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.