Canada (Board of Internal Economy) v. Boulerice

Canada (Board of Internal Economy) v. Boulerice
Court (s) Database
Federal Court of Appeal Decisions
Date
2019-02-20
Neutral citation
2019 FCA 33
File numbers
A-332-17
Notes
Reported Decision
Decision Content
Date: 20190220
Docket: A-332-17
Citation: 2019 FCA 33
CORAM:
NOËL C.J.
STRATAS J.A.
LASKIN J.A.
BETWEEN:
BOARD OF INTERNAL ECONOMY AND SPEAKER OF THE HOUSE OF COMMONS
Appellants
and
BOULERICE ET AL. AND ATTORNEY GENERAL OF CANADA
Respondents
and
MAURICE VELLACOTT and THE SENATE OF CANADA
Interveners
Heard at Ottawa, Ontario, on November 14, 2018.
Judgment delivered at Ottawa, Ontario, on February 20, 2019.
REASONS FOR JUDGMENT BY:
NOËL C.J.
CONCURRED IN BY:
STRATAS J.A.
LASKIN J.A.
Date: 20190220
Docket: A-332-17
Citation: 2019 FCA 33
CORAM:
NOËL C.J.
STRATAS J.A.
LASKIN J.A.
BETWEEN:
BOARD OF INTERNAL ECONOMY AND SPEAKER OF THE HOUSE OF COMMONS
Appellants
and
BOULERICE ET AL. AND ATTORNEY GENERAL OF CANADA
Respondents
and
MAURICE VELLACOTT and THE SENATE OF CANADA
Interveners
REASONS FOR JUDGMENT
NOËL C.J.
[1] This is an appeal brought by the House of Commons management body, the Board of Internal Economy (also referred to as the Board), and the Speaker of the House of Commons (together, the appellants) from a decision of the Federal Court (2017 FC 942) per Gagné J. as she then was (the judge) dismissing their motions to strike four judicial review applications brought by Alexandre Boulerice and others (the respondents). The motions to strike were based on the contention that the decisions being challenged by the applications are covered by parliamentary privilege, and, as such, are immunized from judicial review and that the Board is not a “federal board, commission or other tribunal” under the Federal Courts Act, R.S.C., 1985, c. F-7 [Federal Courts Act].
[2] The respondents – 66 in T-304-15; 55 in T-1935-14 and 23 in T-1539-14 and T-1526-14 – were sitting New Democratic Party (NDP) Members of Parliament when their judicial review applications were launched in July and September 2014. They contend that four decisions made by the Board of Internal Economy, holding that they misused parliamentary funds and requiring them to repay the amounts improperly used, were arbitrary, contrary to parliamentary rules, politically motivated and made in bad faith.
[3] The intervener, Maurice Vellacott (Mr. Vellacott), is a former Conservative Party Member of Parliament. He was granted intervener status to provide context concerning his own judicial review application (presently in abeyance) challenging a decision of the Board. In his case, the Board held that he claimed per diem and related expenses in circumstances when none were payable given that his primary place of residence was in the National Capital Region rather than in Saskatchewan.
[4] The intervener, the Senate, supports the position of the appellants. It is concerned that the decision dismissing the motions to strike could affect rights and powers exercised by the Standing Senate Committee on Internal Economy, Budgets and Administration (the Senate Committee on Internal Economy), the management body of the Senate. This committee is governed by the same statute and operates essentially the same way as the Board of Internal Economy.
[5] In dismissing the appellants’ motions to strike, the judge found both that the Federal Court had jurisdiction to review decisions made by the Board like those of any other “federal board” acting pursuant to an Act of Parliament (section 2 of the Federal Courts Act) and that the decisions in issue were not covered by parliamentary privilege.
[6] For the reasons that follow, I am of the view that the judge erred in coming to these conclusions. Had she followed the principled approach set out by the Supreme Court in Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667 [Vaid], which precludes the courts from inquiring into the necessity of a legislated privilege when it is shown to come within an established category, she would have had to conclude that the decisions in issue are covered by parliamentary privilege and, therefore, cannot be judicially reviewed.
BACKGROUND
[7] The Board of Internal Economy, like the Senate Committee on Internal Economy, draws its powers from the Parliament of Canada Act, R.S.C. 1985, c. P-1 [the PCA]. Section 4 provides both the House of Commons and the Senate with the same privileges, immunities and powers, while section 5 declares those privileges to be part of the general and public law of Canada. Sections 19.1 and 50 acknowledge respectively the establishment of the Senate Committee on Internal Economy and the creation of the Board. Pursuant to section 52.3, the Board acts “on all financial and administrative matters respecting the House of Commons, its premises, its services and its staff; and the members of the House of Commons.” The Senate Committee on Internal Economy plays the same role and exercises the same powers for the Senate. This is best illustrated by the comparative table produced by the appellants (Appellants’ compendium, Tab 44) which has been appended to these reasons as Appendix “A”.
[8] From the time of Confederation to the enactment of the PCA and the creation of the Board in 1985, the House of Commons and the Senate enjoyed the privileges held by the United Kingdom House of Commons at the time of Confederation pursuant to section 1 of An Act to define the privileges, immunities and powers of the Senate and House of Commons, and to give summary protection to persons employed in the publication of Parliamentary Papers, S.C. 1868 (31 Vict.), c. 23. During this same period, the internal management of the House of Commons was the responsibility of the Commissioners of Internal Economy appointed by the Governor in Council under sections 1 and 2 of an Act respecting the internal Economy of the House of Commons and for other purposes, S.C. 1868 (31 Vict.), c. 27. Under this Act, only Members of the House who were also Members of the Queen’s Privy Council for Canada could be appointed as Commissioners. Practically speaking, this meant that the Commissioners were drawn from among the Ministers of the Crown.
[9] The Board was created in 1985 in response to recommendations made by a Special Committee of the House. Among the recommendations were that Members of the House become more involved in the management of the House and that the new Board better reflect the composition of the House.
[10] Members of the recognized parties of the House of Commons now constitute the Board. The Board is composed of the Speaker, two Members of the Queen’s Privy Council for Canada appointed by the Governor in Council, the Leader of the Opposition or the Leader’s nominee, and “other members” of the House of Commons who may be appointed from time to time to represent the opposition and governing parties (subsection 50(2) of the PCA). As a practical matter, under the rules, members of the governing party may hold the majority when matters come to be decided by the Board (subparagraph 50(2)(b)(ii) of the PCA). This reflects the manner in which the House operates when it legislates (section 49 of the Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5 [Constitution Act, 1867]).
[11] The Board sets out its rules on various matters including the use of parliamentary funds by way of by-Laws (subsection 52.5(1) of the PCA). It has exclusive authority to decide whether a member’s use of parliamentary funds was proper (subsection 52.6(2) of the PCA). It can investigate matters and may as a result make a direction, or a by-Law, refuse a request for funds, or act as it sees fit (section 10 of the Rules of Practice and Procedure of the Board of Internal Economy); various coercive measures may be used to impose compliance (section 19 of the Members By-Law).
[12] The Board of Internal Economy, acting through the Speaker, reports to the House and its minutes are tabled in the House. Members of the House may ask questions of a member of the Board designated by the Board during Question Period (subsections 37(2) and (3) and section 148 of the House of Commons Standing Orders).
[13] The Board has the capacity of a natural person and may enter into contracts and other arrangements with third parties (section 52.2 of the PCA). In order to provide continuity, members of the Board remain in office when Parliament is dissolved (section 53 of the PCA).
[14] In doing its work, the Board is supported by the House Administration (section 2 of the Governance and Administration By-Law). The House Administration is composed of the Clerk of the House of Commons and its employees, who are not Members of the House (sections 6 and 7 of the Governance and Administration By-Law). While powers of the Board may be delegated to the Clerk of the House of Commons and its employees, they remain subordinate to the Board (section 2 of the Governance and Administration By-Law).
THE CONTESTED DECISIONS
[15] Four decisions are challenged in the underlying judicial review applications. At the time they were made the Conservative Party was the governing party. According to the minutes of the Board, three Conservatives, two members of the NDP, one Liberal and the Speaker were present when these decisions were made. The two NDP members voted in dissent.
[16] The first two decisions dealt with inappropriate mailings. The first held that certain mailings contravened the Members By-Law (presumably subsection 4(3), paragraph 29(1)(e), and section 30) because they were made for political purposes. The second required that the related expenses be reimbursed by the Members who failed to adhere by this limitation.
[17] In the third decision, the Board determined that some NDP members inappropriately used parliamentary funds for expenses related to employment, telecommunications and travel. According to the Board, funds from the budget for Members’ offices were used to supplement the NDP’s National Caucus Research Budget. These budgets are for different purposes: the former is for Members of the House individually to discharge their parliamentary functions at specified locations – i.e., on Parliament Hill or in their constituencies – whereas the latter is for recognized parties to use for research offices (sections 24, 56 and 67 of the Members By-Law). No funds may be transferred between these budgets (Ibidem, section 70).
[18] The Board’s fourth decision required the repayment of some $2.7 million by the Members whose budgets were misused.
[19] In the applications for judicial review relating to the mailings, the respondents acknowledge that the decisions were rendered on the basis that the mailings “were in contravention of the Board’s By-Laws [because] they were performed for the benefit of a political party” (Applications for judicial review, Appeal Book, vol. III, pp. 853 and 861). However, they maintain that the decisions are “unreasonable and incorrect,” “contrary to the principles of natural justice,” and “contrary to the rule of law,” (Ibidem).
[20] The applications directed at the decisions relating to the use of individual Member’s budgets to supplement the NDP’s National Caucus Research Offices budget are based on the following grounds (Applications for judicial review, Appeal Book, vol. III, pp. 870 and 880):
- The decision[s] [are] unreasonable, arbitrary and incorrect;
- The decision[s] [are] contrary to the principles of natural justice and of fairness;
- The decision[s] [are] contrary to the rule of law;
- The decision[s] [are], in fact, an example of political bias and [were] made in bad faith;
- The decision[s] [are] absurd in the light of modern technologies that enable people to work everywhere;
- There is no legal basis for [these] decision[s] in Canadian law or in parliamentary rules;
- The decision[s] [are] illegal since members of Parliament are entitled by law to exercise their parliamentary functions “wherever” and in so doing, are entitled to make use of parliamentary resources to accomplish parliamentary functions.
THE FEDERAL COURT DECISION
[21] In dismissing the appellants’ motion to strike, the judge addressed two issues: whether decisions of the Board are subject to judicial review under the Federal Courts Act, and whether decisions of the Board relating to the use of resources by members are immunized from review by parliamentary privilege. Although these issues were addressed separately, she acknowledged that the answer to both questions “ought to be somewhat aligned” (Reasons, para. 10).
[22] Regarding the first issue, the judge concluded that the Board was not excluded from the Federal Courts’ jurisdiction under subsection 2(2) of the Federal Courts Act. Drawing a distinction between the Senate Committee on Internal Economy and the Board, the judge held that the former draws its powers from section 18 of the Constitution Act, 1867, but the Board does not (Reasons, paras. 19 and 20). As well, the judge noted that in addition to not being “as fundamental to our notion of democracy” as the Senate Committee on Internal Economy, the Board is a “subsidiary entity” (Reasons, para. 22). She also described the Board as different from regular committees, which originate not in statute but in Standing Orders of the House and parliamentary tradition, and exercise functions related to the legislative process (Reasons, paras. 27 and 28).
[23] In reaching her conclusion on the first issue, the judge found that the Board’s powers set out in the PCA are derived from an Act of Parliament, not from section 18 of the Constitution Act, 1867. Identifying section 52.3 of the PCA as the source of the powers exercised by the Board in this instance, she held that the Board’s decisions were made under a power conferred by an Act of Parliament. Therefore, they fell within the Federal Court’s jurisdiction under sections 18 and 18.1 of the Federal Courts Act.
[24] In disposing of the second issue – parliamentary privilege – the judge concluded that the appellants failed to demonstrate that immunizing the Board’s decisions from judicial review was necessary in order to protect the dignity and efficiency of the House (Reasons, para. 50).
[25] In reaching this conclusion, the judge first considered the category of parliamentary privilege related to proceedings in Parliament. She cited the Supreme Court’s statement in Vaid that “not everything that is said or done within the Chamber during the transaction of business forms part of proceedings in Parliament” (Reasons, para. 38). In her view, this category of parliamentary privilege was primarily aimed at protecting freedom of speech in the House of Commons. Relying on the decision of the Supreme Court of the United Kingdom in R. v. Chaytor, [2010] UKSC 52, [2011] A.C. 684 [Chaytor], she held that dealing with expense claims was not part of proceedings in Parliament (Reasons, paras. 36 to 41).
[26] Turning to the category of parliamentary privilege relating to internal affairs, she emphasized that this category should not be defined too broadly, as it could then encompass all the activities of Parliament (Reasons, para. 43). Instead, in her view, the appellants had to show that the “specific decisions of the Board on the use of resources and services by [M]embers of Parliament are necessary for upholding the dignity and efficiency of the House of Commons, and its capacity to function as a legislative body” (Reasons, para. 46). Because the appellants failed to demonstrate this, the judge concluded that the parliamentary privilege relating to internal affairs did not apply to immunize the Board’s decisions from judicial review.
[27] The judge’s reasons can also be read as holding that whatever privileges Parliament might have had in the past, they have since been abrogated or waived. Although she recognized that the Senate Committee on Internal Economy continues to hold the privileges which it had, this ceased to be the case insofar as the Board is concerned when regard is had to the provisions of the PCA and related amendments to the Federal Courts Act (Reasons, paras. 19, 21, 22, 24 and 30).
THE PARTIES’ POSITIONS
[28] Shortly before the hearing of the appeal, the Supreme Court released two decisions which bear on the issue of parliamentary privilege: Chagnon v. Syndicat de la fonction publique et parapublique du Québec, 2018 SCC 39 [Chagnon] and Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40, 426 D.L.R. (4th) 647 [Mikisew]. The parties and interveners were invited to supplement their memoranda of fact and law by filing supplementary written submissions addressing these decisions. The following description of the parties’ positions encompasses all of their submissions.
- The appellants
[29] The appellants argue that the parliamentary privileges held by the Board and the Senate Committee on Internal Economy are defined by the PCA but that their source is the Constitution of Canada. As these two bodies perform identical functions and both report to and are integral to their respective Houses, they should not be treated differently (Memorandum of the appellants, paras. 45 to 47).
[30] More generally, the appellants argue that the judge mischaracterized the role of the Board within the House. In this respect, they point to the history of the internal management of the House before the creation of the Board. Prior to 1985, managing the resources of the House was unequivocally integral to Parliament (Memorandum of the appellants, paras. 8 to 10). According to the appellants, the enactment of the PCA and the creation of the Board in 1985 did not alter this state of affairs.
[31] The appellants further argue that the parliamentary privilege being claimed is traceable to two established categories and that the judge committed a series of legal errors in failing to recognize this. A third category – discipline – was argued during the course of the hearing.
[32] Regarding the category of proceedings in Parliament, the appellants contend that the judge erred in restricting its scope to freedom of speech within the House (Memorandum of the appellants, para. 66). The appellants highlight the fact that her conclusion conflicts with the recently enacted subsection 52.2(2) of the PCA, which expressly provides that “proceedings of the Board are proceedings in Parliament.” Further, the appellants argue that Parliament correctly expressed the scope of the parliamentary privilege in enacting this provision. Relying on Vaid, R. v. Parliamentary Commissioner for Standards ex p. Al-Fayed, [1998] 1 W.L.R. 669, pages 7-8 and Re McGuinness’s Application, [1997] NI 359, pages 7-9, the appellants submit that what constitutes a proceeding in Parliament is “determined by the nature of the decision and function of the decision-maker or entity” (Memorandum of the appellants, para. 67). In this respect, the appellants highlight that the Board is composed of Members of Parliament who supervise the use of parliamentary resources which are essential and inextricably tied to their duties and responsibilities as Members of Parliament (Memorandum of the appellants, para. 68). According to the appellants, the judge misconstrued the decision of the Supreme Court of the United Kingdom in Chaytor by holding that the administrative and financial management functions in issue here are not protected by the recognized category of parliamentary privilege relating to proceedings in Parliament.
[33] Regarding internal affairs, the appellants argue that the decisions of the Supreme Court of the Northwest Territories in Villeneuve v. Legislative Assembly, 2008 NWTSC 41, [2008] 10 W.W.R 704 [Villeneuve] and of the Superior Court of Québec in Filion c. Chagnon, 2016 QCCS 6146 [Filion 2016] confirm that the internal management of parliamentary resources comes within this established category (Memorandum of the appellants, para. 77). In this regard, the appellants contend that the judge, at paragraph 45 of her reasons, erred in distinguishing these decisions on the basis that, in contrast, the matter in issue here does not concern the administration of allowances and benefits. In the alternative, should this Court conclude that the claimed privilege was not authoritatively established, the appellants submit that the test of necessity has been met (Memorandum of the appellants, paras. 81 to 88).
[34] The appellants also refer to the recent decisions of the Supreme Court in Chagnon and Mikisew, and argue that, although not determinative, both support their position that parliamentary privilege applies (Written submissions of the appellants, paras. 1 to 4).
- The respondents
[35] The respondents essentially adopt the reasons of the judge. They submit that the appellants mischaracterize the Board when they describe it as an integral component of the House and misapply the doctrine of parliamentary privilege, especially the test that the privilege must be shown to be necessary for the autonomy and dignity of the House.
[36] According to the respondents, the Board is an entity independent from the House, and the Board’s functions are administrative, not legislative (Memorandum of the respondents, paras. 22 and 36). Relying on Mikisew, they argue that the Board’s decisions would be covered by parliamentary privilege and, thus, immunized from judicial review only if they were part of the legislative process, which is described by the Supreme Court as “the development, passage, and enactment of legislation” (Written submissions of the respondents, paras. 10 and 16). The respondents suggest that House committees would fall within that definition (Memorandum of the respondents, paras. 10 to 13). However, they submit that contrary to House committees, which derive their powers and responsibilities from the Standing Orders of the House of Commons, the Board acts pursuant to the PCA (Memorandum of the respondents, para. 38). Because of this distinction, the respondents argue that the judge correctly ruled that the Board acted under statutory powers and was therefore subject to judicial review.
[37] Regarding new subsection 52.2(2) of the PCA, the respondents argue that it was introduced because of a recent change in the Board’s procedures that allowed the Board to have open meetings (Memorandum of the respondents, para. 16). Although the subsection was enacted “[f]or greater certainty”, the respondents argue that it is a legislative recognition that proceedings of the Board were not proceedings in Parliament when the decisions in issue were rendered (Memorandum of the respondents, para. 17).
[38] Finally, the respondents argue that in order to succeed, the appellants had to show that the privilege is necessary (Written submissions of the respondents, para. 27). They view Chagnon as requiring that necessity be addressed whenever a parliamentary privilege is claimed (Written submissions of the respondents, para. 4). This is consistent, they submit, with the fact that “parliamentary privilege is a concept which is becoming narrower in our times both in Canada and in most other democratic jurisdictions” (Memorandum of the respondents, para. 75). Relying on Chaytor and Vaid, they contend that necessity has not been demonstrated in this case and that the scope of the category was overstated (Memorandum of the respondents, para. 62).
- Mr. Vellacott
[39] Mr. Vellacott, in his capacity as intervener, takes the position that the two issues addressed by the judge merge into one. He submits that subsections 2(1) and 2(2) of the Federal Courts Act are appropriately read as statutory parallels to the common law of judicial review and parliamentary privilege (Memorandum of Mr. Vellacott, paras. 38 and 39). In his words, “judicial review jurisdiction ends where parliamentary privilege begins” (Memorandum of Mr. Vellacott, para. 45).
[40] Mr. Vellacott argues, citing Chaytor, that the management of House resources is not generally the subject of a parliamentary privilege. In his view, a distinction must be made between resolutions and orders that set allowable expenses and the implementation of such resolutions and orders by way of decisions (Memorandum of Mr. Vellacott, paras. 65 to 68). As evidence of the willingness of the courts in Canada to assume jurisdiction over the latter, counsel for Mr. Vellacott pointed to the decision of the Québec Superior Court in Filion c. Chagnon, 2013 QCCS 446 [Filion 2013].
[41] Responding to the appellants’ argument that the addition of subsection 52.2(2) to the PCA in 2017 establishes unequivocally that actions taken by the Board are proceedings in Parliament, Mr. Vellacott submits that identifying a parliamentary privilege and determining its scope is the role of the court and not that of Parliament (Memorandum of Mr. Vellacott, para. 69). In this regard, statutory law, which includes subsection 52.2(2) of the PCA, is presumed not to change the common law and therefore cannot be interpreted to extend the scope of the constitutional privilege (Memorandum of Mr. Vellacott, para. 70).
[42] Finally, Mr. Vellacott alleges that Parliament can only benefit from parliamentary privileges established in the United Kingdom after 1867 if it “enacts a law dealing with a privilege at some point after 1867, which has not happened” (Memorandum of Mr. Vellacott, para. 83). Therefore, he submits that Board decisions that apply By-Laws regarding expenses are not part of any historical privilege as the House of Commons of the United Kingdom “did not provide its House Members with expenses, or indeed even salaries, until 1911” (Memorandum of Mr. Vellacott, para. 84).
- The Senate of Canada
[43] The Senate intervenes only on the issue of parliamentary privilege, pointing out that neither the Senate nor the Senate Committee on Internal Economy is a “federal board, commission or other tribunal” within the meaning of section 2 of the Federal Courts Act (Memorandum of the Senate, para. 16).
[44] The Senate takes issue with the judge’s reliance on New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319, 100 D.L.R. (4th) 212 [New Brunswick Broadcasting] to hold that necessity for the parliamentary privilege had to be assessed in this case. It points out that a distinction in law exists as between legislated privileges adopted pursuant to section 18 of the Constitution Act, 1867 and section 4 of the PCA on the one hand, and inherent privileges that, when established under the test of necessity, enure to all legislative assemblies on the other (Memorandum of the Senate, para. 22). It relies upon Vaid at paragraph 37:
Nevertheless, the framers of the Constitution Act, 1867 thought it right to use Westminster as the benchmark for parliamentary privilege in Canada, and if the existence and scope of a privilege at Westminster is authoritatively established (either by British or Canadian precedent), it ought to be accepted by a Canadian court without the need for further inquiry into its necessity. This result contrasts with the situation in the provinces where legislated privilege, without any underpinning similar to s. 18 of the Constitution Act, 1867, would likely have to meet the necessity test (Harvey, at para. 73). (Emphasis added by the intervener, the Senate)
[45] According to the Senate, both the category of parliamentary privilege relating to proceedings in Parliament and the category relating to internal affairs apply in this case. Insofar as the latter is concerned, the Senate argues that the judge distinguished Villeneuve and Filion 2016 on “over-corrected” and “excessively narrow” grounds (Memorandum of the Senate, para. 27).
[46] Finally, the Senate submits that “[t]here can be few matters that speak more directly to the independence of a legislative body than protection from judicial (or executive) interference with that body’s own decisions regarding the use and allocation of its own resources by its own members. A contrary conclusion would…signal a radical upending of the constitutional separation of powers.” (Memorandum of the Senate, para. 30, emphasis in the original).
ANALYSIS AND DECISION
[47] The two issues addressed by the judge are inexorably linked: the jurisdiction of the Federal Court over the Board turns on whether it was acting pursuant to a power “conferred by or under an Act of Parliament” (section 2 of the Federal Courts Act), and this cannot be the case if the challenged decisions are protected by a parliamentary privilege originating in the Constitution Act, 1867. As the outcome of this case turns on whether parliamentary privilege applies, that is where the analysis should begin.
[48] The question whether the claimed privilege exists and whether the Board was acting within its scope is one of law. Therefore, it must be correctly decided (Chagnon, para. 17; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235).
[49] The judge offered three reasons for holding that the Board’s decisions are not protected by parliamentary privilege:
- In contrast to the Senate Committee of Internal Economy, the Board draws its powers from an Act of Parliament rather than the Constitution (Reasons, paras. 20 and 26).
- According to Chaytor, dealings with expense claims do not qualify as proceedings in Parliament (Reasons, paras. 36 to 41).
- Immunizing from judicial review decisions made by the Board concerning the management of Parliament’s internal affairs has not been shown to be necessary to preserve the dignity and efficiency of the House of Commons (Reasons, paras. 42 to 46 and 50).
[50] All of these conclusions were in error.
[51] As to the first reason offered by the judge, the functions performed by the Board are exactly the same as those performed by the Senate Committee on Internal Economy. Both are based on parliamentary privileges legislated in accordance with section 18 of the Constitution Act, 1867, and are constitutional in nature because they are an essential aspect of these legislative bodies’ autonomous functions. The fact that the privilege of the House of Commons and the Senate over their internal financial affairs were continued by legislative enactments, initially by section 1 of the Act to define the privileges, immunities and powers of the Senate and the House in 1868 and later by section 4 of the PCA, does not alter the constitutional origin of the power being exercised (Southam Inc. v. Canada (Attorney General), [1990] 3 F.C. 465 at 479-480, 73 D.L.R. (4th) 289 (C.A.) [Southam]).
[52] The rejection of the claimed privilege relying on Chaytor was also in error. Chaytor deals with individuals who were charged with false accounting in submitting expense claims while they were Members of the House of Commons or House of Lords. They claimed that their actions were covered by parliamentary privilege and that therefore they could not be prosecuted for their deeds (Chaytor, para. 1). The issue was not whether the expenses were incurred for a parliamentary purpose but rather whether the claimed expenses were incurred at all (Chaytor, para. 8). In holding that the appellants were not protected by parliamentary privilege, Lord Phillips – one of the three Justices who wrote and whose reasons, together with those of Lord Rodger, were endorsed by the majority – drew a distinction between decisions involving the implementation of existing rules and those involving the rules themselves. In his view, only the latter would be protected by privilege because in the United Kingdom, privilege over the former had been waived (Chaytor, para. 92):
…If an applicant sought to attack by judicial review the scheme under which allowances and expenses are paid the court would no doubt refuse the application on the ground that this was a matter for the House. Examination of the manner in which the scheme is being implemented is not, however, a matter exclusively for Parliament.
[53] As will be seen, there is no basis for holding that such a waiver has taken place in Canada. For now, I note that the respondents have attacked the scheme adopted by Parliament in at least two respects – i.e., by taking the position that they are entitled to payment of mailing costs without denying that these were incurred for political purposes and by asserting that modern technology has done away with the requirement that reimbursable office expenses be incurred in specific locations as the rules presently require (Applications for judicial review, Appeal Book, vol. III, pp. 853, 861, 870 and 880).
[54] Lastly, the judge’s conclusion that immunizing decisions relating to internal affairs from review by the courts had not been shown to be necessary in order to preserve the dignity and efficiency of the House disregards a fundamental aspect of Vaid. Vaid holds that when a legislated privilege at the federal level is shown to come within a recognized category of parliamentary privilege, a court must accept that necessity has been established (Vaid, paras. 29(9) and 37).
[55] The respondents have placed great reliance on the injustice which they say will result if judicial review of the Board’s decisions is not permitted. They allege a number of improprieties including bad faith. However serious these allegations are, they have no bearing on the question whether the privilege has been shown to exist or not. If it does, it lies within the exclusive competence of Parliament to determine whether its rules have been complied with (Vaid, para. 30).
[56] Vaid is the leading case on the issue of parliamentary privilege in this country. Unlike almost every case in this area of law, it has the distinction of being unanimous and has been repeatedly cited by courts and commentators in Canada, the United Kingdom and other countries with a Westminster-style constitution. As here, the parliamentary privilege in issue in Vaid was a legislated privilege. According to Vaid (at para. 39):
[…] the first step a Canadian court is required to take in determining whether or not a privilege exists within the meaning of the Parliament of Canada Act is to ascertain whether the existence and scope of the claimed privilege have been authoritatively established in relation to our own Parliament or to the House of Commons at Westminster (Ainsworth Lumber, at para. 44).
[57] As this passage indicates, legislated parliamentary privileges can originate from our own Parliament or from the United Kingdom. This is because of the combined effect of section 18 of the Constitution Act, 1867, as it was amended in 1875, and section 4 of the PCA. Section 18 of the Constitution Act, 1867, as amended, 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.
18. Les privilèges, immunités et pouvoirs que posséderont et exerceront le Sénat et la Chambre des Communes et les membres de ces corps respectifs, seront ceux prescrits de temps à autre par loi du Parlement du Canada; mais de manière à ce qu'aucune loi du Parlement du Canada définissant tels privilèges, immunités et pouvoirs ne donnera aucuns privilèges, immunités ou pouvoirs excédant ceux qui, lors de la passation de la présente loi, sont possédés et exercés par la Chambre des Communes du Parlement du Royaume-Uni de la Grande-Bretagne et d'Irlande et par les membres de cette Chambre.
I note that the use of the words “de la présente loi” in the French text is obviously in error when regard is had to the words “of such Act” in the English text which, being a United Kingdom statute, is the only official version.
Section 4 of the PCA provides in turn:
4. The Senate and the House of Commons, respectively, and the members thereof hold, enjoy and exercise
4. Les privilèges, immunités et pouvoirs du Sénat et de la Chambre des communes, ainsi que de leurs membres, sont les suivants :
(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
a) d’une part, ceux que possédaient, à l’adoption de la Loi constitutionnelle de 1867, la Chambre des communes du Parlement du Royaume-Uni ainsi que ses membres, dans la mesure de leur compatibilité avec cette loi;
(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.
b) d’autre part, ceux que définissent les lois du Parlement du Canada, sous réserve qu’ils n’excèdent pas ceux que possédaient, à l’adoption de ces lois, la Chambre des communes du Parlement du Royaume-Uni et ses membres.
[58] Legislated parliamentary privileges can extend to any enjoyed by the United Kingdom House of Commons and its Members at the time of the enactment of those privileges into Canadian law and paragraph 4(b) of the PCA authorizes Parliament to further define them by way of legislation (Vaid, para. 33; see also Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876, 137 D.L.R. (4th) 142 [Harvey], para. 66).
[59] In contrast, inherent parliamentary privileges derive their constitutional status “from the very nature of the institution” and from the founding colonies’ desire expressed in the preamble of the Constitution Act, 1867 to adopt “a Constitution similar in Principle to that of the United Kingdom […]” (New Brunswick Broadcasting, p. 351).
[60] Necessity for the protection of the dignity and efficiency of the House is the historical foundation for all parliamentary privileges (Vaid, para. 29(5)). However, at the federal level, once a legislated parliamentary privilege is shown to come within an established category, necessity need not be proven again (Vaid, para. 29(9)):
Proof of necessity is required only to establish the existence and scope of a category of privilege. Once the category (or sphere of activity) [for a claimed privilege] is established, it is for Parliament, not the courts, to determine whether in a particular case the exercise of the privilege is necessary or appropriate. In other words, within categories of privilege, Parliament is the judge of the occasion and manner of its exercise and such exercise is not reviewable by the courts: “Each specific instance of the exercise of a privilege need not be shown to be necessary” (New Brunswick Broadcasting, at p. 343 […] (Emphasis in the original removed).
[61] An established category is one whose existence and scope has been accepted as necessary in order to protect the dignity and efficiency of the House (Vaid, para. 29(6)). This demonstration can rest on judicial precedents from Canada, the United Kingdom and other Westminster democracies, on historical acquiescence or acceptance of the category relied upon by those affected by the parliamentary privilege (Vaid, paras. 29(8) and 37) and, I would add, because of the notable reliance placed on them by the courts in such matters, doctrinal opinions by recognized expositors of the law of parliamentary privilege.
[62] The parliamentary privilege claimed by the appellants is the exclusive right of the House to oversee and decide matters pursuant to internal rules governing the use made of funds and resources provided to Members of the House for the purpose of allowing them to perform thei