Privilege and the court -

Privilege and the court


Our Andrew Coyne has written important and necessary things about the Speaker’s ruling. (I very nearly begged for someone to step forward and identify the same alleged equivocation in Mr. Milliken’s ruling and have yet to receive any such explanation. Now that a permanent member of the At Issue panel has concurred, in keeping with Article 6, Clause B, Paragraph 32 of the Conventional Wisdom Act, we shall declare the matter closed.)

Two Supreme Court rulings have come up in the ensuing discussion this weekend, both worth reviewing.

The first, previously cited here, is New Brunswick Broadcasting Co. v. Nova Scotia, which reads, in part, as follows.

From an historical perspective, Canadian legislative bodies had, from their inception, those privileges which were necessary for the maintenance of order and discipline during the performance of their duties.  These privileges are part of the fundamental law of our land, and hence are constitutional.  While courts may determine if the privilege claimed is necessary to the capacity of the legislature to function, they have no power to review the rightness or wrongness of a particular decision made pursuant to the privilege.

The other is Canada v. Vaid, which reads, in part, as follows.

Legislative bodies created by the Constitution Act, 1867 do not constitute enclaves shielded from the ordinary law of the land.  The framers of the Constitution, and Canadian Parliamentarians in passing the Parliament of Canada Act, thought it right to use the House of Commons at Westminster as the benchmark for parliamentary privilege in Canada.  Accordingly, to determine whether a privilege exists for the benefit of the Senate or House of Commons, or their members, a court must decide whether the category and scope of the claimed privilege have been authoritatively established in relation to our own Parliament or to the House of Commons at Westminster.  If so, the claim to privilege ought to be accepted by the court.  However, if the existence and scope of a privilege have not been authoritatively established, the court will be required to test the claim against the doctrine of necessity — the foundation of all parliamentary privilege.  In such a case, in order to sustain a claim of 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 of autonomy required to enable the assembly and its members to do their legislative work with dignity and efficiency.  Once a claim to privilege is made out, the court will not enquire into the merits of its exercise in any particular instance.


Privilege and the court

  1. I very nearly begged for someone to step forward and identify the same alleged equivocation in Mr. Milliken's ruling and have yet to receive any such explanation.

    Well then, you must have missed my reply to your beg, so let me try again, perhaps more clearly this time.

    If the Speaker truly believes that Parliament is supreme, why did he impose his own prerogative of witholding application of the correctly-interpreted rules for two weeks? If it's indeed a matter of privilege, doesn't that shoot waaaaaay up the priority list of business on the order of the day?

    I guess he did it because he didn't like the result of the rules application any more than did anybody else. So he set aside the rules for a couple more weeks of work-around through negotiation.

    If that doesn't tell people they should negotiate on matters of protecting security, I don't know what does. But Speaker Milliken, the more I think about it, appropriated a little heretofore unrecognized Speaker's power to nuance clear parliamentary supremacy last week.

  2. Worth noting that Crown privilege/prerogative used to be considered beyond judicial review, too. Not anymore.

    Probably won't happen with parliamentary privilege, but you never know. Legal community are increasingly averse to the idea that there is anything beyond judicial review.

  3. I love the Supreme Court

  4. Suggesting everyone take a couple weeks to sort out the particulars does not apply a limit, caveat, or loophole to parliamentary privilege. If all sides don't come to an agreement, we return to Parliament and we shall move forward according to the will of the majority.

    "As has been noted earlier, the procedural authorities are categorical in repeatedly asserting the powers of the House in ordering the production of documents. No exceptions are made for any category of Government documents, even those related to national security."

  5. Then I need to re-learn rules of procedure. If a point of privilege is acknowledged as valid, that is supposed (I was once taught) to shove everything else off the order papers until the matter is resolved.

    "No exceptions are made…" Fine. Where does it say delays are tolerated? I confess I do not know every centimetre of Marleau & Montpetit, but I would be very surprised to learn the Speaker actually possesses any don't-make-me-do-this powers once the parliamentary rules are correctly interpreted.

  6. Instead of reading the Speaker's mind, I went and read M&M:

    Should a point of order be raised during consideration of a question of privilege, the point of order will be given precedence until the Chair has determined whether or not a rule has been breached and the matter settled.

    Seems to me the Chair has determined there was a breach. Has the matter been settled? No, we've got two weeks for that. So much for the precedence part.

    And I say that as a huge fan of the don't-make-me-do-this decision. But you still have to convince me that a Millikenian notch hasn't been carved out of Parliamentary supremacy, here.

  7. "not any more"…says who?

  8. Presumably it is within the power of any MP in the place to disregard the Speaker's stated preference and "move the appropriate motion" immediately. I think if Derek Lee or any other opposition member had made any strenuous objection to the delay then Milliken would have been forced to deal with the matter immediately.

    IOW, I don't think Milliken imposed his will on the House so much as suggested a temporary stay in the proceedings which was seen as the wisest course by all participants.

  9. For Crown prerogative? R. v Operation Dismantle.

  10. Trust me, Aaron, it's not a complaint. I think asking MPs to behave like responsible adults (before the rules get applied as they must) is a phenomenally sound idea.

    But see below, where I have pulled a relevant passage from M&M. I just don't see the Speaker's request as within the "parliamentary supremacy" rules as they currently exist. Which, I thought, was what you were begging to get discussed.

  11. If Lee did not withdraw his motion, my (admittedly limited) reading of the rules tells me none of what you discuss matters, from a strictly rules-based perspective.

    It was a great suggestion and everybody may well agree it was the wisest course. I just haven't found where the Speaker has the authority to make the suggestion.

    Quoted text of rules or precedence on this point would be greatly appreciated.

  12. I just saw a survey of supper-time subjects of conversation in 10,000 Canadian Homes. Now this may come to quite a shock to some here but not one dinner-table conversation involved anything to do with Parliamentary Games.

    I woul;d suggest that the one Party that appears to driving this subject down the throat of an increasingly impatient electorate is in for a serious a$$- kickin in the next election.

  13. Would that be the Conservatives you are referring to? They're the party that insists on foot-dragging, stalling, stonewalling and otherwise defying the will of Parliament. The other parties in the House just want the Conservatives to produce the documents already.

    Canadians want our politicians to govern the freaking country, not indulge in endless games of strategic chess.

  14. Getting pretty nervous down there at Conservative war room, eh? In this job market, if you guys lose, man oh man, you guys are going to be in some deep Jaffer-doo.

  15. it should also be noted that the proceedings (i.e. Chamber and Committees) and what happens therein ARE accepted categories of privilege. No need to prove. No examination of their exercise by the courts.

    What is the issue here is the nature of a minority…the "tyranny of the majority" as they used to say. The governing party does not dominate the House. As such, they are forced to compromise. Ignoring parliamentary privilege–or suggesting that it (which is constitutional in nature) must somehow be "balanced" with the government's statutory obligations (outside the House, where the House members hold the executive to account) is preposterous. Even the Charter does not apply when a matter is privileged (that is, say it with me, the proceedings of the House)…so says NB Broadcasting, as confirmed by Vaid.

    Parliament, as a whole, passes laws for the executive to carry out. The House, and its internal proceedings, are another matter entirely. Vaid makes this clear. As does history.

    The governing party should take care to not paint themselves into a corner to bind themselves when they are opposition and seek to hold subsequent governments to account.

  16. I have often thought that many of the plussers here are unemployed Liberal staffers and they want back in power so bad they can taste it. After all they believe the Canadian taxpayer owes the Liberal staffer a good salary for their loyal kiss-ups.

  17. The Jaffer doo would probably amount to an invitation to Mr. Harper to resign the CPC leadership and possibly a split of the party into former Progressive Conservatives and Reform / Alliance types again. The Progressive Conservative brand still extists I believe – thanks to Sinclair Stevens. I have a sense that there are a number of members of the CPC who must think by now that Harper is a little dictator. The leakage didn't end with Belinda and Scott Brison…

  18. I can't be doin the Google right now (It's Sunday after all)… but I will just give an opinion based on the wording that is typical…

    When MP's raise these points of privilege they always use the same wording. "… if you find that there has been a breach of privilege, I'm prepared to make the appropriate motion" – In this case, that would be the motion to declare certain government Members (or the government as a whole) in contempt of Parliament. Milliken ruled on the point of privilege but no-one yet has "moved the appropriate motion".

    It's an unusual circumstance but I don't see how Milliken's suggested delay is off-side in any way. As Milliken often says, he his the servant of the will of the House. I think he read the will of the House pretty accurately and he seems to be operating within the accepted rules, so far. If I was googling, I'd look for previous examples of deemed privilige breached, and the typical time frame between the finding and the remedy.

    I reserve the right to feel differently in a week or so if any other balk is forthcoming.

  19. Many of those same people may not know that Magna Carta is not a fruity cheap Italian wine either…what was your point again?

  20. …continued.

    The five months don't matter. Making fun of a retired Supreme Court justice's name doesn't help. Precisely what he was supposed to do was released as his terms of reference, and the Speaker quite perceptively summarized the contributions and limitations of that process, anyways, and none of that matters. Late March is what matters. The ruling that there is a legitimate point of privilege raised matters.

    Parliament is supreme, but not now. Later, it will be supreme, if it has to be. The more I think about it, the more I like my initial interpretation of the Speaker asking everyone to please put the pin back in the grenade. And the more I like that he so requested. I just don't see where he got that authority.

  21. I am glad the Speaker gave them the two weeks. But he also clearly stated that a government's violation of the House order did not deserve two more weeks, because (in this instance) national security concerns were raised during the debate and the House, in its — um — wisdom, approved the order anyways, and Parliament is supreme.

    And you're right, he has not declared there was a breach. He has declared there was a prima facie case in favour of raising the point of privilege, or whatever the specific words are. Which, according to what I have read, is supposed to take immediate precedence over everything else.


  22. if you find that there has been a breach of privilege, I'm prepared to make the appropriate motion…

    OK, that changes things a bit, I suppose. Perhaps I am mistaken. I thought names were named in a motion of contempt during the point of privilege (offered up by Lee, supported by one or more others). Was that not the case?

  23. You're welcome to make the argument that waiting two weeks to hear a motion on a question of privilege constitutes a limit or a condition on parliamentary privilege that amounts to bestowing upon the government the right to withhold documents for reasons of national security. If the government does indeed appeal to the Supreme Court, I'm sure the Justice Dept (and Margaret Wente and the National Post editorial board) would be happy to hear from you on this.

    In the meantime, I'll stick with what the ruling actually says in regards to the question of privilege asserted.

  24. Often parties are given a short period to work out details between themselves as per stated orders. Like when pleadings are struck but a party is given time to write new ones in line with the court order.

    And in this case, the order is parliament can have any documents it wants. There's just a short break while they work out the details, these details won't allow the government to with-hold anything. And if the government won't agree, parliament gets the docs on its own terms.

  25. Hopefully the five months won't matter in the end. But they were still five months in which the prime minister of our country acted like a tyrant with no concern for the law.

    The documents should have been provided to the relevant committee within days of being asked. Security concerns should have been dealth with by making the meetings in camera and reminding everyone that sensitive material was involved. It should not have taken more than an hour or two.

    It is time.

    It is past time.

  26. Well, then, let me throw some more M&M at you:

    This is the meaty text I was looking for earlier. Have a look (anyone who hasn't died of boredom over my verbiage so far) just above and for a good stretch below the "Debate on a Privilege Motion" heading about a third of the way down the page.

    Prima facie case confirmed? Immediate motion by the member making the case, call for a seconder, debate according to rules, then vote. Priority over all Orders of the Day but not over Routine Proceedings (like QP). Certain motions (such as the privilege-killing motion to proceed to the Orders of the Day) are nonetheless in order.

    Hmm. Seems like a mischievous MP would be in his or her rights to rise on a Point of Order at any time.

  27. Well, then, let me throw some more M&M at you:

    This is the meaty text I was looking for earlier. Have a look (anyone who hasn't died of boredom over my verbiage so far) just above and for a good stretch below the "Debate on a Privilege Motion" heading about a third of the way down the page.

    Prima facie case confirmed? Immediate motion by the member making the case, call for a seconder, debate according to rules, then vote. Priority over all Orders of the Day but not over Routine Proceedings (like QP). Certain motions (such as the privilege-killing motion to proceed to the Orders of the Day) are nonetheless in order.

    Hmm. Seems like a mischievous MP would be in his or her rights to rise on a Point of Order at any time.

  28. Maybe Iggy could do a lecture series on the Magna Carta……..yeah, that should work.

  29. Touche'…but that doesn't change the fact that Magna Carta matters, whether the general public are interested or not. The last prorogation is a case in point. The citizenary are well aware that much of what is publically on view in our Parliament is frankly theatre, perhaps at times a joke. But that doesn't mean they'll let the PM use the place as his personal plaything, to be closed down because he thinks the issues aren't important enough to be discussed around the supper table…but i know you thought it was all a media driven put up job…people don't care about trivial little things like Parliament, and Magna Carta…that's is until they do.

  30. "Allowed to" but not necessarily compelled to… I would guess.

    If Milliken is indeed setting a precedent here (and he might well be) then I'd come back to my previous point, I think he is doing it with the tacit support of all concerned parties in the House.

  31. Do you have a point, or are you just bored out of your mind? Seriously :-)

    Relax. This thing is never going to come to a vote. Harper will never cave, and he'll never allow his government to be declared in contempt in the House.

    Either the Liberals will cave, or we'll be in election mode by next weekend.

  32. Buddy, I happen to be interested in the democratic running of my country, so much that I am devoting time to a conversation about it with other Canadians who seem similarly interested. And digging through arcane (to some) parliamentary rules and procedures to obtain a clearer understanding. If I was bored out of my mind, I could think of several hundred other things to be doing right now. But thank you for your concern.

  33. Madey, You have made (and remade) an important point. Canadian democratic traditions are very vulnerable to abuse.

  34. I was wrestling with this the other day – what happens in a majority situation? In fact other than common decency, what is to stop a majority PM from trampling PP under foot?
    The only thing that occurs is the obvious…he/she would have the confidence of the house-as nutty as that seems, i'm not aware of any other checks on a PM's majority power, other than election day.

  35. kcm, I figure the "tyrannical" PM with a majority doesn't have to trample Parliamentary procedure. The opposition would never get a chance to wield it against the government in the first place. No way does an opposition-submitted order to produce documents ever get passed, for example.

    The PM (or the Cabinet) would have to attempt something so egregious as to disgust enough of his or her own MPs to abandon ship and vote against their own party, for the good of the country. I hold out some hope that if Harper (or any PM) ever tried to come a single step close to mimicking Mugabe, for example, the assembled MPs would know what to do. They swear an oath to the Crown, who reigns with the consent of its subjects; they do not swear an oath to the party leader.

    • No.. it's even worse.. they sign a contract to the party leader.

  36. In a majority parliament, there are really no limits on the PM's power, except the fear of losing the next election and, like in the cases of Jean Chretien and Maggie Thatcher, a bloodless coup from within.

  37. Your complaint would seem to be with the Speaker's understanding and enforcement of House procedure. I suppose you're free to take issue with this two-week notice on those grounds, but, again, I fail to see how that equates to a limit on parliamentary privilege.

    • I thought the point was – if Parliament has the power to see these documents, there is no legitimacy in the Speaker imposing two weeks to work out a mechanism. If the rulng were clear, the Government would begin providing the documents immediately, and Parliament could hold them in contempt if the way they provide them were unacceptable. There would still be negotiations, but under a clear ruling on the point of privilege.

      I'd also point out that Parliament's powers to coerce the Government to comply with the order may be limited. In the Australian cases, the Supreme Court felt that expelling a member from the precincts of Parliament was unduly harsh (which kind of makes me wonder what Coyne is on about in his post below – that seems like a clear case of the courts ruling on Parliament's internal workings).

  38. You know, I would settle right now ( and I`ll concede that Harper can be too secretive and manipulative ) for just one Liberal supporter to concede that there is some hypocrisy in the Party and maybe they are using Parliament as their plaything sometimes.

    Oh, and I really love the Magna Carta, think about it every day. Seriously, if I thought this little impasse we`re having now was a real threat to Liberty, I`d even line up with you.

  39. "However, if the existence and scope of a privilege have not been authoritatively established, the court will be required to test the claim against the doctrine of necessity — the foundation of all parliamentary privilege."

    Wow, how could those knuckleheads get it so completely wrong ? Good thing they don't get a say in the matter.

  40. If the body agrees unanimously, the rules of order can be superseded by the will of the body. This is basic to any type of parliamentary or governance procedure. This is what has happened here, as pointed out, any member could bring forward a point of order to drive this home immediately. That none do means that the body is unanimous in its agreement with the speaker's ruling and current course of action.

  41. I don't really understand you. Isee plenty of evidence ,on these boards anyway, that libs realise the party is sometimes manipulative and hypocritical – were all human. But i will concede that the liberal party does hypocritcal real well…a good deal more subtle about it than the tories.
    You may not think about MC, but you and i live it everday…i only picked that one out of a hat anyway…i could have easily said the presumption of innocence – it's astonishing how many people would be willing to throw that one under the bus, when it suits them. IMHO we lose our freedoms incrementally, slowly, over time. It was important that Parliamentary privilege be upheld in this case, so no future PM will be tempted to hold Pariament in as little regard as SH appears to do.

  42. The Speaker gave them two weeks simply to reconcile the absolute privilege of the House and the national security concerns raised by the government. Think of this as a technical timeout for the two sides to resolve their differences off the floor of the House while not interfering with the normal business of the House.

    The Speaker has not formally declared that there has been a breach. He has essentially suspended his ruling for a two-week cooling-off period.

    To be fair, this thing has been going on for five months. The Liberals really didn't move the privilege motion until late March, and the government also threw a spanner in the works with Judge Iac-broccoli, who is apparently doing something at $600 per hour although nobody seems to know precisely what that is.

    You can hardly blame the Speaker for adding another measly two weeks to this standoff.

  43. Accordingly, on analyzing the evidence before it and the precedents, the Chair cannot but conclude that the government's failure to comply with the order of December 10, 2009, constitutes prima facie a question of privilege.
    I will allow House leaders, ministers and party critics time to suggest some way of resolving the impasse, for it seems to me we would fail the institution if no resolution can be found. However, if in two weeks' time, the matter is still not resolved, the Chair will return to make a statement on the motion that will be allowed in the circumstances.
    In the meantime, of course the Chair is disposed to assist the House in any way it can, and I am open to suggestions on any particular role that I as your Speaker can play.

    He allowed a bunch of folks time to "put the pin back in the grenade." He did not allow the Member raising the matter anything at all. "Don't make me do this" seems to be the prevailing theme.

  44. It was a topic of dinner conservation in at least three homes I know of this week. Anecdotal evidence on the question of how an election would go if Harper went to the polls asking, "Who do you want running this show, me or the other 307?", the other 307 would win in a landslide.

  45. From Hansard:

    I will close in saying that I am, of course, prepared to move an appropriate motion if you find a prima facie case here.

    Mr. Speaker, I firmly believe that there is a clear case for the finding of a prima facie breach of privilege, and if you agree, I am prepared to move a motion. I want to indicate that this motion has already been discussed with other members of the opposition parties. The Bloc Québécois has indicated that it supports our motion in this regard… The motion would read as follows:"[lengthy text of motion]"

    If the Speaker decides that there is a prima facie case for my question of privilege, I am prepared to move the appropriate motion.

  46. That is an interesting point indeed. In this specific instance of possible breaches of international obligations, who indeed would be able to make the proper investigations that the committee is studying?

    I mean, if this was Canadian criminal code stuff being investigated, I suppose the RCMP could be called in (although I supposed stuff is often hid from them as well, in a practical sense, and they just never start investigations).

    It is unsettling indeed to think that in a majority government, important investigations could simply be stymied by majority vote.

  47. I don't think the two weeks is necessary but it's both minor, defensible and legitimate, unlike certain actions of the Harper conservatives.

  48. It is time. It is past time. Then I guess YOU should be the one complaining about the 2 weeks.

    As to the five months not mattering, that was in response to the timing of the whole privilege thing, not your concern that we are ruled by a tyrant. Five months of tyranny would be awful, indeed. Which would no doubt be an interesting word choice to a Harare grocer or to a farmer outside Havana.

    And here's a supplemental question. If a prime minister leads a majority government, such that the House would never be able to pass a similar order against the government's own agenda, does that make such a prime minister less of a tyrant? Or more?

  49. Agreed on minor and defensible. I would even add wise, myself. What I have established upon a fair bit of reading today is that it was not legitimate.

    And I am troubled by how what you call tyranny should be allowed to stand for two weeks after "it's past time" and your desire for action "YESTERDAY" on another thread. C'mon Mike, either freedom and democracy is under attack or it isn't! I guess by your latest, you have concluded it isn't.

  50. Politics a dinner time conversation? Hardly. Most would be asking the kids how their day was a school, work day, rushing to get out to a soccer or hockey game and how ill Aunt Matilda is.

  51. I find your being troubled self serving and risible, as well as your claim to have established anything of the sort.

  52. So, lunch today is off, then? My loss.

  53. I think you have to assume that, as lgarvin notes above, he has "read the mood of the House" and decided to go with this avenue. I read the link you provided and agree with you that by the book he had a relatively simple job to do, as it is understood. That he chose to go in this direction would seem to suggest that he did his homework, consulted carefully and widely and felt it was the best way to keep the House from going nuclear.

    Time will tell if he had the right reading, but the fact that Lee and the Bloc have been relatively silent on the issue would suggest he hasn't alientated them.