Gagliano v. Canada (Attorney General)

Gagliano v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2005-04-27
Neutral citation
2005 FC 576
File numbers
T-2250-04
Notes
Reported Decision
Decision Content
Federal Court Reports Gagliano v. Canada (Attorney General) (F.C.) [2005] 3 F.C. 555
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 c