Date: 20030812
Docket: T-2022-89
Citation: 2003 FC 975
BETWEEN:
CHIEF VICTOR BUFFALO acting on his own behalf and on behalf of the other members of the Samson Indian Nation and Band and THE SAMSON INDIAN BAND AND NATION,
Plaintiffs
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT, and THE MINISTER OF FINANCE,
Defendants
CHIEF JEROME MORIN acting on his own behalf as well as on behalf of all the MEMBERS OF ENOCH'S BAND OF INDIANS AND THE RESIDENTS THEREOF ON AND OF STONY PLAIN RESERVE NO. 135
Intervenors
- and -
EMILY STOYKA and SARA SCHUG
Intervenors
REASONS FOR ORDER
TEITELBAUM, J.
[1] The applicants, Samson Cree Nation [hereinafter "Samson"] apply for an Order, pursuant to Rule 41(4) of the Federal Court Rules, 1998, granting leave to the Administrator of this Court to issue subpoenas for the appearance of the Right Honourable Jean Chrétien [hereinafter the "Prime Minister"] and the Honourable Robert D. Nault [hereinafter the "Minister"] as witnesses in the trial of this action.
[2] Rule 41(4) provides as follows:
41(4) Where leave required - No subpoena shall be issued without the leave of the Court
(b) to compel the appearance of a witness who resides more than 800 km from the place where the witness shall be required to attend under the subpoena;
In the case at bar, both the Prime Minister and the Minister reside more than 800 km from the place they shall be required to attend (Calgary) under the subpoena.
[3] In support of its application, Samson filed the affidavit of Florence M. Buffalo, sworn on February 28, 2003. Ms. Buffalo is an elected councillor of the Samson Cree Nation. The respondent Crown, for its part, filed the affidavit of Reinard Kohls, sworn March 17, 2003. Mr. Kohls is the Crown's deponent in the second phase of this trial, money management; he worked for the Department of Indian Affairs and Northern Development from 1956 to 1990, holding a number of different positions.
[4] Ms. Buffalo and Mr. Kohls were cross examined on the contents of their respective affidavits, the former on April 1, 2003 and the latter on April 2, 2003.
[5] The parties presented the Court with very thorough and extensive materials and submissions. Indeed, oral submissions covered the better part of twelve days.
Applicant's Position
[6] Samson submits that the two proposed witnesses, the Prime Minister and Minister Nault, have relevant and important evidence to give relating to various issues in the trial [see attached Annex for paragraphs 8, 9, 10, 11, 12, and 16 of Ms. Buffalo's affidavit]. Samson contends that the Prime Minister has had active and important participation over the past 25 years with respect to Crown policy and initiatives that relate to and affect Samson and the issues in this trial.
[7] With regard to Minister Nault, Samson submits that he has relevant evidence to offer this Court relating to the present position and policy of the Crown and the Department of Indian Affairs and Northern Development with respect to the treaty relationship between the Crown and Samson; the issue of the transfer of control of Samson moneys, held by the Crown in the Consolidated Revenue Fund, to Samson; the application of the Indian Act; the implementation of the alleged inherent right of self-government; new legislative initiatives; and the issue of a higher rate of return.
[8] Samson also submits that neither proposed witness enjoys any parliamentary privilege that would exempt them from attending and giving evidence in legal proceedings. Alternatively, if such a privilege exists, Samson contends that it is no longer necessary and is inconsistent with the rule of law, subsection 2(e) of the Canadian Bill of Rights, and is in breach of sections 7, 15, and 35 of the Charter. Samson also contends that to the extent that there is a continuing parliamentary privilege, it neglects the increasing place of international law and standards in the Canadian constitutional framework. Further, if such a privilege is found to exist and not be in breach of the rule of law, the Canadian Bill of Rights, or the Charter, Samson contends that it should be construed narrowly, so as to apply only when Parliament is actually sitting, as opposed to when it is in session.
Respondent's Position
[9] The Crown submits that neither witness has relevant evidence to give this Court. According to the Crown, the subpoenas are being sought as a tactic to promote attention to the present action before the Court and to compel the current Prime Minister and Minister of Indian Affairs to explain and debate the Crown's historical and current legal position and policies. The Crown contends that the Prime Minister's personal views on such things are neither relevant nor appropriate evidence. However, if the evidence is found to be relevant, the Crown suggests that a cost benefit analysis will show that the benefits of such evidence are greatly outweighed by its costs and that it ought not to be admitted.
[10] The Crown submits that the proposed witnesses enjoy the protection of a parliamentary privilege exempting them from the obligation to attend court and give evidence. The Crown contends that such a privilege existed historically and continues to exist today. The Crown further submits that the privilege applies while Parliament is in session, and for forty days before the commencement of the session and for forty days after the session has come to a close.
Issues
[11] The issues in this application are whether the evidence of the proposed witnesses is relevant and admissible, and whether the proposed witnesses are exempt from attending and giving evidence by virtue of a parliamentary privilege.
[12] Although the parties presented the Court with their submissions in this order, I will deal with the second issue, viz. parliamentary privilege, first.
Analysis
[13] The scope of judicial review of parliamentary privilege is limited to determining only the existence and extent of the privilege claimed. Courts may not delve into the exercise of a privilege once it is found to be necessary. In Stockdale v. Hansard (1839), 9 Ad. & E. 1, 112 E.R. 1112 (Q.B.), Lord Denman articulated the necessity test, at p. 1169, as follows,
If the necessity can be made out, no more need be said: it is the foundation of every privilege of Parliament, and justifies all that it requires.
[14] The leading authority in Canadian jurisprudence on parliamentary privilege is that of New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319; at p. 383, McLachlin J., as she then was, held,
The test of necessity is not applied as a standard for judging the content of a claimed privilege, but for the purpose of determining the necessary sphere of exclusive or absolute "parliamentary" or "legislative" jurisdiction. 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.
[15] McLachlin J. went on to state, at pp. 384-385,
The only area for court review is at the initial jurisdictional level: is the privilege claimed one of those privileges necessary to the capacity of the legislature to function? A particular exercise of a necessary privilege cannot then be reviewed, unless the deference and the conclusion reached at the initial stage be rendered nugatory.
In summary, it seems clear that, from an historical perspective, Canadian legislative bodies possess such inherent privileges as may be necessary to their proper functioning. These privileges are part of the fundamental law of our land, and hence are constitutional. The courts may determine if the privilege claimed is necessary to the capacity of the legislature to function, but have no power to review the rightness or wrongness of a particular decision made pursuant to the privilege. [underlining added]
[16] A general definition of parliamentary privilege is contained in Joseph Maingot's Parliamentary Privilege in Canada, 2nd ed. (House of Commons and McGill-Queen's University Press, 1997), at p. 12:
Parliamentary privilege is the necessary immunity that the law provides for Members of Parliament, and for Members of the legislatures of each of the ten provinces and two territories, in order for these legislators to do their legislative work. It is also the necessary immunity that the law provides for anyone while taking part in a proceeding in Parliament or in a legislature. In addition, it is the right, power, and authority of each House of Parliament and of each legislative assembly to perform their constitutional functions. Finally, it is the authority and power of each House of Parliament and of each legislative assembly to enforce that immunity and to protect its integrity.
[17] Erskine May's Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 21st ed. (London: Butterworths, 1989) provides this definition, at pp. 69 and 82:
Parliamentary privilege is the sum of the peculiar rights enjoyed by each House collectively as a constituent part of the High Court of Parliament, and by Members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. Thus privilege, though part of the law of the land, is to a certain extent an exemption from the general law.
* * *
...the privileges of Parliament are rights 'absolutely necessary for the due execution of its powers'... .
I note that this definition of privilege is also found in Beauchesne's Rules and Forms of the House of Commons of Canada, 6th ed. (Toronto: Carswell, 1989), at p. 11.
[18] The Bourinot text, Parliamentary Procedure and Practice in the Dominion of Canada, 4th ed. (Toronto: Canada Law Book Company, 1916), at pp. 37-38 and 43, defined
privilege in the following manner,
The privileges of Parliament include such rights as are necessary for free action within its jurisdiction and the necessary authority to enforce these rights if challenged. These privileges and powers have been assumed as fundamental and have been insisted upon by custom and usage as well as confirmed and extended by legal enactments. Their extent and nature have frequently been subjects of controversy but in the main they are decided by the legislature itself and its decision, speaking generally, cannot be called into question by any court or other authority, but this does not prevent the courts from inquiring as to whether the legislature has in fact acted within its authority.
* * *
The personal privileges of members are to enable them to freely attend in their places in Parliament, to guarantee them against restraint or intimidation in the discharge of their duties and to protect them in their freedom of speech in the debates in Parliament. The privilege has been always held to protect members from arrest and imprisonment under civil process, whether at the suit of an individual or of the public.
[19] In New Brunswick Broadcasting Co., at pp. 378-379, McLachlin J. stated,
"Privilege" in this context denotes the legal exemption from some duty, burden, attendance or liability to which others are subject. It has long been accepted that in order to perform their functions, legislative bodies require certain privileges relating to the conduct of their business. It has also long been accepted that these privileges must be held absolutely and constitutionally if they are to be effective; the legislative branch of our government must enjoy a certain autonomy which even the Crown and the courts cannot touch.
[20] The legislative and constitutional framework for parliamentary privilege is found in both the preamble and section 18 of the Constitution Act, 1867. The preamble states that the authors of our Constitution intend that is should be "similar in Principle to that of the United Kingdom". Section 18 provides,
18. The privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada, but so that the same shall never exceed those at the passing of this Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland and by the Members thereof.
[21] This section was repealed by the United Kingdom's Parliament in 1875 and re-enacted to read as follows:
18. The privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the Members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada, but so that any Act of the Parliament of Canada defining such privileges, immunities, and powers shall not confer any privileges, immunities, or powers exceeding those at the passing of such Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the Members thereof. [underlining added]
[22] Pursuant to section 18 of the Constitution Act, 1867, section 4 of the Parliament of Canada Act, R.S.C. 1985, c. P-1 was enacted:
4. The Senate and the House of Commons, respectively, and the members thereof hold, enjoy and exercise
(a) such and the like privileges, immunities and powers as, at the time of the passing of the Constitution Act, 1867, were held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom and by the members thereof, insofar as is consistent with that Act; and
(b) such privileges, immunities and powers as are defined by Act of the Parliament of Canada, not exceeding those, at the time of the passing of the Act, held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom and by the members thereof.
[23] Section 5 of the Parliament of Canada Act provides,
5. The privileges, immunities and powers held, enjoyed and exercised in accordance with section 4 are part of the general and public law of Canada and it is not necessary to plead them but they shall in all courts in Canada and by and before all judges be taken notice of judicially.
[24] Before embarking upon the question of whether the parliamentary privilege claimed in the case at bar in fact exists, a preliminary issue must be dealt with: has Parliament defined its privileges, powers, and immunities in accordance with section 18 of the Constitution Act, 1867 as amended in 1875? The applicant submits that Parliament has not and that section 4 of the Parliament of Canada Act is ultra vires as it does not conform with the amended language of section 18 of the Constitution Act, 1867.
[25] It is clear that Parliament defined its privileges, powers, and immunities in 1867 by importing into Canadian law all of the privileges, powers, and immunities held by the United Kingdom's Parliament, which were held either under statute, through resolution, or through custom and usage. Section 18 of the Constitution Act, 1867 also recognizes inherent privileges and allows for the addition of statutory ones, subject to the limitations imposed by that section. I note that at p. 375 in New Brunswick Broadcasting Co., McLachlin J. held,
It is my view that far from contradicting the proposition that Parliament and the legislatures possess inherent constitutional privileges, the wording of our written constitution supports that proposition.
[26] Nothing in section 4 of the Parliament of Canada Act appears to be inconsistent with the amended section 18, which provided that when Parliament enacted legislation defining privileges, it could not define those privileges as anything greater than those that existed at the time of the enactment. The Parliament of Canada Act was enacted in 1868 and tracked the language of section 18, that is, that the Parliament of Canada wished to enjoy the same privileges as those that existed at that time, 1867, in the United Kingdom's Parliament. This is consistent with the language of section 18 as amended in 1875. Accordingly, I do not accept the applicant's submission that section 4 of the Parliament of Canada Act is ultra vires and inoperable as such.
[27] The parliamentary privilege asserted, and contested, in the case at bar is that of being exempt from any obligation to attend as a witness in court whilst Parliament is in session. The Court is thus required to first determine whether such a privilege existed in the United Kingdom at the time of Confederation.
[28] Parliamentary privilege, for the most part, was a creature of convention in the United Kingdom, and there is scant jurisprudence or source material, as was noted by Low J.A. in Ainsworth Lumber Co. Ltd. v. Canada (Attorney General) and Martin (2003), B.C. C.A. 239, at para. 44:
To know the nature and scope of the parliamentary privilege claimed in the present case, one must discover the privilege that existed in the United Kingdom at the time of confederation. For the most part the privilege there is not the subject of statute. It appears to have come about by convention and there is very little source material on the subject. Textbook writers state the privilege in different ways with very little citation of sources.
Nevertheless, the Court in Ainsworth concluded that there exists a parliamentary privilege exempting members from answering subpoenas to attend as witnesses in court while Parliament is in session. The Court referred to the Maingot text, Parliamentary Privilege in Canada, Erskine May's Treatise on the Law, Privileges, Proceedings and Usage of Parliament, and Halsbury's Laws of England, 4th ed. (London: Butterworths, 1997), vol. 34, p. 561.
[29] In the 1982 edition of Maingot's text, reference is made, at p. 128, to Hatsell, Precedents of Proceedings in the House of Commons, 3rd ed. (London: T. Payne, 1976), vol. 1, pp. 1-2; Hatsell wrote that Parliament's members,
...should not be prevented by trifling interruptions from their attendance on this important duty, but should, for a certain time, be excused from obeying any other call, not so immediately necessary for the great services of the nation; it has been therefore, upon these principles, always claimed and allowed, that the Members of both Houses should be, during their attendance in Parliament, exempted from general duties, and not considered as liable to some legal process, to which other citizens, not intrusted with this most valuable franchise, are by law obliged to pay obedience.
[30] Maingot remarks, on p. 134 of the 1982 edition of his text, that Parliament has the paramount right to the attendance and service of its members. This, therefore, is the rationale behind the particular parliamentary privilege at issue in this application (see also the above noted citation for Halsbury's Laws of England on this point).
[31] In Griffith & Ryle's Parliament: Functions, Practice and Procedures (London: Sweet & Maxwell, 1989), at pp. 86-87, mention is also made of the exemption of parliamentarians from complying with subpoenas.
[32] While there has been some debate in Britain as to whether this particular privilege should continue in existence, no legislation has been enacted that either diminishes or extinguishes this privilege. It existed historically in Britain and continues to exist today; as such, by virtue of section 4 of the Parliament of Canada Act, this privilege is one that Canadian parliamentarians hold today.
[33] The duration of this parliamentary privilege is another matter of some debate. In Ainsworth, the Court held that the privilege applied only while Parliament is in session, and not to any periods before the start of a session or after its prorogation. The Court relied on several Canadian texts, which simply stated that the privilege applies when the House is in session, which I reproduce now for ease of reference.
[34] Bourinot's text, Parliamentary Procedure and Practice in the Dominion of Canada, states at pp. 45-46,
The privilege of exemption of members from serving as jurors or attending as witnesses during a session of parliament is well established and precedents are found of the British Commons having punished persons for serving subpoenas upon members.
[35] In Norman Ward, Dawson's The Government of Canada, 6th ed. (Toronto: University of Toronto Press, 1987), p. 115 reads as follows,
A member does not have to serve on a jury during the session; nor at such times can he be compelled to attend court as a witness although, if necessary, the House will give its permission for him to absent himself for such a purpose.
[36] Finally, R. Marleau and C. Montpetit, eds., House of Commons Procedure and Practice, (Ottawa: House of Commons, 2000) reads at p. 79,
The right of the House to the attendance and service of its Members exempts a Member, when the House is in session, from the normal obligation of a citizen to comply with a subpoena to attend a court as a witness.
[37] No reference is made in any of these texts to the inclusion of a before or after period during which the privilege persists.
[38] However, the Maingot text asserts, at p.155 of the 1997 edition (see also p. 137 of the 1982 edition), that the privilege continues for forty days before and after a session:
In Canada, the case of R. v. Gamble and Boulton is authority for the proposition that the duration of the privilege is the same as it is in the U.K.: 40 days before and after a session, and 40 days after a dissolution.
[39] R. v. Brown, [2001] P.E.I.J. No. 8 (S.C.T.D.) is another recent case dealing with the same parliamentary privilege. The Prime Minister applied to have a subpoena quashed, which the accused had issued. The case arose from an incident in which the Prime Minister was struck in the face by a pie thrown by the accused. MacDonald C.J.T.D. quashed the subpoena, in part because it was a violation of parliamentary privilege. Relying on the 1982 edition of Maingot and R. v. Gamble (1851), 9 U.C.Q.B. 546 (Up. Can. Ct. of Q.B.), the Court held at para. 24,
This immunity to attend as a witness before a court of law in relation to a criminal matter extends forty days before and after a session of Parliament, and forty days after dissolution.
[40] Finally, there is Telezone Inc. v. Canada (Attorney General) (2003), O.J. No. 2543 (Ont. S.C.J.). In that case, Backhouse J. held that the right not to attend as a witness is a recognized parliamentary privilege. However, adding a further wrinkle to the debate, the Court held that the privilege applies only to the period that Parliament is actually sitting and for 14 days after it adjourns. The Court relied on this passage from p. 100 of Erskine May's Treatise on the Law, Privileges, Proceedings and Usage of Parliament:
But the privilege of exemption of a Member from attending as a witness has been asserted by the House upon the same principle as other personal privileges, viz., the paramount right of Parliament to the attendance and service of its members; and on the matter being raised by the Member concerned the Speaker communicates with the court drawing attention to this privilege and asking that the Member should be excused because of the sitting of the House.
[41] Backhouse J. considered that Maingot's use of "in session" in his text, at p. 134, was equivalent to May's "sitting." For the fourteen days period, Backhouse J. looked to the preamble of the Parliamentary Privilege Act, 1770 (U.K.), 10. Geo. III, c. 50. For the sake of convenience and clarity, but not brevity, the preamble reads as follows,
An Act for the further preventing Delays of Justice by reason of Privilege of Parliament.
Whereas the several Laws heretofore made for restraining the Privilege of Parliament, with respect to Actions or Suits commenced and prosecuted at any Time from and immediately after the Dissolution or Prorogation of any Parliament, until a new Parliament should meet, or the same be re-assembled; and from and immediately after an Adjournment of both Houses of Parliament for above the Space of Fourteen Days, until both Houses should meet or assemble, are insufficient to obviate the Inconveniences arising from the Delay of Suits by reason of Privilege of Parliament; whereby the Parties often lose the Benefit of several Terms: For the preventing all Delays the King or His Subjects may receive in prosecuting their several Rights, Titles, Debts, Dues, Demands or Suits for which they have Cause; Be it enacted by the King's Most Excellent Majesty, by and with the Advice and Consent of the Lords Spiritual and Temporal, and Commons in this present Parliament assembled and by the Authority of the same, That from and after the Twenty-fourth Day of June One thousand seven hundred and seventy, and Person or Persons shall and may at any time, commence and prosecute any Action or Suit in any Court of Record, or Court of Equity, or of Admiralty, and in all Causes Matrimonial and Testamentary, in any Court having Cognizances of Causes Matrimonial and Testamentary, against any Peer or Lord of Parliament of Great Britain, or against any of the Knights, Citizens and Burgesses, and the Commissioners for Shires and Burghs of the House of Commons of Great Britain for the time being, or against their or any of their menial or other Servants or any other Persons [e]ntitled to the Privilege of Parliament of Great Britain; and no such Action, Suit or any other process or Proceeding thereupon, shall at any time be impeached, stayed or delayed by or under Colour or Pretence of any Privilege of Parliament.
[42] To re-cap, briefly, the British Columbia Court of Appeal, in Ainsworth, held that the privilege applies while Parliament is in session; the Prince Edward Island Supreme Court, in Brown, held that the privilege applies while Parliament is in session, as well as for forty days before and after a session; and, finally, the Ontario Superior Court of Justice, in Telezone, has held that the privilege applies only while Parliament is sitting and for fourteen days after an adjournment.
[43] I find that the privilege exists and has existed historically, and that it persists for the duration of a session, as opposed to the more narrow "sitting" advanced in Telezone. I agree with the words of Low J.A. in Ainsworth, at para. 56, and make them mine:
When Parliament is in session it can be called to sit at any time. When it is in session, it is assembled, whether actually sitting or not. ... The business of Parliament and the duties of parliamentarians are not at rest just because Parliament, during a session, is not physically sitting.
[44] Applying the necessity test, I find that this privilege is well within the sphere of Parliament's jurisdiction. In order for Parliament to function, it requires the attendance of its members; without them, to use the words of McLachlin J. in New Brunswick Broadcasting, the dignity and efficiency of the House could not be upheld. Without this parliamentary privilege, it is possible that either House could be so de-populated by members responding to subpoenas, that the business of Parliament would come to a halt.
[45] As for the duration of the privilege, I find that some additional time is necessary, for a period before the commencement and beyond the close of a session. I do not, however, agree with the reasoning of Backhouse J. on this point, and I do not rely upon the preamble to the Parliamentary Privilege Act, 1770. That statute is concerned with the privilege that created an immunity from legal action during parliamentary service; it abolished that privilege, thus allowing for parliamentarians to be sued at any time. With advances in efficiency of modes of travel and communication, what appears to be, according to some sources, the old rule of forty days before and after a parliamentary session is no longer necessary. However, some time is needed to either wrap up and conclude the business of a session, or to prepare for the commencement of one. A reasonable period of time, therefore, is fourteen days; thus I find that the privilege extends beyond a session, to include fourteen days before a session convenes and fourteen days after a session ends.
[46] Finally, the applicant contends that the parliamentary privilege at issue offends against the rule of law, subsection 2(e) of the Canadian Bill of Rights, subsections 7, 15, and 35 of the Charter, and international law and standards.
[47] There is no question that the rule of law forms part of our Constitution. Indeed, the preamble to the Constitution Act, 1982 states,
Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law.
[48] In Re Manitoba Language Rights, [1985] 1 S.C.R. 721, at pp. 748-749, the Supreme Court of Canada held,
The rule of law, a fundamental principle of our Constitution, must mean at least two things. First, that the law is supreme over officials of the government as well as private individuals, and thereby preclusive of the influence of arbitrary power.
* * *
Second, the rule of law requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order. Law and order are indispensable elements of civilized life.
[49] In the instant case, I have concluded that there exists a parliamentary privilege which exempts members from responding to subpoenas while Parliament is in session. This privilege is not just a privilege in the ordinary sense of that word, but it is also a part of our laws and thus cannot be inconsistent with the rule of law principle.
[50] Subsection 2(e) of the Canadian Bill of Rights reads as follows,
2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to
(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations;
[51] This section's purpose is to ensure fair adjudications of individual rights and obligations. It deals with procedural fairness, which implies the right to state one's case adequately; see Canada (Attorney General) v. Central Carthage Co., [1990] 2 F.C. 641 (C.A.) at paras. 39-40. This section cannot support the setting aside of a parliamentary privilege, which, in the case at bar, has been found to be a valid product of Canadian law.
[52] Turning to the Charter submissions, McLachlin J., as she then was, held in Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876, at para. 69,
Because parliamentary privilege enjoys constitutional status it is not "subject to" the Charter, as are ordinary laws. Both parliamentary privilege and the Charter constitute essential parts of the Constitution of Canada. Neither prevails over the other. While parliamentary privilege and immunity from improper judicial interference in parliamentary processes must be maintained, so must the fundamental democratic guarantees of the Charter. Where apparent conflicts between different constitutional principles arise, the proper approach is not to resolve the conflict by subordinating one principle to the other, but rather to attempt to reconcile them.
[53] McLachlin J. elaborated upon this matter of reconciliation at paras. 71 and 74:
To prevent abuses cloaked in the guise of privilege from trumping legitimate Charter interests, the courts must inquire into the legitimacy of a claim of parliamentary privilege. As this Court made clear in New Brunswick Broadcasting, the courts may properly question whether a claimed privilege exists.
* * *
The courts may review an act or ruling of the legislature to determine whether it properly falls within the domain of parliamentary privilege. If it does not, they may proceed with Charter review. If it does, they must leave the matter to the legislature.
[54] Since I have already found that the parliamentary privilege claimed in this case is, pursuant to the necessity test, within the sphere of Parliament's jurisdiction, I need not proceed with a Charter review.
[55] Finally, the various international covenants and instruments referred to me by counsel for the applicant are not helpful in the disposition of this application. While they may have some value in certain contexts, they do not speak to the issue of parliamentary privilege and, as I have already found the parliamentary privilege asserted in this case to be a valid part of Canadian law, I can see no guidance to be had from international law and standards on this point.
[56] Having decided that the parliamentary privilege exists, it is not necessary for me to address the issue of the relevancy of the proposed witnesses' evidence.
[57] Although not specifically raised by either party, a further issue in the present application is the issue of whether the claim of parliamentary privilege must be raised by the individual Member of Parliament claiming the privilege or by the Speaker of the House for and on behalf of the member.
[58] As I am of the opinion that a Member of Parliament has the right to assert a claim of privilege for the reasons above stated, I am satisfied that the Member claiming the privilege may do so on his or her own behalf or, in a general sense, the Speaker of the House may claim the privilege for the Members of Parliament generally. It matters not who asserts the claim of privilege.
[59] In that Parliament is currently in session, although not sitting, with no firm date for its dissolution or prorogation, the present application for the issuance of subpoenas for the appearance of the Prime Minister, the Right Honourable Jean Chrétien, and the present Minister of Indian Affairs and Northern Development, the Honourable Robert D. Nault, as witnesses is dismissed with costs.
"Max M. Teitelbaum"
JUDGE
CALGARY, Alberta
August 12, 2003
A N N E X
The following paragraphs are taken from the affidavit of Florence M. Buffalo, sworn on February 28, 2003:
8. That I understand and I am so informed by counsel of Samson Plaintiffs and verily believe that many of the issues and allegations in ASC no. 4 are matters falling within the unique personal knowledge and past or present responsibilities of The Right Honourable Jean Chrétien and Minister Robert D. Nault as set out more fully in the attached Notice of Motion.
9. That among such issues are the following issues which are described in ASC no. 4:
a) That, pursuant to Treaty No. 6, Samson Plaintiffs retained their aboriginal rights to the areas, lands and natural resources included in Samson Indian Reserves No. 137 and 137A and Pigeon Lake Indian Reserve No. 138A (paragraph 4 of ASC no. 4);
b) That, pursuant to Treaty No. 6, Plaintiff the Samson Indian Nation retained its rights as a nation, encompassing, inter alia, its right to self determination, including the right to determine its own membership, which rights are recognized and affirmed and constitutionally protected by Section 35 of the Constitution Act, 1982 (paragraph 7 of ASC no. 4);
c) That the Samson Cree Nation existed as a Nation in 1876 and 1877 and was recognized as such by the Crown in Treaty No. 6 and the 1877 Adhesion to Treaty No. 6 made by Kiskaquin (or Bobtail) on behalf of the Samson Cree Nation and continues to exist as a Nation (paragraph 7A of ASC no. 4);
d) That the Samson Cree Nation possessed and continues to possess aboriginal or inherent rights and powers in respect of governance, citizenship, taxation, trade and management of its resources and revenues and that these inherent rights and powers were affirmed by Treaty No. 6, the Royal Proclamation, 1763, treaties with the Hudson's Bay Company and various constitutional instruments (paragraph 7B of ASC no. 4);
e) At all relevant times, Defendant her Majesty held and had to deal with the reserves and natural resources therein and any royalties, payments or moneys therefrom for the use and benefit of Plaintiffs and was under, alternatively or in combination (paragraph 18 of ASC no. 4):
lx) trust or fiduciary obligations and duties;
lxi) equitable obligations and duties, as well as;
lxii) treaty, constitutional, statutory and common law obligations and duties;
to Plaintiffs in respect to these reserves and the natural resources thereof and all royalties, payments or moneys therein or therefrom;
f) That Defendant Her Majesty has breached Her trust, fiduciary or equitable obligations or other obligations and duties to Plaintiffs referred to in the preceding paragraph and in particular has failed to act as a prudent and competent trustee or fiduciary, has failed to act exclusively for the benefit of Plaintiffs and in their best interests, has failed to protect and preserve the rights, interests and property of Plaintiffs, has failed to maximize economic returns to Plaintiffs, has failed to deal with these reserves and natural resources and royalties, payments or moneys therein or therefrom, in the way most beneficial to Plaintiffs, and has failed to account (paragraph 23 of ASC no. 4);
g) That, moreover, during the entire relevant period, Defendant her Majesty (paragraph 49 of ASC no. 4):
i) has been in a position of conflict of interest, inter alia:
1. by lending Herself the Plaintiffs' moneys at a rate and on terms set by Herself and in Her own interest;
2. by placing Herself or permitting Herself to be in the position of both controlling program funding and controlling the trust moneys, and having to choose whether to use Her Majesty's money for programs, such as welfare, or to use the Plaintiffs' moneys;
3. generally by protecting Her own interests to the detriment of the Plaintiffs' interests;
ii) by failing to advise Plaintiffs of Her conflict of interest, particularly in regard to the provision of programs and services and funding for such purpose to Samson Plaintiffs, failing to take suitable measures to remedy or, alternatively, mitigate, such conflict of interest and failing to place the interests of Plaintiffs before Her own interests;
iii) has turned the said trust moneys and Her fiduciary position to Her own profit and advantage and has been unjustly enriched:
1. By saving interest and other costs by lending Herself the Plaintiffs' moneys at a cost less than what Her Majesty would have had to pay arms-length lenders and on terms less favourable than those set for other internal borrowings of Her Majesty;
2. by using or requiring the Plaintiffs to spend, including by way of per capita distributions, Plaintiffs' trust moneys for programs respecting Plaintiffs instead of using government funds, Defendant Her Majesty saved millions of dollars;
iv) has unjustly enriched Herself at the expense of Plaintiffs, inter alia, by not being obliged to borrow the sums represented by the amounts of moneys to the credit of Plaintiff Band from time to time and moneys She saved and by using trust funds of Plaintiff Band, including for per capita distributions, to Her own advantage and benefit and in neglect of the beneficiaries' interest;
h) That, moreover, at all relevant times, Defendant Her Majesty had and should have exercised Her power under section 4 of the Indian Act to exempt Plaintiffs and their moneys from the provisions of sections 61 to 68 of the Indian Act (paragraph 62 of ASC no. 4);
i) That moreover, sections 61 to 68 of the Indian Act violate, contravene and are incompatible with the Constitution Act, 1982, particularly sections 15, 25 and 35 thereof and it is expedient that sections 61 to 68 of the Indian Act be declared to be illegal, unconstitutional, null and void in respect to Plaintiffs and the moneys entrusted to Defendant Her Majesty for Plaintiffs or alternatively constitutionally inapplicable to Plaintiffs and their moneys or subject to the treaty and aboriginal rights of Plaintiffs (paragraph 63 of ASC no. 4).
10. That, as more fully appears from the Notice of Constitutional Questions, Plaintiffs, including the Samson Cree Nation, (Plaintiff the Samson Indian Nation and Band) intend to question the constitutional validity or operability of section 17 and sections 61 to 68 of the Indian Act as being contrary to or inconsistent with the treaty, aboriginal and inherent rights of Plaintiffs, the Constitution of Canada, including the unwritten rules and supporting principles and rules forming part of the Constitution of Canada, the Royal Proclamation of 1763, the Constitution Act, 1867, notably the preamble, section 91(24), sections 102 to 106, section 109, section 125 and section 132, the Rupert's Land and North-Western Territory Order of 1870, Treaty No. 6 and the adhesions thereto, sections 10 and 11 of the Constitution Act, 1930 (Alberta N.R.T.A.), the Constitution Act, 1982, notably section 15 of the Charter of Rights and Freedoms and section 35 of the Constitution Act, 1982, or the Rule of Law, including the principles of equality before and under the law (first paragraph of the Notice of Constitutional Questions).
11. That I am informed by counsel of Samson Plaintiffs in the proceedings and verily believe that The Right Honourable Jean Chrétien and the Honourable Robert D. Nault have evidence to give which is required in order to have a fair and effective determination of certain of the issues raised in the pleadings of this action in regard to general, constitutional and historical matters and in regard to money management matters.
12. That I am informed by counsel of Samson Plaintiffs in the proceedings and verily believe that Samson Plaintiffs require the evidence of the Right Honourable Jean Chrétien and the Honourable Robert D. Nault in respect to the following issues in these proceedings:
(a) the treaty relationship between Samson Plaintiffs and the Crown,
(b) the policy of the Federal Crown and the implementation by the Federal Crown of Treaty No. 6 in relation to Samson Plaintiffs,
(c) the implementation by the Federal Crown of the Indian Act and the Indian Oil and Gas Act as such legislation impacts upon the foregoing treaty relationship and the treaty rights of Samson Plaintiffs,
(d) Federal Crown policy and conduct regarding the implementation of the inherent rights of self-determination and self-government in relation to Samson Plaintiffs,
(e) the trust relationship between the Federal Crown and Samson Plaintiffs in respect to the natural resources of Pigeon Lake Indian Reserve no. 138A and Samson Indian Reserve no. 137 of which Samson Plaintiffs have the beneficial ownership and which are subject-matters of these proceedings,
(f) the treatment by the Federal Crown of the royalty moneys from the development of the natural resources on those reserves,
(g) the position of the Federal Crown in respect to the immediate transfer to the control of Samson Plaintiffs (to be held in trust) of the royalty moneys of Samson Plaintiffs of some $370 million currently controlled and used by the Crown without the consent of Samson Plaintiffs,
(h) the development and implementation of federal government policies relating to Aboriginal Peoples in regard to Samson Plaintiffs as they affect the subject-matters of these proceedings,
(i) current legislative initiatives as they affect the constitutional issues in these proceedings, including the prevalence of the treaty and aboriginal rights of Samson Plaintiffs over the Indian Act,
(j) current legislation initiatives as they affect Samson Plaintiffs and their rights, including Bill C-7 and Bill C-19, and
(k) the position and policy of the Federal Crown in relation to the findings and report of the Royal Commission on Aboriginal Peoples of October, 1996.
...
16. That I am generally aware and am informed by counsel of Samson Plaintiffs and verily believe that The Right Honourable Jean Chrétien has a unique substantial personal experience in relation to the continuum of developing Crown/Aboriginal relations in the period between the late 1960's and today. He is very probably the individual who has had the most involvement, on the part of the Crown, in a decision-making capacity in respect to the subject-matters described in paragraphs 12 to 14 hereof. He is thus eminently qualified to provide evidence for Plaintiffs in respect to the subject-matters of these proceedings.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2022-89
STYLE OF CAUSE: CHIEF VICTOR BUFFALO ET AL v. HER MAJESTY THE QUEEN ET AL
PLACE OF HEARING: CALGARY, ALBERTA
DATE OF HEARING: MAY 12,13,14,15,16,20,21,22,23,26,27,28, 2003
REASONS FOR ORDER : THE HONOURABLE MR. JUSTICE TEITELBAUM
DATED: AUGUST 12, 2003
APPEARANCES:
JAMES O'REILLY
ED MOLSTAD, Q.C.,
PETER HUTCHINS
NATHAN WHITLING
DAVID SHARKO FOR PLAINTIFF
ALAN MACLEOD, Q.C.,
WENDY MCCALLUM FOR DEFENDANT
BRIAN EVERNDEN FOR THE ATTORNEY GENERAL OF CANADA
MARVIN STORROW, Q.C.,
MARIA MORELLATO
JOSEPH MCARTHUR FOR PLAINTIFF - T-1254-92 *MADE NO SUBMISSIONS*
SOLICITORS OF RECORD:
O'REILLY & ASSOCIÉS
PARLEE MCLAWS LLP
HUTCHINS SOROKO & GRANT FOR PLAINTIFF
MACLEOD DIXON LLP FOR DEFENDANT
BLAKE, CASSELS & GRAYDON LLP FOR PLAINTIFF T-1254-92
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