Gagliano v. Canada (Attorney General), 2005 FC 576

                                                                                                                                  Date: 20050427

                                                                                                                             Docket: T-2250-04

                                                                                                                        Citation: 2005 FC 576

OTTAWA, ONTARIO, APRIL 27, 2005

PRESENT:      MADAM JUSTICE DANIÈLE TREMBLAY-LAMER

BETWEEN:

                                      THE HONOURABLE ALFONSO GAGLIANO

                                                                                                                                            Applicant

                                                                           and

THE ATTORNEY GENERAL OF CANADA

THE HOUSE OF COMMONS

MR. CHARLES GUITÉ

                                                                                                                                      Respondents

                                                                           and

THE COMMISSION OF INQUIRY INTO THE

SPONSORSHIP PROGRAM AND ADVERTISING ACTIVITIES

                                                                                                                                          Intervener

                                    REASONS FOR JUDGMENT AND JUDGMENT

INTRODUCTION

[1]                At issue in this application for judicial review is the ability of counsel to cross-examine a witness in proceedings of a commission of public inquiry (the Gomery Commission) on the basis of the witness's past testimony before the Public Accounts Committee, a committee comprised of Members of Parliament. The Gomery Commission has ruled that Parliamentary privilege applies to the testimony before the committee, thus precluding counsel from using that testimony in cross-examination.

[2]                The task facing this Court is to review this decision and determine whether Parliamentary privilege indeed forestalls such cross-examination of the witness. In the course of this analysis, the Court must take into account some broader considerations. Parliamentary privilege brings into sharp relief issues at the core of our constitutional democracy: the proper role to be played by each part of government - the legislature, the executive and the judiciary - and the concomitant measure of deference owed by each part of government for the legitimate sphere of activity of the others.

[3]                Historically, successive cases in which the courts in the United Kingdom in the 16th and 17th centuries, at the behest of the Monarch, purported to usurp power and control over Parliamentary affairs led to the enactment of the Bill of Rights, 1689, (Eng.), 1 Will. & Mar. 2nd sess., ch. 2, expressly exempting specific areas of Parliamentary activity from judicial scrutiny. More importantly for present purposes, the Bill of Rights, 1689 codified the privilege of "freedom of speech", which is the basis for Commissioner Gomery's decision that cross-examination was not allowed. Although article 9 of the Bill of Rights has not been incorporated directly into Canadian constitutional law, the broad principles that flow from it apply and contribute to our understanding of the respective roles of courts and legislative bodies in Canada.

THE FACTS

[4]                The Commission of Inquiry into the Sponsorship Program and Advertising Activities (the Gomery Commission) was established by Order of the Governor in Council 2004-110, on February 19, 2004, pursuant to the Inquiries Act, R.S.C. 1985, c. I-11, Part I.

[5]                Under this Order in Council, the Gomery Commission was assigned the following terms of reference:

a.          to investigate and report on questions raised, directly or indirectly, by the Report of the Auditor General of Canada published in November 2003, with regard to the sponsorship program and advertising activities of the Government of Canada in relation to certain aspects described in the terms of reference;

b.          The Gomery Commission is to make recommendations to the Government of Canada to prevent mismanagement of sponsorship programs or advertising activities in the future.

[6]                Consequently, the Gomery Commission was given extensive powers of investigation on any question that it considered useful to the accomplishment of its terms of reference.

[7]                Beginning October 14, 2004, certain parties made various representations before Commissioner Gomery concerning the use of the transcripts of testimony given before the Public Accounts Committee of the House of Commons (the Parliamentary committee) and the privilege of Parliamentary immunity. At the time the issue was theoretical in nature since no objection had yet been raised in this regard.

[8]                On October 18, 2004, the House of Commons requested and was granted status by Commissioner Gomery as an intervener before the Commission in order to state its position on the possible use before the Commission of the testimony given to the Parliamentary committee.

[9]                On October 25, 2004, Commissioner Gomery asked counsel for the House of Commons to verify whether her client was prepared to waive the privilege of Parliamentary immunity if ever it was raised in the course of forthcoming questioning.

[10]            On November 8, 2004, counsel for the House of Commons informed the Gomery Commission of the progress on his request in regard to waiver of privilege. She also asked the Gomery Commission not to make any decision on the possible admission in evidence of what had been said before the Parliamentary committee before the House of Commons had made a decision as to lifting the privilege.

[11]            At the request of Commissioner Gomery, counsel for Mr. Alfonso Gagliano confirmed that he intended to cross-examine Mr. Charles Guité and that he intended to use the transcripts of Mr. Guité's testimony before the Parliamentary committee in part of his cross-examination.

[12]            Other counsel also informed the Gomery Commission of their intention to cross-examine Mr. Guité and whether or not they intended to use the transcripts of his testimony before the Parliamentary committee.

[13]            Commissioner Gomery therefore decided to suspend until November 22, 2004 the debate on the use of the transcripts of Mr. Guité's testimony before the Parliamentary committee pending a decision by the House of Commons on waiver of the privilege.

[14]            On November 22, 2004, counsel for the House of Commons announced at the Gomery Commission that the House had no intention of waiving the privilege of Parliamentary immunity pertaining to testimony before the Parliamentary committee.

[15]            However, it was during the cross-examination of Mr. Guité by Mr. Pratte, counsel for Mr. Jean Pelletier, that the objection concerning Parliamentary immunity was formally raised by Mr. Guité's lawyers.

[16]            The Honourable John H. Gomery issued a decision on November 22, 2004 (the decision on immunity) in which he upheld the objection of Mr. Guité's counsel.

[17]            On December 22, 2004, Mr. Gagliano's lawyers introduced the present application for judicial review of the decision on immunity.

[18]            The Federal Court issued an order allowing the intervention of the Gomery Commission and set down the matter for hearing on February 17, 2005. This order was amended by the order of March 23, 2005.

SUBMISSIONS OF THE PARTIES

[19]            The applicant essentially argues that Parliamentary privilege does not preclude him from cross-examining the respondent Guité during his testimony before the Gomery Commission concerning prior allegedly inconsistent statements made before a Parliamentary committee since the Commission has no power to convict or even recommend prosecution or civil proceedings.

[20]            At its origin, in 1689, the privilege was not extensive and was limited to protecting members of Parliament from any criminal proceedings based on words spoken in the House. Over time, the privilege was extended to allow members of Parliament protection from civil proceedings. Later, the protection was granted to committees of the Houses and to witnesses summonsed to testify before Parliament or one of its committees.

[21]            Thus, insofar as a witness was placed in a situation of self-incrimination, the idea was to ensure that he would have no reason to lie, since he could not be prosecuted or sued for remarks made in Parliament. However, no privilege may be claimed in opposition to the limited use of testimony before Parliament for the purpose of testing a witness's credibility in another proceeding.

[22]            The applicant relies on R. v. Murphy (1986), 64 A.L.R. 498, in which the Court held that a witness could be confronted with his contradictory testimony given before a senate committee when such questioning would not have any legal consequences for the witness. A witness is more apt to tell the truth when he knows he can be contradicted in some way or other than when he knows he will sheltered from the contradiction.

[23]            The House of Commons (the respondent) argues for its part that Parliamentary privileges are intended to protect the independence of the legislature from both the judiciary and the Crown, including a Crown commission of inquiry such as the Gomery Commission.

[24]            Moreover, the privilege must extend to the use of testimony for the purposes of cross-examination before the Commission. Indeed, although a commission of inquiry does not adjudicate civil rights, its decisions have an impact on witnesses' right to their reputation.

[25]            The witnesses called before a committee of the House of Commons must be able to freely express themselves without fear that their statements may later be used against them to attack their credibility.

[26]            Furthermore, if the credibility of a witness can be attacked in a commission of inquiry on the basis of what he stated before a committee of the House of Commons, there is a significant risk of usurping a jurisdiction that belongs solely to the House as well as a risk of contradictory decisions on these questions.

[27]            The privilege pertaining to freedom of speech and the privilege allowing the respondent to conduct an inquiry are constitutional. The Supreme Court of Canada has upheld the constitutional status of the Parliamentary privileges that have historically been considered necessary. Once a court find that it is a question that "falls within this necessary sphere of matters" without which the dignity and efficiency of the Assembly cannot be upheld, Parliament's exclusive jurisdiction over it must be recognized.

[28]            The privilege pertaining to freedom of speech extends to testimony given before a committee of the respondent and it should not be lifted other than through legislation explicitly to that effect.

[29]            The highest courts of the United Kingdom have held that testimony given before Parliamentary committees could not be used to impugn the credibility of a witness on cross-examination in a legal or other proceeding (Prebble v. Television New Zealand, [1995] 1 A.C. 321 (P.C.); Hamilton v. Al Fayed, [2000] 2 All E.R. 224 (H.L.)). The Murphy decision, supra, which was favourable to the plaintiff, was disapproved by the Privy Council.

[30]            In Canada, the Supreme Court of Canada has held that article 9 of the Bill of Rights, 1689 applied; at least, the principles underlying it are part of Canadian law and may contribute to our understanding of privilege. The decision of Commissioner Gomery is therefore justified.

[31]            The respondent Attorney General of Canada submits that in New Brunswick Broadcasting v. Nova Scotia, [1993] 1 S.C.R. 319 the Supreme Court of Canada did not have to rule on the source of the privilege in relation to the houses of the Parliament of Canada, but ruled instead in relation to provincial legislative assemblies.

[32]            Any analysis of the scope of the privileges of federal legislative assemblies must begin with a consideration of section 18 of the Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reproduced in R.S.C. 1985, App. II, No. 5, which grants the Parliament of Canada the power to make laws determining the extent of the privileges, immunities and powers of the Senate and the House of Commons, with only one exception. Parliament cannot confer any privileges exceeding those held by "the Commons House of Parliament of the United Kingdom" in 1867.

[33]            The Parliament of Canada has exercised the power conferred by section 18 of the Constitution Act, 1867, for example through the enactment of sections 4 et seq. of the Parliament of Canada Act, R.S.C. 1985, c. P-1, which refers to the privileges enjoyed by the Commons House of Parliament of the United Kingdom in 1867. Although the parties argued that these privileges included those set out specifically in article 9 of the Bill of Rights, 1689, in Canada it is the broad principles that flow from article 9 rather than the provision itself that apply: New Brunswick Broadcasting, supra.

[34]            As to the scope of article 9 of the Bill of Rights, the controversy persists since the decision of the Judicial Committee in Prebble, supra, was criticized by some judges of the Supreme Court of Queensland in Laurance v. Katter, [1996] 141 A.L.R. 447.

[35]            The respondent Mr. Guité relies on the submissions by the respondent House of Commons.

[36]            The intervener assumes that the decision on immunity is justified on the question of the existence of a Parliamentary immunity and makes submissions only on the effect of the decision on the procedural fairness to which the applicant is entitled.

[37]            The intervener argues that procedural fairness was observed in relation to Mr. Gagliano since he was given status as a party, was able to testify assisted by counsel, was able to cross-examine all witnesses and may make some final representations.

[38]            It is true that the cross-examination that the applicant's counsel will have conducted is not as extensive as the intervener would have wished, but this does not mean that his right to procedural fairness was breached if this limitation is imposed because the evidence he wished to introduce is comprised of privileged communications that are inadmissible as evidence.

Issue

[39]            The only question that is posed in this proceeding is the following:

Does Parliamentary privilege preclude a person from being cross-examined on his testimony before a commission of inquiry concerning prior allegedly inconsistent statements made in the context of proceedings of a Parliamentary committee?

ANALYSIS

1.         Applicable standard of review

[40]            The decision being judicially reviewed is that of Commissioner Gomery upholding the objections of Mr. Guité's counsel and refusing to allow Mr. Guité's cross-examination on his previous testimony before the Public Accounts Committee.

[41]            The reasons given for the decision indicate that it is based primarily on the scope of Parliamentary privilege. That is a pure question of law requiring the interpretation of complex historical jurisprudence in both Canada and abroad. The decision rendered will be of particular importance, generally speaking, for the conduct of future inquiries by Parliamentary committees as well for the balance between the roles and powers exercised by Parliament, the executive and the courts. Moreover, the Gomery Commission does not have any relative expertise in regard to this pure question of law. Consequently, the appropriate standard of review is correctness (see Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, and Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77).

[42]            The applicant's contention that this decision impacts upon procedural fairness is inaccurate. If the Commissioner's decision is correct, there can be no breach of procedural fairness in refusing cross-examination since the Commissioner has no choice but to apply the privilege.

[43]            The applicant's concerns do not constitute a challenge to the procedure that was used to reach the decision on the scope of Parliamentary privilege that is the subject of this judicial review. For example, the applicant is not taking the position that he was refused the possibility to make representations about the scope of Parliamentary privilege. Nor is he alleging that the Commission, in defining the effect of Parliamentary privilege, relied on certain evidence that had not been properly put before it.

[44]            In short, it is the decision on Parliamentary privilege that is being reviewed by this Court. In that sense, procedural fairness considerations are not relevant in relation to this exercise.

2.         Origins of Parliamentary privilege in Canada

[45]            Parliamentary privilege in Canada originates in both the common law and statute. Prior to Confederation, absent a specific grant from the Parliament of the United Kingdom, the common law principle was well established: privileges that were necessarily incidental to a legislature were deemed to exist (J.P. Maingot, Le privilège parlementaire au Canada, 2nd ed., (Ottawa: House of Commons and McGill-Queen's University Press, 1997), at p. 16).

[46]            In Stockdale v. Hansard (1839), 9 Ad. & E.I. 1112 (Q.B.), Lord Denman C.J. stated, at p. 1169: "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." The Privy Council affirmed the primacy of this common law principle of necessity in Kielley v. Carson (1842), 4 Moore 63, 13 E.R. 225.

[47]            The enactment of the Canadian Constitution, however, added a further layer to the source of Parliamentary privileges in Canada. Section 18 of the Constitution Act, 1867, as amended in 1875, (U.K.) 38 & 39 Vict., c. 38, 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 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.

[48]            Parliament then, pursuant to its statutory power in section 18, could be the source of a particular privilege provided that it did not exceed the privileges recognized and enjoyed by the House of Commons in the United Kingdom. This is manifestly different from section 49 of the Australian Constitution (Commonwealth of Australia Constitution Act 1901 (Cth.), c. 1), which directly incorporates those privileges existing in the United Kingdom unless and until the Parliament of Australia declares otherwise. Section 49 reads:

The powers, privileges and immunities of the Senate and the House of Representatives, and of the members of the committees of each House shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom and of its members and committees, at the establishment of the Commonwealth.

[49]            Subsequently, though, in 1868, the Canadian Parliament, by virtue of section 4 of the Parliament of Canada Act, expressly incorporated by reference those privileges, immunities and powers in existence in the United Kingdom. Section 4 states:

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, in so far 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.

[50]            The power to define these privileges by statute exists, but in order to determine what the powers, rights, immunities, and privileges of the Senate and House of Commons in Canada are, we must determine what the powers, rights, privileges and immunities of the British House of Commons were in 1867 (Maingot, supra, at p. 17).

[51]            That is why article 9 of the Bill of Rights, 1689 - the provision codifying freedom of speech in the United Kingdom - becomes important: in 1867, article 9 was clearly recognized as a Parliamentary privilege in the United Kingdom. It reads:

That the freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament.

[52]            However, as the Attorney General of Canada points out, caution is required before specifically incorporating this article in the Constitution of Canada. In New Brunswick Broadcasting, supra, the Supreme Court held that in Canada it is the broad principles which follow from article 9 of the Bill of Rights, 1689, rather than the provision itself, that apply.

[53]            There are two diametrically opposed lines of authority on the scope of article 9 and the extent of the protection afforded to anyone who testifies before a committee of the House of Commons of the Parliament of Canada.

[54]            In Stockdale v. Hansard, supra, the Court of Queen's Bench sought to give effect to the intention of article 9. Lord Denman, for example, stated at p. 1156 that "whatever is done within the walls of either assembly must pass without question in any other place". Lord Ellenborough and Lord Coleridge echoed this view in separate opinions, with the former commenting, at p. 1191, "that whatever is done or said in either House should not be liable to examination elsewhere."

[55]            A later case, Bradlaugh v. Gassett (1884), 12 Q.B.D. 271, applying article 9 to preclude the use of statements made in the House in the context of a defamation action, is a further illustration of this point. Lord Chief Justice Coleridge commented, at p. 275, that "[w]hat is said or done within the walls of Parliament cannot be inquired into in a court of law."

[56]            In Goffin v. Donnelly (1881), 6 Q.B.D. 307, Parliament had ordered that a Select Committee of the House of Commons be constituted to inquire into and report upon the circumstances in which the certificate of the plaintiff, a school master, had been suspended. The plaintiff had brought an action for slander against the defendant for statements he had given as a witness before the Select Committee. The defendant was not a Member of Parliament. The Court dismissed the action, ruling that the statements in question were privileged. No reference to the Bill of Rights,1689 was made; however, at p. 308, the Court did consider the broader interests at stake:

It may be a hardship upon individuals that statements of a defamatory nature should be made concerning them, but the interest, viz., that of public justice, to the administration of which it is necessary that witnesses should be free to give their evidence without fear of consequences. [¼] The House of Commons, in the performance of its functions and for the purposes of legislation, has to inquire into many matters, and among others the conduct of that department of government which deals with education. For the purposes of such inquiries committees are appointed, and require the attendance of witnesses. If persons so required to attend did not attend, they would be committed for contempt. If they do attend they must answer the questions asked of them, and may be examined on oath. The evidence given is, therefore, as much given under compulsion as in the case of a court of law. For these reasons this seems to me to be a stronger case of privilege than some of the occasions that have been held to be clearly privileged.

[57]            R. v. Wainscot, [1899] 1 W.A.L.R. 77, is essentially to the same effect. As in Goffin v. Donnelly, supra, the defendant was not a Member of Parliament. He was charged with bribery in connection with incidents occurring outside of the Parliament. The State Supreme Court ruled that, in the interest of fairness, the prosecution could not make use of evidence given by the defendant to a joint committee of the Houses of the Western Australian Parliament; the Committee's Standing Orders, which had been established by Parliament, provided for the protection of witnesses testifying before committees.

[58]            Conceivably then, the harm or problem sought to be protected against by article 9 of the Bill of Rights, 1689, and the harm which the courts were principally concerned with in Stockdale v. Hansard, supra, and Bradlaugh v. Gassett, supra was this: to prevent Members (or, by extension, witnesses) from suffering legal consequences in a court of law - whether civil or criminal - based upon what they say or do in the context of a Parliamentary proceeding.

[59]            Although long after the period we are presently concerned with - the time of Confederation in Canada - that is precisely the construction placed upon article 9 by Justice Hunt in Murphy, supra:

¼ statements made by courts in rejecting attempts to use curial proceedings in order to visit legal consequences upon members of Parliament (or witnesses before Parliamentary committees) for what they had said or done in Parliament or before such committees should not readily be extended to situations in which no such legal consequences are involved in the curial proceedings unless such an extension is both necessary and desirable. I have already pointed out that what is said and done in Parliament can without any breach of Parliamentary privilege be impeached and questioned by the exercise of ordinary citizens of their freedom of speech (whether or not in the media), notwithstanding the ear which such conduct may engender in members of Parliament (and committee witnesses) as to the consequences of what they say or do. In those circumstances, it can be neither necessary nor desirable in principle that what is said or done in Parliament should not be questioned (in the wider sense) in courts or similar tribunals where no legal consequences are to be visited upon such members (or witnesses) by the proceedings in question.

Freedom of speech in Parliament is not now, nor was it in 1901 or even in 1688, so sensitive a flower that, although the accuracy and the honesty of what is said by members of Parliament (or witnesses before Parliamentary committees) can be severely challenged in the media or in public, it cannot be challenged in the same way in the courts of law. It is only where legal consequences are to be visited upon such members or witnesses for what was said or done by them in Parliament that they can be prevented by challenges in the courts of law from exercising their freedom of speech in Parliament. It is only when that is the consequence of the challenge that freedom of speech in Parliament needs any greater protection from what is said or done in the courts of law than it does from what is said or done in the media or in the public.

[60]            Courts have continued to differ in their construction of article 9. In Prebble, supra, and Hamilton v. Al Fayed, supra, Lord Browne-Wilkinson did not expressly link his conclusion, that freedom of speech precluded the use of statements made in the course of a Parliamentary proceeding, with the fact that the parties might suffer legal consequences - both cases involved actions for defamation. Whereas in Buchanan v. Jennings, [2002] 3 N.Z.L.R. 145 (C.A.), aff'd by [2004] U.K.P.C. 36, and Laurance v. Katter, supra, the courts were more cautious in their approach to article 9. In short, the controversy over the precise interpretation and scope of this provision of the Bill of Rights, 1689 continues.

[61]            It is at least fair to say then that article 9 does not admit of only one construction. Its precise scope was not self-evident in 1867. Therefore it does not follow inexorably from article 9 that cross-examination of a witness, in a proceeding such as the present Commission where he faces no civil or legal consequences, is barred.

[62]            However, even assuming that the proper construction of article 9 in 1867 encompassed cross-examination in a proceeding devoid of legal consequences, as I stated earlier, the Supreme Court of Canada, in New Brunswick Broadcasting, supra, made clear that the powers and privileges extant in the United Kingdom and Canada are not necessarily one and the same. Moreover, McLachlin J. (as she then was), writing for the majority, and Lamer C.J., dissenting on other points, specifically refused to incorporate article 9 of the Bill of Rights, 1689 into Canada's Constitution (New Brunswick Broadcasting, supra, at pp. 374 and 354-55).

[63]            Rather, because the issue was not directly before the Supreme Court, the holding in New Brunswick Broadcasting, supra went no further than recognizing freedom of speech in some general sense as a form of Parliamentary privilege in Canada.

[64]            Nevertheless, the freedom of speech privilege exists in Canada buts its exact scope is undefined. Hence, in order to resolve the issue in this case - whether cross-examination based on evidence obtained by a Parliamentary committee is barred by this freedom of speech privilege - I must return to the test of necessity established at common law.

[65]            In New Brunswick Broadcasting, supra at pp. 383-84, the Supreme Court of Canada described this test as follows:

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 the questions concerning such privilege. All such questions will instead fall to the exclusive jurisdiction of the legislative body.

...

The parameters of this jurisdiction are set by what is necessary to the legislative body's capacity to function. So defined, the principle of necessity will encompass not only certain claimed privileges, but also the power to determine, adjudicate upon and apply those privileges. Were the courts to examine the content of particular exercises of valid privilege, and hold some of these exercises invalid, they would trump the exclusive jurisdiction of the legislative body, after having admitted that the privilege in issue falls within the exclusive jurisdiction of the legislative body. 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.

[66]            With this test in mind, I turn now to determine whether cross-examination of the witness is protected by Parliamentary privilege. Three brief points must first be made:

[67]            First, members of Parliament, like witnesses, are the holders of Parliamentary privileges vis-a-vis the Crown and the judiciary: New Brunswick Broadcasting, supra. The Gomery Commission acts pursuant to a decision of the Government (the Crown) to order an inquiry (Dixon v. Canada (Governor in Council), [1997] 3 F.C. 169 (F.C.A.)). Accordingly, the Commission cannot contravene the Parliamentary privileges enjoyed by the House of Commons any more than the civil or criminal courts can do so.

[68]            Second, in New Brunswick Broadcasting, supra, the Supreme Court was considering whether the plaintiff broadcasters had a right of access to a provincial House of Assembly, as opposed to the House of Commons. However, there is no doubt in my mind that the test of necessity applies to the federal context as well. McLachlin J., in particular, commented repeatedly about the test of necessity and legislative bodies - whether provincial or federal (New Brunswick Broadcasting, supra, at pp. 375, 381 and 383).

[69]            Third, one final excerpt from New Brunswick Broadcasting, supra at 387, is noteworthy in signalling the need to consider the current context:

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?

[70]            Thus, since it is not certain whether the power to protect a witness against cross-examination in a proceeding where there is no legal consequence fell within the ambit of the free speech privilege existing in the United Kingdom at the time of Confederation, the Court must focus attention on the Canadian context of 2005 and determine whether this privilege passes the test of necessity.

[71]            While jurisprudence from the United Kingdom and other jurisdictions with similar Parliamentary systems such as Australia will be important in resolving the present dispute, the essential question is the following: Is the right to preclude cross-examination of witnesses using evidence given before Parliamentary committees necessary to Parliament's functioning in Canadian democracy as it exists?

3.          Is the power to preclude cross-examination necessary to the functioning of the Parliament committee?

[72]            In my opinion, the power to preclude cross-examination of witnesses using evidence obtained in previous proceedings of Parliament falls within the scope of Parliamentary privilege because it is necessary to the functioning of Parliament. It is necessary at three levels: to encourage witnesses to speak openly before the Parliamentary committee, to allow the committee to exercise its investigative function and, in a more secondary way, to avoid contradictory findings of fact.

(a) To encourage witnesses to speak openly before the Parliamentary committee

[73]            In the instant case, the objective of the Public Accounts Committee was to fathom what had happened to the money from federal finances used in the context of the federal sponsorship program. To do this, the committee sought to examine a number of persons involved in that program. And if this exercise was to be useful, it was essential that the committee be able to encourage the witnesses to speak frankly during their testimony.

[74]            The longstanding justification for the privilege of free speech is this: it protects the capacity of both Parliamentarians and witnesses to speak freely without fear of being questioned later. As we saw earlier, this justification goes back to the court decisions preceding even the Bill of Rights, 1689 itself and the courts have subscribed to it for centuries: see, for example, Goffin v. Donnelly, supra.

[75]            This justification has also persuaded the modern courts. Lord Browne-Wilkinson, on behalf of the House of Lords and the Judicial Committee of the Privy Council, has defended this view on many occasions. In the Prebble judgment, supra, for example, he unequivocally rejected the proposition (accepted by a judge in Murphy, supra) that a narrower construction of article 9 would promote greater freedom of speech:

In their Lordships' view the law as stated by Hunt J. [in R. v. Murphy (1986), 64 A.L.R. 498] was not correct so far as the rest of the Commonwealth is concerned. First, his views were in conflict with the long line of dicta that the courts will not allow any challenge to what is said or done in Parliament. Second, as Hunt J. recognized, his decision was inconsistent with the decision of Browne J. in Church of Scientology of California v. Johnson-Smith [1972] 1 Q.B. 522 (subsequently approved by the House of Lords in Pepper v. Hart [1993] A.C. 593) and Comalco Ltd. V. Australian Broadcasting Corporation (1983) 50 A.C.T.R. 1, in both of which cases it was held that it would be a breach of privilege to allow what is said in Parliament to be the subject matter of investigation or submission.

Finally, Hunt J. based himself on a narrow construction of article 9, derived from the historical context in which it was originally enacted. He correctly identified the mischief sought to be remedied in 1689 as being, inter alia, the assertion by the King's Courts of a right to hold a Member of Parliament criminally or legally liable for what he had done or said in Parliament. From this he deduced the principle that article 9 only applies to cases in which a court is being asked to expose the maker of statement to legal liability for what he has said in Parliament. This view discounts the basic concept underlying article 9, viz. the need to ensure so far as possible that a member of the legislature and witnesses before committees of the House can speak freely without fear that what they say will later be held against them in the courts. The important public interest protected by such privilege is to ensure that the member or witness at the time he speaks is not inhibited from stating fully and freely what he has to say. If there were any exceptions which permitted his statements to be questioned subsequently, at the time when he speaks in Parliament he would not know whether or not there would subsequently be a challenge to what he is saying. Therefore he would not have the confidence the privilege is designed to protect. [Emphasis added.]

[76]            Lord Browne-Wilkinson repeated these words in Hamilton v. Al Fayed, supra. Thus, for Lord Browne-Wilkinson, the public interest that is protected by the privilege is to ensure that a witness, when he testifies before a Parliamentary committee, is not impeded from speaking freely.

[77]            That is my opinion, too. I believe it is important to Canadian democracy that a witness be able to speak openly before a Parliamentary committee. This objective will be accomplished if the witness does not fear, while he is testifying before this committee, that his words may subsequently be used to discredit him in another proceeding, irrespective of whether or not it entails legal consequences. He is more likely to speak with confidence if he is given the assurance that he is fully protected by privilege and cannot be interrogated subsequently.^[1]

[78]            Uncertainty as to the scope of the privilege that is granted to him may accentuate a witness's feeling of vulnerability and prevent him from speaking openly, which would obviously reduce the effectiveness of hearings before Parliamentary committees.

[79]            It is not easy, of course, to demonstrate such a proposition with certainty (which probably explains the controversy on the matter), since it is obvious that human reactions may vary from one individual to another. I recognize that for some people, complete protection may lull them into a false impression of security.

[80]            Despite that, caution urges me to follow the opinion of the highest courts, which have held that it is necessary to extend the privilege to every proceeding: Prebble, supra, and Hamilton v. Al Fayed, supra.

(b)         To allow the committee to exercise its investigative function

[81]            Historically, the cases have acknowledged the need for privileges that allow legislative bodies to investigate. These privileges were clearly recognized in 1867. As Lord Denman stated in Stockdale v. Hansard, supra, at p. 1156:

The Commons of England are not invested with more of power and dignity by their legislative character than by that which they bear as the grand inquest of the nation. All the privileges than can be required for the energetic discharge of the duties inherent in that high trust are conceded without a murmur or a doubt.

[82]            This characterization of the principal role of Parliament and the privileges that are needed to fulfill that role was clearly accepted in Canada as well. In Canada (Attorney General) v. P.E.I. (Legislative Assembly), [2003] P.E.I.J. No. 7 (P.E.I.S.C.), Cheverie J. stated:

[23]    In the Canadian context, the intervener cites the case of Ex parte Dansereau (1875), 19 L.C.J. 210 (Q.B. - Appeal Side), reprinted in J.R. Cartwright, Cases Decided on the British North America Act, 1867, vol. II (Toronto: Warwick & Sons, 1887) at 165. This case is cited in support of the proposition that legislative assemblies in this country have the right to summon witnesses and have them produce documents; this right is inherent Parliamentary privilege; and the power was exercised as far back as the 1800's. I do not intend to quote extensively from that case, except to refer to page 190 of the case report where the following appears:

Responsible Government, which has been recognised in the Local as well as in the constitution of the General Government, would be a delusion if that power of enquiry was denied, and the enquiry would be valueless without the power of summoning witnesses. I consider this to be a necessary incident of the powers of Legislatures, and of controlling the administration of public affairs, and as such I believe that the House of Assembly had a right to exercise it, ...

The intervener goes further and refers to McNab v. Bidwell and Baldwin (1830), Draper 144 at 156 (K.B.). In that pre-confederation case, the Court of King's Bench of Upper Canada had the following to say at p. 156:

It is my opinion that the right of enquiry for the purpose of enabling the legislature to exercise their constitutional functions is necessarily incident to both branches; for I do not see how they could join in making laws for the good government of the King's subjects without obtaining the information requisite to form a correct opinion of the measures and alterations proper to be adopted. I think this is an inherent right essential to every legislature. And the right of examination implies a right to compel the answering of all such questions as the law of the land will sanction.

[24]    On a review of the authorities cited, I am satisfied the right of the Legislative Assembly of Prince Edward Island to summon witnesses and have them produce documents is necessary for the proper functioning of the assembly, and, therefore, meets the test for recognition as an inherent privilege. It satisfies the test articulated by the Supreme Court of Canada in New Brunswick Broadcasting. It is difficult to imagine how the legislative assembly could properly conduct an inquiry within its constitutional jurisdiction without the power to summon witnesses and require the production of records and documents.

...

[32]    There is no doubt but that the Committee has the power to issue the summons in question; that it derives that power from the legislative assembly; that the power is rooted in Parliamentary privilege; and it is not for this Court to inquire into how that power was exercised.

[83]            I agree with these comments. And by extension, in my opinion, the discretionary authority to protect witnesses from cross-examination based on their testimony to Parliament may also be characterized as a privilege that is necessary for the proper functioning of Parliament in matters of investigation or inquisition.

[84]            To characterize the power to preclude cross-examination as a privilege of free speech or investigation does not alter the underlying justification: Parliament must be able to provide this protection to witnesses appearing before Parliamentary committees for the purpose of discerning the facts and resolving the question or retracing the events under investigation. Stripped of this power to provide such protection to witnesses, Parliament and its committees could not function; hence its necessity.

[85]            Furthermore, any assessment by the Court as to whether it is appropriate to provide such protection in this case would in my opinion lead to an examination of how this investigative privilege is exercised, contrary to the fundamental distinction adhered to in New Brunswick Broadcasting, supra. The Court is empowered to examine the existence and the scope of a power or privilege claimed by Parliament, but not to regulate the exercise thereof. McLachlin J. used an analogy to further explain this fundamental distinction: "[T]he important question is whether we are here treating the fruit of the legislative tree [i.e. the exercise of the power], or the tree itself [i.e. the existence of the power]."

[86]            Also, the reasons in support of the resolution precluding cross-examination, adopted by the House of Commons and found in the fourteenth report of the Standing Committee on Procedure and House Affairs, clearly emphasize this: witnesses have been assured that their testimony would be protected by Parliamentary privilege and it is in the best interest of Parliament to ensure that this assurance is upheld.

[87]            If, at the same time, the House has some reasons to believe that witnesses are not speaking the truth before a committee, despite its efforts to encourage them to express themselves freely, Parliament alone is primarily responsible for initiating proceedings and punishing such deceptive conduct.

[88]            In theory, I am not bound by this resolution,^[2] and since I have concluded that this privilege, whether characterized primarily as a privilege of free speech or a privilege of investigation, meets the test of necessity, I need not consider it. However, I think the reasons mentioned in support of the resolution are useful insofar as they illustrate the fundamental distinction between the nature and task of the Court - to rule on the existence and scope of the privilege invoked - and the task in which the Court should not engage, questioning the exercise of a privilege.

(c)         To avoid contradictory findings of fact, or "the old dualism"

[89]            There is a third and final reason why I think the power to preclude cross-examination in a subsequent proceeding is needed for the functioning of a Parliamentary committee: to exclude the possibility that contradictory findings of fact will be made in the two respective proceedings, the Parliamentary committee and the Gomery Commission, caught by this review.

[90]            At the time when the Bill of Rights, 1689 was enacted, proceedings were frequently brought in the courts, at the behest of the king, against elected representatives for things they had done while in office. The Bill of Rights, 1689 was intended to protect Members of Parliament against acts of the other branches of government: the Crown, the executive and the courts. It included the idea that Parliamentary privilege, more specifically freedom of speech, would avert what was referred to as "the old dualism",^[3] to avoid the possibility that concomitant proceedings in Parliament and the courts would lead to different results for the parties involved.

[91]            Lord Browne-Wilkinson alluded to this problem in Pepper v. Hart, [1993] A.C. 593, and ably summarized it in the Prebble judgment, supra, at p. 334:

... to allow it to be suggested in cross-examination or submission that a member or witness was lying to the House could lead to exactly that conflict between the courts and Parliament which the wider principle of non-intervention is designed to avoid. Misleading the House is a contempt of the House punishable by the House: if a court were also to be permitted to decide whether or not a member or witness had misled the House there would be a serious risk of conflicting decisions on the issue.

[92]            Although it was, in principle, stated in obiter, the House of Lords later upheld the finding in Prebble, supra, in Hamilton v. Al Fayed, supra, in which the facts more closely resemble the present situation.

[93]            In that case, the Committee on Standards and Privileges of the U.K. House of Commons asked the Parliamentary Commissioner for Standards to conduct an inquiry into the allegations that Hamilton, a Member of Parliament, had received money payments and other benefits from Al Fayed, a private citizen, in return for tabling questions in Parliament on his behalf. Al Fayed repeated the allegations in a television interview while the investigation was under way. The Commissioner subsequently found in his report that Hamilton had in fact received such benefits. The House of Commons committee held further hearings and essentially confirmed the Commissioner's findings. After the House approved the committee's report, Hamilton commenced libel proceedings against Al Fayed who, in turn, applied to have the proceedings stayed on the strength of Parliamentary privilege.

[94]            The House of Lords ultimately held that section 13 of the Defamation Act 1996 (U.K.), 1996, c. 31, enacted as the above events were unfolding, which allowed members of Parliament to waive Parliamentary privilege in order to prove they had been defamed, settled the question: the stay could not be granted because Hamilton had waived his privilege. However, the court expressed the opinion, at p. 231, that if the Defamation Act 1996 had not existed, no cross-examination could be allowed:

It is in my judgment firmly established that courts are precluded from entertaining in any proceedings (whatever the issue which may be at stake in those proceedings) evidence, questioning or submissions designed to show that a witness in Parliamentary proceedings deliberately misled Parliament. To mislead Parliament is itself a breach of the code of Parliamentary behaviour and liable to be disciplined by Parliament: see Church of Scientology of California v. Johnson-Smith, [1972] 1 All E.R. 378, [1972] 1 Q.B. 522, British Railways Board v. Pickin, [1974] 1 All E.R. 609 at 629, [1974] A.C. 765 at 800 per Lord Simon of Glaisdale. For the courts to entertain a question whether Parliament had been deliberately misled would be for the courts to trespass within the area which Parliament has the exclusive jurisdiction.

[Emphasis added.]

[95]            The applicant submits that he is not asking the Commissioner to decide whether Mr. Guité was telling the truth before the Parliamentary committee, but that he examine Mr. Guité's testimony in order to test his credibility before the Commission.

[96]            However, if the cross-examination of the respondent Guité were to lead him to admit that he made inconsistent statements before the Parliamentary committee and the Gomery Commission, the Commissioner would have to ask himself whether Mr. Guité had misled the committee.

[97]            Even if the Commissioner did not question the truth of Mr. Guité's testimony before the committee, it cannot be demonstrated that the cross-examination will not have the effect of casting an unfavourable judgment on what Mr. Guité told the committee.

4.          Procedural fairness

[98]            The applicant contends that the Commissioner breached procedural fairness in denying cross-examination on Mr. Guité's prior allegedly inconsistent statements. As I pointed out, this contention is inaccurate. If the Commissioner's decision is correct, it cannot constitute a breach of procedural fairness to deny cross-examination since the Commission has no choice but to apply the privilege.

[99]            Nevertheless, it is important in my view, given the circumstances, to close by recalling the principles of procedural fairness that apply in respect of a commission of inquiry.

[100]        It is trite law that procedural fairness varies according to the type of body that must apply it. A commission of inquiry is not a court. It is therefore not bound to observe procedural fairness in the same way as a body having decision-making power (Boyle v. Canada, [1997] F.C.J. No. 942; Beno v. Canada, [2002] 3 F.C. 499).

[101]        The applicant relies on R. v. Kuldip, [1990] 3 S.C.R. 618, in which the Supreme Court of Canada had stated that it was permissible to cross-examine a witness on a prior statement but only for the purpose of attacking his credibility and not to incriminate him. I do not find this argument persuasive.

[102]        Although I recognize that the protection afforded by section 13 of the Canadian Charter of Rights and Freedoms (the Charter) approximates the protection afforded by article 9 of the Bill of Rights, 1689, our context differs from that of Kuldip, supra.^[4]

[103]        In that case, the witness's cross-examination had occurred in a court, where the witness was confronted with a charge of failing to remain at the scene of an accident with intent to escape civil or criminal liability, contrary to s. 233(2) of the Criminal Code, R.S.C. 1970, c. C-34.

[104]        That situation contrasts sharply with the nature of the Gomery Commission. The Commissioner does not have the power to convict, but can only make recommendations, as Cory J. noted in Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System [the Krever Commission]), [1997] 3 S.C.R. 440, at p. 460:

A commission of inquiry is neither a criminal trial nor a civil action for the determination of liability. It cannot establish either criminal culpability or civil responsibility for damages. Rather, an inquiry is an investigation into an issue, event or series of events. The findings of a commissioner relating to that investigation are simply findings of fact and statements of opinion reached by the commissioner at the end of the inquiry. They are unconnected to normal legal criteria. They are based upon and flow from a procedure which is not bound by the evidentiary or procedural rules of a courtroom. There are no legal consequences attached to the determinations of a commissioner. They are not enforceable and do not bind courts considering the same subject matter.

[105]        The right to cross-examine will sometimes be an aspect of procedural fairness (see, for example, Krever, supra), while on other occasions it will not (see, for example, Beno, supra). In my opinion, denying the applicant the right to cross-examine the witness in one respect - concerning his testimony before the Parliamentary committee - satisfies the requirements of procedural fairness. The applicant has been granted status as a party, he has been able to testify assisted by counsel, he has likewise been able to cross-examine all of the witnesses, including Mr. Guité (except on prior statements made by him before the Parliamentary committee) and he can make some final representations.

[106]        Moreover, as the Commissioner himself noted, even without resorting to Mr. Guité's prior testimony before the committee, it is possible for him to draw some satisfactory conclusions about Mr. Guité's credibility, in view of his experience as a judge, the documentation appearing on the record, the prior contradictory statements that Mr. Guité might make in some place other than before this particular committee, and the usual clues used by triers of fact, such as the way in which witnesses conduct themselves, the possible contradictions appearing in their testimony and the evidence provided by the other witnesses.

DISPOSITION

[107]        The events and circumstances that triggered the inquiry by the Public Accounts Committee of the House of Commons and, in turn, the establishment of the Gomery Commission and this judicial review illustrate the interface among the various branches of government while pointing to the concomitant need to respect the legitimate sphere of jurisdiction of each.

[108]        Parliamentary privilege helps to demarcate the legitimate spheres of jurisdiction, and is therefore a fundamental aspect of our constitutional democracy. It makes those powers, privileges and immunities which are necessary to Parliament's functioning in the present Canadian context subject to the exclusive jurisdiction of Parliament. It is my opinion that precluding cross-examination based on evidence presented to a Parliamentary committee is necessary for that committee, primarily because it encourages witnesses to speak openly.

[109]        It is also essential to the proper functioning of the committee in its investigative or inquisitorial role. And it forecloses the possibility that a finding of fact by a court or a commission of inquiry will contradict a finding of fact by a Parliamentary committee or Parliament as a whole.

[110]        Since this power falls within the exclusive jurisdiction of Parliament, it is impossible to accept any proposition that the applicant was denied procedural fairness when the Commission denied the cross-examination. Neither the Commission nor the Court is in a position to question the way in which Parliament chooses to exercise its privileges; to do so would be contrary to our constitutional structure.

[111]        Accordingly, the Commission's decision on Parliamentary immunity was correct and the application for judicial review is dismissed with costs.

                                           JUDGMENT

THE COURT ORDERS THAT:

The decision of Commissioner Gomery on Parliamentary immunity is upheld.

The application for judicial review is dismissed with costs.

                                                                   "Danièle Tremblay-Lamer"            

                                                                                                   Judge                             

Certified true translation

Jacques Deschênes, LL.B.

                                     FEDERAL COURT

                              SOLICITORS OF RECORD

DOCKET:                                            T-2250-04

STYLE:                                                THE HONOURABLE ALFONSO GAGLIANO

AND

THE ATTORNEY GENERAL OF CANADA, THE HOUSE OF COMMONS, MR. CHARLES GUITÉ

AND

THE COMMISSION OF INQUIRY INTO THE SPONSORSHIP PROGRAM AND ADVERTISING ACTIVITIES

PLACE OF HEARING:                      MONTRÉAL, QUEBEC

DATE OF HEARING:                        APRIL 12, 2005

REASONS FOR JUDGMENT:        MADAM JUSTICE TREMBLAY-LAMER

DATED:                                               APRIL 27, 2005

APPEARANCES:

SOLICITORS OF RECORD: