of Rights of 1689, art. 9; Prebble v. Television New Zealand Ltd., [1995] 1 A.C. 321 (P.C.); Hamilton v. Al Fayed, [2000] 2 All E.R. 224 (H.L.)); control by the Houses of Parliament over "debates or proceedings in Parliament" (as guaranteed by the Bill of Rights of 1689) including day-to-day procedure in the House, for example the practice of the Ontario legislature to start the day's sitting with the Lord's Prayer (Ontario (Speaker of the Legislative Assembly), at para. 23); the power to exclude strangers from proceedings (New Brunswick Broadcasting; Zündel v. Boudria (1999), 46 O.R. (3d) 410 (C.A.), at para. 16; R. v. Behrens, [2004] O.J. No. 5135 (QL), 2004 ONCJ 327); disciplinary authority over members (Harvey; see also Tafler v. British Columbia (Commissioner of Conflict of Interest) (1998), 161 D.L.R. (4th) 511 (B.C.C.A.), at paras. 15-18; Morin v. Crawford (1999), 29 C.P.C. (4th) 362 (N.W.T.S.C.)); and non-members who interfere with the discharge of parliamentary duties (Payson v. Hubert (1904), 34 S.C.R. 400, at p. 413; Behrens), including immunity of members from subpoenas during a parliamentary session (Telezone; Ainsworth Lumber Co. v. Canada (Attorney General) (2003), 226 D.L.R. (4th) 93, 2003 BCCA 239; Samson Indian Nation and Band). Such general categories have historically been considered to be justified by the exigencies of parliamentary work.

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 (Re Ouellet (No. 1) (1976), 67 D.L.R. (3d) 73 (Que. Sup. Ct.), at p. 87). Thus in 1839, almost three decades before Confederation in Canada, the English courts rejected the authority of a formal resolution of the House of Commons that the court believed overstated the true limits of the privilege claimed (Stockdale v. Hansard, at p. 1156, per Denman C.J.; p. 1177, per Littledale J.; p. 1192, per Patteson J.; p. 1194, per Coleridge J.). The jurisdiction of the courts in adjudicating claims of privilege has since been accepted by authorities on British parliamentary practice (see Erskine May, at pp. 185-86). The same division of jurisdiction between the courts and the House was accepted by this Court in Landers v. Woodworth (1878), 2 S.C.R. 158, where Richards C.J., our first Chief Justice, had this to say at p. 196:

[T]he courts will see whether what the House of Commons declares to be its privileges really are so, the mere affirmance by that body that a certain act is a breach of their privileges will not oust the courts from enquiring and deciding whether the privilege claimed really exists.

This jurisdictional rule has been accepted by authorities on the law and custom of the Canadian Parliament as well (see Maingot, at p. 66) and is not challenged in this appeal.

12.     Courts are apt to look more closely at cases in which claims to privilege have an impact on persons outside the legislative assembly than at those which involve matters entirely internal to the legislature (New Brunswick Broadcasting, at p. 350; Bear v. State of South Australia (1981), 48 S.A.I.R. 604 (Indus. Ct.); Thompson v. McLean (1998), 37 C.C.E.L. (2d) 170 (Ont. Ct. (Gen. Div.)), at para. 21; Stockdale v. Hansard, at p. 1192).

FEDERAL COURT

NAME OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           T-770-05

STYLE OF CAUSE:                           HOWARD P. KNOPF

                                                            v.

                                                            SPEAKER OF THE HOUSE OF COMMONS

                                                            and ATTORNEY GENERAL OF CANADA

PLACE OF HEARING:                     Ottawa, Ontario

DATE OF HEARING:                       May 24, 2006

REASONS FOR JUDGMENT:        LAYDEN-STEVENSON J.

DATED:                                              June 26, 2006

APPEARANCES:

Mr. Howard P. Knopf	FOR THE APPLICANT (Acting on his own behalf)
Mr. Steven Chaplin Ms. Melanie Mortensen Ms. Catherine A. Lawrence	FOR THE RESPONDENT (Speaker of the House of Commons) FOR THE RESPONDENT (Attorney General of Canada)

SOLICITORS OF RECORD:

Mr. Howard P. Knopf Ottawa, Ontario	FOR THE APPLICANT (Acting on his own behalf)
John H. Sims, Q.C. Deputy Attorney General of Canada Robert R. Walsh Legal Counsel Office of the Law Clerk and Parliament Counsel	FOR THE RESPONDENT (Attorney General of Canada) FOR THE RESPONDENT (Speaker of the House of Commons)