Pankiw v. Canada (Human Rights Commission)

Pankiw v. Canada (Human Rights Commission)
Court (s) Database
Federal Court Decisions
Date
2006-12-21
Neutral citation
2006 FC 1544
File numbers
T-1329-05
Notes
Reported Decision
Decision Content
Date: 20061221
Docket: T-1329-05
Citation: 2006 FC 1544
Ottawa, Ontario, December 21, 2006
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
JIM PANKIW
Applicant
and
CANADIAN HUMAN RIGHTS COMMISSION
Respondent
and
KEITH DREAVER, NORMA FAIRBAIRN, SUSAN GINGELL,
PAMELA IRVINE, JOHN MELENCHUK, RICHARD ROSS, AILSA WATKINSON, HARLAN WEIDENHAMMER, and CARMAN WILLET
Respondents
and
SPEAKER OF THE HOUSE OF COMMONS
Intervener
REASONS FOR JUDGMENT AND JUDGMENT
1. Introduction and Background
[1] This is a judicial review application from a preliminary jurisdictional decision of a Canadian Human Rights Tribunal (the Tribunal) dated July 21, 2005 holding it had constitutional and statutory jurisdiction to hear and determine nine complains referred to it by the Canadian Human Rights Commission (the Commission).
[2] During his time as a Member of Parliament, Dr. Pankiw, the applicant in these proceedings, authored and distributed an information brochure known as the “householder” to his constituents in the riding of Saskatoon- Humbolt. The householder is printed and paid for under the auspices of the House of Commons. Each M.P. is entitled to send up to four householders per year to constituents. Dr. Pankiw was defeated in the 2004 elections.
[3] The nine complainants Keith Dreaver, et. al., allege in October 2003, Dr. Pankiw distributed a householder containing discriminatory comments about Aboriginal peoples contravening sections 5, 12 and 14 of the Canadian Human Rights Act, (CHRA). I set out in Appendix A to these reasons sections 5, 12, 13 and 14 of the CHRA.
[4] None of the parties’ records contain a copy of the Commission’s investigation report or the Commission’s decision sending the matter to the Tribunal nor did those records contain a copy of any of the complaints filed or a copy of the householder in question.
[5] Before any evidence was taken, the Speaker of the House of Commons (the Speaker) who was granted intervener status, brought a preliminary motion before the Tribunal claiming it did not have statutory or constitutional jurisdiction to investigate the complaints touching on activities he had undertaken as a Member of Parliament.
[6] The Tribunal heard argument on this motion on an agreed statement of facts in early March, 2005 at a time, the Supreme Court of Canada had under reserve the case of Canada (House of Commons) v. Vaid which it decided on May 20, 2005, reported as [2005] 1 S.C.R. 667.
[7] The grounds for the preliminary objection on jurisdiction were: (1). The arguments put before the Supreme Court of Canada in Vaid, (2) The preparation and sending of householders to all constituents is not a “service” as that term is used in sections 5 and 14 of the CHRA. (3) The Board of Internal Economy of the House of Commons has exclusive jurisdiction to determine the proper use of householders and (4) Political speech is subject to review only by the electorate in the democratic process and review by the Tribunal, a government decision-maker, of the contents of a Member of Parliament’s communications with his constituents, particularly that of an opposition M.P. would violate the constitutional principle of the separation of powers and Parliamentary privilege.
[8] The agreed facts were:
(a) In October, 2003 Dr. Jim Pankiw, then independent Member of Parliament for the riding of Saskatoon-Humbolt, had printed and delivered, in his capacity as a Member, a “householder” that the complainants allege contains material that is discriminatory;
(b) A householder is a printed brochure sent to each householder within a constituency by each Member of Parliament. Each Member may send up to four householders per year;
(c) The householders are printed by the House of Commons;
(d) The authority to have householders printed by the House of Commons is found in the Members’ Offices Bylaw, Bylaw 301, of the Board of Internal Economy of the House of Commons. This Bylaw is elaborated upon in the Manual of Allowances and Services for Members of the House of Commons;
(e) As at the date of this agreed statement of facts, the Supreme Court of Canada has heard the case of Vaid v. The House of Commons, SCC File 29564, on September 13, 2004 and has reserved its decision;
(f) June 28, 2004 Dr. Pankiw was defeated in the 38th general election.
[Emphasis mine]
[9] The issues raised in this judicial review application are the following:
1. Does Parliamentary Privilege apply to the sending of householders resulting in an absolute immunity from external review outside the House itself?
2. Does the Tribunal’s jurisdiction offend the separation of powers?
3. Does the Tribunal’s jurisdiction offend democratic principles and the guarantee of freedom of expression?
4. Does the Board of Internal Economy’s exclusive jurisdiction to review the proper use of funds or services by an M.P. oust the Tribunal’s jurisdiction to deal with a complaint of discrimination under the CHRA in respect of the content of a householder?
5. Should this court deal, at this stage, with the issue of whether the sending of a householder to constituents “is a service customarily available to the general public” within the meaning of section 5 and 14 of the CHRA or whether the content of the householder breaches section 12 of that statute?
[10] The applicant’s record contains the affidavit of Charles J. Duperreault. At the relevant time, Mr. Duperreault was an articling student at the House of Commons. His affidavit is very brief. He states the complainants filed human rights complaints regarding the content of a householder issued by a Member of Parliament to his constituents and adds that “Since the complaints related to the functions of a Member of Parliament, the House of Commons brought a motion challenging the jurisdiction of the Tribunal to hear the matter”, attaching as Exhibit “A” to his affidavit, the Notice of Motion raising the preliminary objection. He indicates the Commission and the House of Commons agreed to proceed on the motion based on an agreed statement of facts which he appends as Exhibit “B”. Finally, in his affidavit, he deposes to the date of the Tribunal’s hearing and the date of its decision. He was not cross-examined on his affidavit.
[11] The record of the respondent Commission was not supported by any affidavit. The respondent complainants did not participate in this judicial review.
[12] The record of the intervener, the Speaker of the House of Commons, (as prime mover of the jurisdictional motion before the Tribunal) was supported by the affidavit of Robert R. Walsh, sworn on January 25, 2006. Mr. Walsh is the Law Clerk and Parliamentary Counsel of the House of Commons. He deposes as follows:
“1. I am the Law Clerk and Parliamentary Counsel of the House of Commons and as such have knowledge of the matters deposed to herein.
2. As Law Clerk and Parliamentary Counsel, I am responsible for providing legal advice and representation for the House of Commons, the Administration of the House of Commons, as well as for Members of Parliament in respect of legal and legislative matters. I am also a Table Officer of the House of Commons. As the Law Clerk, I attend meetings of the Board of Internal Economy.
3. I have been employed at the House of Commons for 14 years. From 1991 to 1996 I was General Legislative Counsel, from 1996 to 1999 I was also Director of the Committees Branch of the House and in December 1999 I was appointed to the position of Law Clerk and Parliamentary Counsel with responsibility for both legislative counsel and legal counsel services.
4. Communications between Members of Parliament and their constituents is generally regarded by members as an important part of their parliamentary responsibilities and necessary for the effective carrying out of their parliamentary function.
5. At the present time a Member’s primary means of communication with constituents is through publications called “householders” and “ten percenters”, which are unaddressed mass mailings to constituents.
6. As noted in the Affidavit of Charles Duperreault, filed by the Applicant, the sending of these publications is regulated by the Board of Internal Economy of the House of Commons through its By-laws and the Manual of Allowances and Services. In addition, provisions of Canada Post Corporation Act enable this material to be delivered as mail without postage. That Act also allows Members of Parliament to send mail under a postage-free frank and for members of the public to send mail without postage to Members.
7. Indicative of the importance attached to the use of householders and ten percenters by Members, in the last year there have been six points of privilege raised in the House alleging breaches of privilege relating to the franking privilege, householders and ten percenters (February 15, April 18, May 3, May 4, May 10, and November 3, 2005). In all cases the Speaker determined that a prima facie case of breach of privilege was established. In four instances the matter was referred in the usual manner to the House of Commons Standing Committee on Procedure and House Affairs for further consideration. Attached as Exhibit “A”, “B”, “C”, “D” are extracts from the Journals of the House of Commons for the four referrals to committee. Attached as Exhibit “E” is the Speaker’s ruling of February 15, 2005, resolving that issue in the fifth instance without referral to a committee.
8. In the sixth point of privilege, raised on November 3, 2005, which related to the content of a particular householder, the matter was debated in the House over four sitting days. The Journals of the House of Commons relating to this debate are found at Tabs 1 and 2 of Volume 2 of the Application Record.
9. In addition to these several points of privilege, questions relating to content permissible in householders and ten percenters are often brought to House legal counsel by Members, Caucus research bureaus and House Administration (printing and postal).
10. Given my experience at the House of Commons over the last 14 years and the recent rulings and proceedings in the House of Commons and its Committees, it is apparent that Members of Parliament consider the ability to communicate with their constituents, in an unfiltered fashion, an important aspect of their parliamentary function.” [Emphasis mine]
[13] Mr. Walsh was not cross-examined on his affidavit.
[14] On April 25, 2006, pursuant to section 57 of the Federal Courts Act, the applicant served and filed a Notice of Constitutional Question stating that he intends to question “the constitutional applicability of sections 5, 12 and 14 of the Act [CHRA] to the publication and distribution of “householders” by Members of the House of Commons.”
[15] The Vaid case was one involving an employee of the House of Commons, a chauffeur to the Speaker of the House, who made a complaint to the Commission alleging, inter alia, a refusal to continue his employment by the Speaker was based on a prohibited ground of discrimination. The Commission referred the matter to the Tribunal whose jurisdiction was challenged, the Speaker and the House of Commons claiming that the Speaker’s power to hire, manage and dismiss employees was within a category of Parliamentary privilege and therefore immune to external review by the courts or the Tribunal. The Tribunal dismissed the challenge. On an application for judicial review, both the Federal Court, Trial Division, as it then was, and the Federal Court of Appeal upheld the Tribunal’s decision.
[16] In the Supreme Court of Canada, the Vaid case turned on two points: First, the existence and scope of the Parliamentary privilege claimed, i.e., “the management of its employees” and second, whether the availability of a grievance under the Parliamentary Employment and Staff Relations Act (PESRA) ousted the investigative and dispute resolution machinery under the Canadian Human Rights Act on the facts of the case.
[17] In Vaid, Justice Binnie, writing the Court’s reasons for judgment, decided the Parliamentary privilege claimed by the Speaker over all the House of Commons’ employees was over-broad and did not include support staff such as Mr. Vaid but he had no doubt “the privilege attaches to the House’s relations with some of its employees” (paragraph 75). On the other hand, he allowed the appeal, taking the view Mr. Vaid should have proceeded under PESRA rather than to the Tribunal whose jurisdiction was thereby ousted.
[18] Justice Binnie stated the case law and learned authors defined Parliamentary privilege as “in the Canadian context is the sum of the privileges, immunities, and powers enjoyed by the Senate, the House of Commons, and the provincial legislative assemblies, and by each member individually, without which they could not discharge their functions” (paragraph 29.2). The onus lies on those who assert the privilege to establish that “the category and scope of privilege they claim do not exceed those that at the passing of the Parliament of Canada [were] held, enjoyed and exercised by the Commons’ House of Parliament of the United Kingdom…and by the members thereof” (paragraph 53). See also paragraph 38 of his reasons where Justice Binnie refers to section 18 of the Constitution Act, 1867 as the basis for his proposition at paragraph 53 of his reasons.
[19] He set up a two-step test to determine this issue. At paragraph 39 of his reasons he stated “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, (PCA) 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” and to answer this question, he examined both Canadian and British authority on the question considering judicial pronouncements, historical documents, committee reports and the writings of learned authors on the issue of the existence and scope of Parliamentary privilege. As Appendix B to these reasons I set out the relevant provisions of the PCA.
[20] At paragraph 40 of his reasons, he described the second step as arising “when a claim to privilege comes before a Canadian court seeking to immunize Parliamentarians from the ordinary legal consequences of the exercise of powers in relation to non-Parliamentarians, and the validity and scope in relation to the U.K. House of Commons and its members have not been authority established, our courts will be required (as the British courts are required in equivalent circumstances) to test the claim against the doctrine of necessity, which is the foundation of all Parliamentary privilege” adding “Of course in relation to these matters, the courts will clearly give considerable deference to our own Parliament’s view of the scope of autonomy it considers necessary to fulfill its functions”, cautioning, “If a dispute arises between the House and a stranger to the House, as in the present appeal it will be for the courts to determine if the admitted category of privilege has the scope claimed for it” emphasising “This adjudication … goes to the existence and scope of the House’s jurisdiction not to the propriety…in any particular case.” [Emphasis mine]
[21] He re-stated that Parliamentary privilege at paragraph 41 is defined “By the degree of autonomy necessary to perform the Parliament’s constitutional function” quoting Sir Erskine May or as defined by Maingot in terms of necessary immunity to members of Parliament or the provincial legislators in order for “those legislators to do their legislative work” and to the question “Necessary in relation to what question?”, therefore, “the answer is necessary to protect legislators in the discharge of their legislative and deliberative functions, and the legislative assembly’s work in holding the government to account for the conduct of the country’s business.”[Emphasis Mine]
[22] At paragraph 44, he was of the view there had to be “A purposive connection between necessity and the legislative function” quoting an extract from the British Joint Committee Report on Parliamentary privileges that:
“The dividing line between privileged and non-privileged activities of each House is not easy to define. Perhaps the nearest approach to a definition is that the areas in which the Courts ought not to intervene extend beyond proceedings in Parliament, but the privileged areas must be so closely and directly connected with proceedings in Parliament that intervention by the courts would be inconsistent with Parliament’s sovereignty as a legislative and deliberative assembly.” [Emphasis by Justice Binnie]
[23] Concluding at paragraph 46, Justice Binnie wrote as follows:
“All of these sources point in the direction of a similar conclusion. In order to sustain a claim of Parliamentary privilege, the assembly or member seeking its immunity must show that the sphere of activity for which privilege is claimed is so closely and directly connected with the fulfilment by the assembly or its members of their functions as a legislative and deliberative body, including the assembly’s work in holding the government to account, that outside interference would undermine the level [page 700] of autonomy required to enable the assembly and its members to do their work with dignity and efficiency.” [Emphasis mine].
[24] As an aside to Justice Binnie’s analysis in my view, his statement is important because it seems to recognize that the traditional “walls of Parliament” foreclosure may be permeated to limited extent.
2. The Tribunal’s Decision
[25] The Tribunal rejected the submissions advanced by the applicant supported by the Speaker they were:
1. The Board of Internal Economy of the House of Commons (the Board) had exclusive jurisdiction to deal with the complaints on the basis of section 50 and following of the PCA;
2. He enjoyed parliamentary immunity from having the complaints investigated and adjudicated by the Tribunal;
3. The CHRA did not apply to Dr. Pankiw;
4. The doctrine of the separation of powers between the Legislative and Executive Branches of Government disentitled the Tribunal, as part of the Executive, from otherwise exercising its jurisdiction to investigate and adjudicate upon the complaints.
[26] I deal with each of the Tribunal’s findings separately.
(a) Exclusive jurisdiction of the Board
[27] This first issue, the exclusive jurisdiction of the Board of Internal Economy of the House of Commons, (the Board) was raised in the context of the proper use of House resources. It was argued the Board has the exclusive authority to oversee householders, including their content.
[28] The Tribunal made the following factual findings on this point:
“Householders are printed using the resources of the House of Commons. Funding for householders is provided by the Board of Internal Economy of the House of Commons. The Board exists pursuant to section 50 and following of the Parliament of Canada Act, (PCA). Members of the Board include government and opposition Members of the House of Commons. It is chaired by the Speaker of the House. The Board’s functions are to act on all financial and administrative matters in respect of the House of Commons, its premises, services and staff, as well as its Members.”
[29] As mentioned, Appendix B to these reasons set out certain provisions of the PCA. Those related to the Board are found in sections 50 to 54. Certain By-laws made by the Board are set out in Appendix C and the Members’ Service Manual statements dealing with householders are at Appendix D.
[30] The Tribunal concluded the Board did not have exclusive jurisdiction to deal with complaints about the content of “householders” in the face of the provision of subsection 52.6(1) of the PCA which reads:
SECTION 52.6
Exclusive authority
52.6 (1) The Board has the exclusive authority to determine whether any previous, current or proposed use by a member of the House of Commons of any funds, goods, services or premises made available to that member for the carrying out of parliamentary functions is or was proper, given the discharge of the parliamentary functions of members of the House of Commons, including whether any such use is or was proper having regard to the intent and purpose of the by-laws made under subsection 52.5(1).
[Emphasis mine]
SECTION 52.6
Compétence exclusive
52.6 (1) Le bureau a compétence exclusive pour statuer, compte tenu de la nature de leurs fonctions, sur la régularité de l’utilisation — passée, présente ou prévue — par les députés de fonds, de biens, de services ou de locaux mis à leur disposition dans le cadre de leurs fonctions parlementaires, et notamment sur la régularité de pareille utilisation au regard de l’esprit et de l’objet des règlements administratifs pris aux termes du paragraphe 52.5(1).
[Je souligne]
[31] Whether the sending of householders constituted a parliamentary function as defined by the Board in its Bylaw 101 was not an issue for the Tribunal since, according to it, would not lead to a conclusion of exclusive jurisdiction in Vaid, above it was held the CHRA was a quasi-constitutional document and an exemption from its provision must be clearly stated. It could not find such clear statement for the following reasons.
[32] First, it stated paragraph 52.6 (1) of the PCA, on its face, contained no reference on the non-application of the CHRA or the ousting of the Tribunal’s jurisdiction.
[33] Second, the Tribunal examined the dictionary meaning of “proper” and the expression “régularité” used in the French text. It said the term “régularité” is more closely associated with the notion of administrative regularity and chose this meaning because “Such reading is more consistent with the direction given in paragraph 52.6(1) of the PCA that the Board should, in determining whether the use of House resources was proper, have regard to the intent and purpose of the By-Laws made under subsection 52.5(1), [of the PCA].”
[34] Third, it found the printing of householders is specifically addressed in Members’ Offices By-law No. 301 concluding:
“It is obvious from a reading of the by-laws that their intent and purpose is to regulate the administration of House resources (e.g. purchasing office equipment, printing stationery, leasing office space, remunerating staff, etc.). The by-laws do not contain provisions touching upon human rights principles, nor, for that matter “decent” or “respectable” conduct to use the definition of “proper” suggested by the Respondent, [Dr. Pankiw].”
[35] The Tribunal derived comfort from the Ontario Court of Appeal’s decision in Ontario c. Bernier, [1994] A.O. no. 647 and the Québec Court of Appeal’s judgment in R. v. Fontaine, [1995] A.Q. No. 295. It said “At issue in both cases was whether section 52.6(1) ousted the jurisdiction of the courts to hear a case involving charges that a Member had used the funds allocated to him by the Board in a manner that contravened the Criminal Code” and concluded both appellate courts found otherwise, holding that 52.6(1) “only gives the Board authority to determine if a Member of the House of Commons used these resources in a manner consistent with the by-laws.” adding “significantly, the term “by-laws” of the English text of section 52.5 and 52.6 is rendered as “règlements administratifs” in the French version.” [Emphasis mine].
[36] The Tribunal closed this issue writing:
“As Madame Justice Arbour commented at paragraph 4 of the Bernier decision, Parliament established the Board to exclusively manage the internal workings of the House of Commons. In doing so, Parliament did not express an intention to remove from the courts their jurisdiction to apply the Criminal Code to Members. In our opinion, the same conclusion can be drawn with respect to the authority of the Tribunal to determine if there has been a violation of the CHRA. Parliament has not shown an intention to exclude Members, and particularly, their householders, from the application of the CHRA.” [Emphasis mine].
(b) Parliamentary privilege or Immunity
[37] On this point, the Tribunal concluded the scope of Parliamentary privilege did not cover the sending of householders to constituents. It reasoned:
“14. Nor does it appear to us that the PCA and section 52.6, in particular, extends the scope of any privilege or immunity from which Members may benefit. Parliamentary privilege provides Members with an absolute immunity from civil or criminal prosecution when speaking in the House of Commons or engaged in a proceeding in Parliament (see J.P.J. Maingot, Parliamentary Privilege in Canada, Second Edition). Over the years, the assertion of Parliamentary privilege has varied in its scope and extent. But as the Supreme Court of Canada noted in Vaid, (at paragraph 23), a narrower concept of privilege has developed in most recent times. The Court referred to a 1971 ruling of the Speaker of the House who stated that Parliamentary privilege “does not go much beyond the right of free speech in the House of Commons and the right of a Member to discharge his duties in the House as a Member of the House of Commons.
15. The respondent, [Mr.Pankiw] agrees that the immunity attached to Parliamentary privilege does not extend to statements or publications made by Members outside of the House or parliamentary proceedings. Thus, members of legislatures are not immune from criminal prosecution from statements made to the press outside the Chambers of Parliament (see re.Ouellet (Nos. 1 and 2) [1976] C.A. 788), nor from liability in defamation actions for answers given to a reporter outside a legislature (see Ward v. Clark, 2000 BCSC, 979). It follows that there is no immunity from the application of the CHRA.” [Emphasis mine]
(c) Does the CHRA apply to a Member of Parliament?
[38] Dr. Pankiw argued before the Tribunal the legislative scheme of the CHRA does not apply to him because he lacks the appropriate “federal” quality that would make him subject to the federal human rights scheme. He is not engaged in a federal work, undertaking or business, nor is he part of the federal Crown or the Government of Canada advancing, “the only factor that brings him within the federal sphere of activity is that in communicating with his constituents through a householder, he is carrying out his parliamentary function as a member of the House of Commons.” The Tribunal viewed Dr. Pankiw’s argument as being premised on his contention the legislative authority over a member of the House of Commons is limited to the PCA.
[39] The Tribunal rejected this argument in the following terms:
“The purpose and scope of the CHRA is articulated in section 2 and is not as limitative as the respondent suggests in his submissions. The provision states that the purpose of the CHRA is to give effect, “within the purview of matters coming within the legislative authority of Parliament” to the principles of equal opportunity elaborated therein.
In our opinion, the statutory language of the CHRA is broad enough to also encompass statements made by Members in householders published and paid for by the House of Commons, pursuant to an Act of Parliament, the PCA. Since Parliament enacted this legislative framework, which ultimately regulates householders, it is plain that the publication and content of householders must also fall within the purview of matters coming within Parliament’s legislative authority.” [Emphasis mine]
(d) The doctrine of the separation of powers
[40] The last of Dr. Pankiw’s arguments to shield himself from the reach of the CHRA turns on the doctrine of the separation of powers between the legislative and the executive branches of government. He argues this doctrine would be breached or undermined if an administrative tribunal such as the Tribunal which, he argues, is not constitutionally distinct from the executive, were allowed to examine and decide upon the content of a Parliamentarian’s communications with constituents.
[41] According to the Tribunal, the underpinning of Dr. Pankiw’s argument on this point is
a reference to the Supreme Court of Canada’s decision in Re Alberta Legislation [1938] S.C.R. 100 on how Parliament functions, “it works under the influence of public opinion and public discussion. It derives its efficiency from free public discussion and “the freest and fullest analysis” and examination from every point of view of political proposals.”
[42] The Tribunal stated Dr. Pankiw contended, “The expression of political views by a member of the House of Commons is political speech and should be subject only to review by the electorate through the democratic process.”
[43] The thrust of his argument, according to the Tribunal, is that, “no outsider, particularly an agent of the executive branch of the State, should be able to interfere with this free and unfettered debate and exchange of ideas in the legislature.” Dr. Pankiw argued, the Tribunal said, “the Government should not have any say or control over the free speech of a member of the House, particularly of the Opposition” further submitting “Allowing the review of contents of householders and other forms of Members’ political speech would limit their ability to fully express their views. This, in turn, would have a chilling effect on the free and public debate of various opinions. It would also result in denying the electorate their Member’s real point of view by preventing access to full and frank information required to make a completely informed decision.”
[44] The Tribunal did not accept these arguments for various reasons.
[45] First, it cited the Supreme Court of Canada conclusion in Bell Canada v. Canadian Telephone Employees Association [2003] 1 S.C.R 884, that the Canadian Human Rights Tribunal “had a high degree of independence from the executive branch”. The Tribunal concluded, “In our opinion, given this finding of the Supreme Court, to treat the Tribunal as an arm of “the Government” for the purposes of this case is highly questionable.”
[46] Second, the Tribunal acknowledged Justice Binnie’s words at paragraph 21 in Vaid, above, that each branch of government, (the executive, the legislative and the judicial) “is vouchsafed a measure of autonomy from the others” and “Parliamentary privilege is one of the ways in which the fundamental constitutional separation of powers is respected.” [Emphasis mine]
[47] The Tribunal also quoted from Justice Binnie’s words at paragraph 20 in Vaid, above,
“…nor is doubt thrown by any party on the need for its legislative activities to proceed unimpeded by any external body or institution, including the courts. It would be intolerable, for example, if a Member of the House of Commons who was overlooked by the Speaker at question period could invoke the investigatory powers of the Canadian Human Rights Commission with a complaint that the Speaker’s choice of another Member of the House discriminated on some grounds prohibited by the Canadian Human Rights Act, or to seek a ruling from the ordinary Courts that the Speaker’s choice violated the Member’s guarantee of free speech under the Charter. These are truly matters “internal to the House” to be resolved by its own procedures…” [Emphasis mine].
[48] The balance of Justice Binnie’s words in this paragraph which the Tribunal did not quote is:
“Quite apart from the potential interference by outsiders in the direction of the House, such external intervention would inevitably create delays, disruption, uncertainties and costs which would hold up the nation’s business and on that account would [page 681] be unacceptable even if, in the end, the Speaker’s rulings were vindicated as entirely proper.” [Emphasis mine]
[49] The Tribunal interpreted the thrust of Justice Binnie’s comments as:
“There is no doubt that statements made by a Member in the House constitutes an inherently legislative function that is subject to the immunity associated with Parliamentary privilege. No outside authority may interfere with this activity either. But as we have already stated, Parliamentary privilege does not attach to statements in householders that are distributed to constituents. In our opinion, this situation is not analogous to the example given by the Supreme Court in Vaid, supra…” [Emphasis mine]
[50] Third, nor, in the Tribunal’s opinion, was the situation before it, analogous to the fact situation in the Federal Court of Appeal’s decision in Taylor v. Canada (Attorney General), [2000] 3 F.C. 3, a case in which a human rights complaint under the CHRA had been filed against a judge of the then Ontario Court, (General Division). The judge, in that case, had allegedly ordered the complainant, who was seated in his courtroom, to remove a headdress that he wore as part of his religious practice. In the Tribunal’s view, the Federal Court of Appeal in Taylor above held that “the principle of judicial immunity applied so as to prevent human rights proceedings against judges from being brought before the Commission and ultimately, the Tribunal. It continued “the principle of judicial immunity exists to ensure that judges can perform their duty with complete independence and free from fear.”
[51] The Tribunal referred to Dr. Pankiw’s submission that just as the principle of judicial independence must be protected so must that of the legislative branch. The Tribunal distinguished Taylor on the factual context noting the Federal Court of Appeal said “the orders for the control of order or decorum in the court room during the course of a trial fall within the inherent jurisdiction of the court and that the judge had engaged in a purely judicial act to which judicial immunity attached” [Emphasis mine]
[52] Fourth, the Tribunal distinguished the case before it from that of Ontario (Speaker of the Legislative Assembly) v. Ontario (Human Rights Commission) (2001), 54 O.R. (3d) 595, decided by the Ontario Court of Appeal.
[53] In that case, a human rights complaint was filed with the Ontario Human Rights Commission in which it was alleged that the daily recital of the Lord’s Prayer by the Speaker of the Ontario Legislature was in breach of the Ontario Human Rights Code. In the Tribunal’s view of that case, “the issue was whether the daily recital of the Lord’s Prayer was a matter inherently related to the conduct of proceedings within the legislature. The Court found this to be the case and therefore the Code did not apply because of the parliamentary immunity.”
[54] The Tribunal concluded its ruling on this point with the following statement:
“Finally, we would also note that although the Supreme Court in Re: Alberta Legislation, emphasized the importance in our democracy of maintaining free public opinion and discussion, these rights are not absolute. The Court recognized that these values are subject to legal limits, such as the provisions of the Criminal Code and the common law. The Charter and the CHRA equally impose legal limits on free public opinion and discussion.” [Emphasis mine]
3. Analysis
(a) Standard of Review
[55] In this case, the standard of review of the Tribunal’s findings is correctness. This was the standard adopted by my colleague Justice Tremblay-Lamer in Canada (House of Commons) v. Vaid [2002] 2 F.C. 583 when she reviewed the Tribunal’s finding it had jurisdiction over the House of Commons and the former Speaker and it had statutory jurisdiction over the applicant.
[56] In coming to this conclusion on the standard of review, Justice Tremblay-Lamer relied upon the Supreme Court of Canada’s decision in Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554 to the effect curial deference does not extend to findings of law in which the Tribunal had no particular expertise. She also relied upon the Ontario Court of Appeal’s decision in Ontario (Speaker of the Legislative Assembly) v. Ontario (Human Rights Commission), above, where Justice Finlayson found no deference should be accorded “on an issue as fundamental as the decision of the Commission to assert jurisdiction over the activities of the Speaker.”
(b) Preliminary legal observations
[57] Based on Justice Binnie’s reasons in Vaid, above, I make the following preliminary observations which, in my view, provide the legal framework governing the analysis in this case.
[58] First, at paragraph 29.1 he wrote: “Legislative bodies created by the Constitution Act, 1867 do not constitute enclaves shielded from the ordinary law of the land”, citing from the Supreme Court of Canada’s decision in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319 at pages 370-371, “the tradition of curial deference does not extend to everything a legislative assembly might do, but is firmly attached to certain specific activities of Legislative Assemblies, i.e., the so-called privileges of such bodies”, and further citing the U.K. Joint Committee on Parliamentary privilege that “privilege does not embrace and protect the activities of individuals whether members or non-members, simply because they take place within the precincts of Parliament.” [Emphasis mine]
[59] Second, at paragraph 29.3, he wrote, “Parliamentary privilege does not create a gap in the general public law of Canada but is an important part of it, inherited from the Parliament at Westminster by virtue of the preamble of the Constitution Act, 1867 and in the case of the Canadian Parliament, through section 18 of the same Act.”
[60] Third, at paragraph 33, he drew a distinction between inherent versus legislated privilege pointing out “However, unlike the Provinces, the Federal Parliament has an express legislative power to enact privileges which may exceed those “inherent” in the creation of the Senate and the House of Commons, although such legislated privilege must not “exceed” those “enjoyed and exercised” by the U.K. House of Commons and its Members at the date of enactment. He then cited section 18 of the Constitution Act, 1867 and, in the next paragraph wrote, “the immunity from external review flowing from the doctrine of privilege is conferred by the nature of the function (the Westminster model of parliamentary democracy) not the source of the legal rule, (i.e., inherent privilege versus legislated privilege)” concluding “Parliamentary privilege enjoys the same constitutional weight and status as the Charter itself.” [Emphasis mine]
[61] Fourth, he then referred to section 4 of the PCA stating at paragraph 35, “Parliament has conferred on the Senate and the House of Commons the full extent of privileges permitted under the Constitution. In doing so, however, our Parliament neither enumerated nor described the categories or scope of those privileges except by general incorporation by reference of whatever privileges were “held, enjoyed and exercised by the U.K. House of Commons.” [Emphasis mine]
[62] Fifth, he wrote at paragraph 36, “the main body of the privileges of our Parliament are therefore “legislated privileges” and according to section 4 of the PCA must be ascertained by reference to the law and customs of the U.K. House of Commons which are themselves composed of both legislated (including the Bill of Rights of 1689) and inherent privileges.”
[63] Sixth, at paragraph 29.10, he identified the existence of categories or spheres of activity to which Parliamentary privilege relates as including freedom of speech, control by the Houses of Parliament over debates or proceedings in Parliament, disciplinary authority over members and non-members who interfere with the discharge of parliamentary duties stating, “such general categories have historically been considered to be justified by the exigencies of Parliamentary work.” [Emphasis mine]
[64] S