Lavigne v. Attorney General of Ontario; Senate of Canada, Third Party

  • Document:
  • Date: 2018

Lavigne v. Attorney General of Ontario; Senate of Canada, Third Party*

[Indexed as: Lavigne v. Ontario (Attorney General)]

91 O.R. (3d) 728

Ontario Superior Court of Justice,

Lalonde J.

July 24, 2008

 

* Translation supplied by the Centre de traduction et de documentation juridiques (CTDJ)  l’Universit d’Ottawa.

Judgment originally released in French. Vous trouverez la version ralise franaise   la p. 750, post.

 

Charter of Rights and Freedoms — Fundamental justice — Full answer and defence — Disclosure — Transcripts of testimony before Senate committee subject to parliamentary privilege — Parliamentary privilege having same status and constitutional weight as Charter — Charter not removing parliamentary privilege.

Evidence — Privilege — Parliamentary privilege — Transcripts of testimony before Senate committee subject to parliamentary privilege. [page729]

The applicant, a senator in the Senate of Canada, was being investigated by a special subcommittee on the use of Senate resources. He requested a copy of the transcripts of witnesses heard by the subcommittee in private. The Senate refused to disclose the transcripts, invoking parliamentary privilege. The applicant brought an application for an order compelling the Senate to disclose the transcripts.

 

Held, the application should be dismissed.

 

R. v. Stinchcombe did not apply in this case, as the Crown was not in possession of the Senate transcripts. Transcripts of testimony before a Senate committee are subject to parliamentary privilege. The privilege at issue was intended to encourage witnesses to speak openly, to preserve the Senate’s investigative capacity and to avoid contradictory results between the investigative activities of the Senate and those of the courts. Those objectives are the necessary foundation for the proper functioning of parliamentary committees, and in particular their investigative function, which is a protected sphere of activity. The applicant could not obtain the transcripts under s. 7 of the Canadian Charter of Rights and Freedoms. Parliamentary privilege has the same status and constitutional weight as the Charter itself, and one part of the Constitution cannot be abrogated by another.

 

Cases referred to

 

Canada (House of Commons) v. Vaid, [2005] 1 S.C.R. 667, [2005]

S.C.J. No. 28, 2005 SCC 30, 252 D.L.R. (4th) 529, 333 N.R.

314, J.E. 2005-976, 28 Admin. L.R. (4th) 1, 41 C.C.E.L. (3d)

1, [2005] CLLC 230-016, 135 C.R.R. (2d) 189, 139 A.C.W.S.

(3d) 529; New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319, [1993] S.C.J. No. 2, 100 D.L.R. (4th) 212, 146 N.R. 161,

J.E. 93-231, 118 N.S.R. (2d) 181, 13 C.R.R. (2d) 1, 37

A.C.W.S. (3d) 1194, apld

Canada (Deputy Commissioner, Royal Canadian Mounted Police) v. Canada (Commissioner, Royal Canadian Mounted Police), [2007] F.C.J. No. 752, 2007 FC 564, [2008] 1 F.C.R. 752, 313 F.T.R.

183, 65 Admin. L.R. (4th) 111, 158 A.C.W.S. (3d) 656;

Gagliano v. Canada (Attorney General), [2005] F.C.J. No. 683, 2005 FC 576, [2005] 3 F.C.R. 555, 265 F.T.R. 218, 253 D.L.R.

(4th) 701, 30 Admin. L.R. (4th) 171, 139 A.C.W.S. (3d) 952

(F.C.); R. v. Stinchcombe, [1991] 3 S.C.R. 326, [1991]

S.C.J. No. 83, 130 N.R. 277, [1992] 1 W.W.R. 97, 83 Alta.

L.R. (2d) 193, 120 A.R. 161, 68 C.C.C. (3d) 1, 8 C.R. (4th)

277, 18 C.R.R. (2d) 210, consd

 

Other cases referred to

 

Buchanan v. Jennings, [2002] 3 N.Z.L.R. 145 (N.Z.C.A.); Goffin

v. Donnelly (1881), 6 Q.B.D. 307 (Q.B.); Kielley v. Carson (1842), 13 E.R. 225, 4 Moore P.C.C. 63 (P.C.); Prebble v. Television New Zealand Ltd., [1995] 1 A.C. 321, [1994] 3 All E.R. 407, [1994] 3 W.L.R. 970 (P.C.); R. v. B. (K.G.), [1993] 1 S.C.R. 740, [1993] S.C.J. No. 22, 148 N.R. 241, J.E.

93-466, 61 O.A.C. 1, 79 C.C.C. (3d) 257, 19 C.R. (4th) 1, 18

W.C.B. (2d) 588; R. v. Murphy (1986), 64 A.L.R. 498

(N.S.W.S.C.); R. v. O’Connor, [1995] 4 S.C.R. 411, [1995]

S.C.J. No. 98, 130 D.L.R. (4th) 235, 191 N.R. 1, [1996] 2

W.W.R. 153, J.E. 96-64, 68 B.C.A.C. 1, 103 C.C.C. (3d) 1, 44

C.R. (4th) 1, 33 C.R.R. (2d) 1; R. v. Wainscot, [1899] 1

W.A.L.R. 77 (W. Aust. S.C.); Stockdale v. Hansard (1839), 9 Ad. & Ell. 96, 112 E.R. 1112 (Q.B.)

Statutes referred to

An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown (Bill of Rights, 1689),

1 Will. & Mar., sess. 2, c. 2, art. 9 Canadian Charter of Rights and Freedoms, s. 7

Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, s. 18 [page730]

Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s. 13

Parliament of Canada Act, R.S.C. 1985, c. P-1, s. 4

 

APPLICATION for disclosure of transcripts of testimony before a Senate committee.

 

Dominique St-Laurent, for applicant.

David Elhadad, for Attorney General of Canada.

Maxime Faille and Guy Rgimbald, for Senate of Canada.

 

 

[1]  LALONDE J.: — This is an application for an order for disclosure of the transcripts of testimony before the Standing Committee on Internal Economy, Budgets and Administration

(hereinafter the “Special Subcommittee”) on the use of Senate resources.

 

[2]  The applicant, a senator in the Senate of Canada, was being investigated by the Special Subcommittee on his use of Senate resources for personal purposes.

 

[3]  The Subcommittee heard witnesses in private for four days, April 6, 7 and 8, 2006, and May 1, 2006.

 

[4]  On February 29, 2008, the applicant’s counsel sent a letter to the Senate requesting a copy of the transcripts of witnesses heard by the Special Subcommittee, on the basis that it was likely that some or most of these witnesses would be called to testify at trial.

 

[5]  In a letter sent on May 21, 2008, the Senate of Canada refused to disclose the transcripts and asserted its parliamentary privilege.

Issues

 

[6]  This application raises the following issues: Are the transcripts subject to Senate of Canada privilege? Does the court have jurisdiction to order the Senate of Canada to disclose the transcripts of witnesses heard by the Special Subcommittee?

I thank the parties’ legal counsel for allowing me to use their submissions almost verbatim.

Submissions of Senator Raymond Lavigne

 

[7]  Senator Raymond Lavigne is of the opinion that the Senate of Canada does not have a parliamentary privilege to withold testimony given before the Subcommittee. Far from being absolute, parliamentary privilege is, as Justice Binnie pointed out [at para. 29] in Canada (House of Commons) v. Vaid, [2005] 1 S.C.R. 667, [2005] S.C.J. No. 28, “the necessary immunity that the law provides for Members of Parliament . . . in order for these legislators [page731] to do their legislative work”. Section 18 of the Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3 provided for the application of parliamentary privileges in Canada insofar as they did not exceed those that applied to the British Parliament. The case of Stockdale v. Hansard (1839), 9 Ad. & Ell. 96, 112 E.R. 1112 (Q.B.) set out an

important test: the necessity of the privilege. It is therefore appropriate to analyze the privilege claimed in light of the necessity test. The necessity of a privilege is a sine qua non of its existence (New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319, [1993] S.C.J. No. 2).

 

[8]  Furthermore, an analysis of the current social context is important to determine the necessity of a privilege, as Justice McLachlin stated in New Brunswick Broadcasting. We are not attempting here to review the exercise of a parliamentary privilege, which is prohibited, but rather to determine its scope, in accordance with previous case law.

 

[9]  The whole issue of the scope of parliamentary privilege relating to testimony before a parliamentary committee arises from the interpretation of art. 9 of the Bill of Rights, 1689. In Canada, since art. 9 cannot be applied according to New Brunswick Broadcasting, the underlying principles must instead be interpreted. In fact, as Justice Tremblay-Lamer stated in Gagliano v. Canada (Attorney General), [2005] F.C.J. No. 683, [2005] 3 F.C.R. 555 (F.C.), “it does not follow inexorably from art. 9 that cross-examination of a witness in a proceeding

. . . where he faces no civil or legal consequences is barred”.

 

[10]  As was the case with the Gomery Commission in Gagliano, the witnesses to be heard during this trial and who had been heard by the Subcommittee will not face any legal consequences as a result of their cross-examination due to the protection provided by s. 13 of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11. In the case of Goffin v. Donnelly (1881), 6 Q.B.D. 307 (Q.B.), the defendant in a defamation action, who had testified unfavourably against the plaintiff before the Select Committee, faced legal consequences of being held civilly liable. The defendant was not found liable because of parliamentary privilege. Similarly, in the Australian case of R. v. Wainscot, [1899] 1 W.A.L.R. 77 (W. Aust. S.C.), cited in Gagliano, the Supreme Court of Western Australia concluded that the prosecutor in a bribery case could not use the accused’s testimony before a joint committee of Parliament. Justice Tremblay-Lamer’s conclusion that [at para. 58] “the harm or problem sought to be protected against by Article 9 of the Bill of Rights, 1688 . . . was to prevent members of Parliament (or by extension, witnesses) from suffering [page732] legal consequences in a court of law

. . .” is clear. In the present case, the applicant submits that the testimony received by the Subcommittee is not subject to parliamentary privilege because it does not have any legal consequences.

 

[11] R. v. Murphy (1986), 64 A.L.R. 498 (N.S.W.S.C.), a decision of Justice Hunt of the Supreme Court of New South Wales, held that it was appropriate to ask a witness to confirm testimony given before a Senate committee (including the documents presented to the committee, which contained statements made by this witness). If the witness refuses or does not clearly admit having given this testimony, it is then possible to prove that he did so without violating parliamentary privilege. It is also permissible to confront the witness during cross-examination and to ask the jury to draw conclusions regarding the validity of testimony given at trial or before the committee. In summary, the use of testimony given before a committee is possible if the witness is not facing any legal consequences. The dissenting decision of Justice Tipping in Buchanan v. Jennings, [2002] 3 N.Z.L.R. 145 (N.Z.C.A.) is also to the same effect.

 

[12]  In the present case, the witnesses who will be questioned at the hearing do not face any such consequence. Rather, the use of this testimony enables the accused to mount a full and complete defence by allowing him to properly cross- examine the witnesses at trial. As was the case in the New Brunswick Broadcasting and Gagliano decisions, the necessity test in the present Canadian context must be examined.

 

[13]  Parliamentary privilege ends at the protection of witnesses and members of Parliament testifying before parliamentary committees when there is a possibility of legal sanctions. The privilege prevents the institution of legal

proceedings against a person testifying before a parliamentary committee. Gagliano makes it clear that this protection from legal proceedings enables witnesses to testify openly and parliamentary committees to function.

 

[14]  This is not the case regarding the use of testimony to enable an accused person to make a full and complete defence. The main concern about testimony is to ensure the complete openness of witnesses before committees. Witnesses will not be hesitant to speak merely because they can be questioned on what they have stated in the past. However, if these witnesses can be subject to legal proceedings for what they have said, which, for example, may be defamatory, there is indeed a problem regarding the effectiveness of committees. It is possible to make a comparison with the increasingly ready admissibility of prior inconsistent statements in criminal law. In fact, these statements satisfy [page733] the criterion of reliability because it is possible to cross-examine the witnesses at trial (see R. v. B. (K.G.), [1993] 1 S.C.R. 740, [1993] S.C.J. No. 22). Contrary to what was claimed in Gagliano, the possibility that their statements may be challenged encourages witnesses to be truthful.

 

[15]  The investigative power of a parliamentary committee is the second necessity test addressed in Gagliano. At the outset, the applicant asserts that the privilege of summoning witnesses to appear and to produce documents has nothing to do with the later use of their testimony in a criminal proceeding. The parliamentary privilege precluding criminal or civil proceedings against witnesses based on their earlier statements does not fall within the parliamentary privilege of investigation. It is unnecessary to extend the privilege.

 

[16]  In reply to the arguments submitted in Gagliano, the concern about inconsistent findings arising from different testimony appears to be unfounded. In a democracy where the separation of powers is important, identical decisions must not be sought at all costs. The search for truth by the court is the most important pursuit in the respect of human rights. The integrity of Parliament is not threatened to the extent that such a privilege is necessary.

 

[17]  In summary, parliamentary privilege exists, but after reviewing the necessity test in light of recent judgments, in particular New Brunswick Broadcasting and Vaid, we do not think it is necessary. We note that the person who asserts parliamentary privilege has the burden of proving it. In the present case, in the absence of consequences for the witnesses, Parliament’s power in its search for truth has not been compromised, making it unnecessary for a privilege to be recognized regarding the use of testimony. If the court comes to the conclusion that parliamentary privilege does not apply, it can allow disclosure of the testimony.

Historical Analysis of Parliamentary Privilege

 

[18]  Counsel for the Senate of Canada referred to the Gagliano decision, at paras. 45 and 49, to define the privileges and immunities of the Senate as follows:

 

Parliamentary privilege in Canada originates in both the common law and statutes. 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 privilge parlementaire au Canada, 2nd ed. (Ottawa: House of Commons and McGill-Queen’s University Press, 1997), at page 16).

. . . . . [page734] 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.

 

[19]  It was from this perspective that Justice Binnie, in para. 20 of the Vaid decision, made the following remarks on behalf of the court regarding the origins of privilege:

It is a wise principle that the courts and Parliament strive to respect each other’s role in the conduct of public affairs. Parliament, for its part, refrains from commenting on matters before the courts under the sub judice rule. The courts, for their part, are careful not to interfere with the workings of Parliament. None of the parties to this proceeding questions the pre-eminent importance of the House of Commons as “the grand inquest of the nation.” 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. . . .

 

[20]  Section 18 of the Constitution Act, 1867 gives the Parliament of Canada the right to legislate to determine the scope of the privileges, immunities and powers of the Senate, the House of Commons and their respective members. This legislative power is absolute, with one specific exception: the Parliament of Canada cannot, under s. 18, grant privileges, immunities or powers exceeding those of the Commons House of Parliament of the United Kingdom in 1867. However, these privileges must be able to evolve and to “meet changing circumstances” (Vaid decision, para. 39). In addition, in order to determine the extent of the powers, rights, immunities and privileges of the Senate and House of Commons of Canada, it is first necessary to define those enjoyed by the British House of Commons in 1867 (para. 37).

 

[21]  The Parliament of Canada has exercised the power conferred by s. 18 of the Constitution Act, 1867, specifically by the adoption of s. 4 and following of the Parliament of Canada Act, R.S.C. 1985, c. P-1.

 

[22]  To sum up the origins of parliamentary privilege, in the Vaid decision, the Supreme Court of Canada laid out a series of [page735] propositions that are now accepted both by the

courts and parliamentary experts, which define the “inherent” principles or those recognized by the courts [at para. 29]:

1.  Legislative bodies created by the Constitution Act, 1867 do not constitute enclaves shielded from the ordinary law of the land. “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” (New Brunswick Broadcasting, at pp. 370-71). Privilege “does not embrace and protect activities of individuals, whether members or non-members, simply because they take place within the precincts of Parliament” (U.K., Joint Committee on Parliamentary Privilege, vol. 1, Report and Proceedings of the Committee (1999) (“British Joint Committee Report”), at para. 242 (emphasis in original)).

2.  Parliamentary privilege in the Canadian context is the sum of the privileges, immunities and powers enjoyed by the Senate, the House of Commons and provincial legislative assemblies, and by each member individually, without which they could not discharge their functions (Beauchesne’s Rules & Forms, at p. 11; Erskine May, at p. 75; New Brunswick Broadcasting, at p. 380).

3.  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 to the Constitution Act, 1867 and in the case of the Canadian Parliament, through s. 18 of the same Act (New Brunswick Broadcasting, at pp. 374-78; Telezone Inc. v. Canada (Attorney General) (2004), 69

O.R. (3d) 161 (C.A.), at p. 165; and Samson Indian Nation and Band v. Canada, [2004] 1 F.C.R. 556, 2003 FC 975).

4.  Parliamentary privilege includes

the necessary immunity that the law provides for Members of Parliament, and for Members of the legislatures of each of the ten provinces . . . in order for these legislators to do their legislative work. [Emphasis added.]

(J.P.J. Maingot, Parliamentary Privilege in Canada (2nd ed. 1997), at p. 12; New Brunswick Broadcasting, at p. 341; see Fielding v. Thomas, [1896] A.C. 600 (P.C.), at pp. 610-11; Kielley v. Carson (1842), 4 Moo. P.C. 63, 13

E.R. 225, at pp. 235-36.) The idea of necessity is thus linked to the autonomy required by legislative assemblies and their members to do their job.

5.  The historical foundation of every privilege of Parliament is necessity. If a sphere of the legislative body’s activity could be left to be dealt with under the ordinary law of the land without interfering with the assembly’s ability to fulfill its constitutional functions, then immunity would be unnecessary and the claimed privilege would not exist (Beauchesne’s Rules & Forms, at p. 11; Maingot, at p. 12; Erskine May, at p. 75; Stockdale v. Hansard, at p. 1169; New Brunswick Broadcasting, at pp. 343 and 382).

6.  When the existence of a category (or sphere of activity) for which inherent privilege is claimed (at least at the provincial level) is put in [page736] issue, the court must not only look at the historical roots of the claim but also to determine whether the category of inherent privilege continues to be necessary to the functioning of the legislative body today. Parliamentary history, while highly relevant, is not conclusive:

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? [Emphasis added.]

 

(New Brunswick Broadcasting, per McLachlin J., at p. 387)

7.  “Necessity” in this context is to be read broadly. The time-honoured test, derived from the law and custom of Parliament at Westminster, is what “the dignity and efficiency of the House” require:

 

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 questions concerning such privilege. All such questions will instead fall to the exclusive jurisdiction of the legislative body. [Emphasis added.]

 

(New Brunswick Broadcasting, at p. 383)

 

(In my view, the references to “dignity” and “efficiency” also relate to the autonomy of Parliament. A legislative assembly without control over its own procedure would, said Lord Ellenborough C.J. almost two centuries ago, “sink into utter contempt and inefficiency” (Burdett v.

Abbot (1811), 14 East 1, 104 E.R. 501, at p. 559).

“Inefficiency” would result from the delay, and uncertainty would inevitably accompany external intervention. Autonomy is therefore not conferred on parliamentarians merely as a sign of respect but because such autonomy from outside is necessary to enable Parliament and its members to get their job done.)

8.  Proof of necessity may rest in part in “shewing that it has been long exercised and acquiesced in” (Stockdale v. Hansard, at p. 1189). The party who seeks to rely on the immunity provided by parliamentary privilege has the onus of establishing its existence.

. . . The onus of shewing that it is so lies upon the defendants; for it is certainly prima facie contrary to the common law. [Ibid., at p. 1189]

The burthen of proof is on those who assert it; and, for the purposes of this cause, the proof must go to the whole of the proposition . . . . [Ibid., at p.

1201]

9.  Proof of necessity is required only to establish the existence and scope of a category of privilege. Once the

category (or sphere of activity) is established, it is for Parliament, not the courts, to determine whether in a particular case the exercise of the privilege is necessary or appropriate. In other words, within categories of privilege, Parliament is the judge of the occasion and manner of its exercise and such exercise is not reviewable by the courts: “Each specific instance of the exercise of a privilege need not be shown to be necessary” (New Brunswick Broadcasting, at p. 343 [emphasis added]). [page737]

 

See also Ontario (Speaker of the Legislative Assembly) v. Ontario (Human Rights Commission) (2001), 54 O.R. (3d)

595 (C.A.); Samson Indian Nation and Band, at para. 13; Martin v. Ontario, [2004] O.J. No. 2247 (QL) (S.C.J.), at para. 13; R. v. Richards; Ex parte Fitzpatrick and Browne (1955), 92 C.L.R. 157 (Austl. H.C.), at p. 162; Egan v. Willis (1998), 158 A.L.R. 527 (H.C.); and Huata v. Prebble, [2004] 3 NZLR 359, [2004] NZCA 147.

10.  “Categories” include freedom of speech (Stopforth v. Goyer (1979), 23 O.R. (2d) 696 (C.A.), at p. 700; Re Clark and Attorney-General of Canada (1977), 17 O.R. (2d)

593 (H.C.); U.K. Bill of Rights of 1689, art. 9; Prebble

v. Television New Zealand Ltd., [1995] 1 A.C. 321 (P.C.); Hamilton v. Al Fayed, [2000] 2 All E.R. 224 (H.L.)); control by the Houses of Parliament over “debates or proceedings in Parliament” (as guaranteed by the Bill of Rights of 1689) including day-to-day procedure in the House, for example the practice of the Ontario legislature to start the day’s sitting with the Lord’s Prayer (Ontario (Speaker of the Legislative Assembly), at para. 23); the power to exclude strangers from proceedings (New Brunswick Broadcasting; Zndel v.

Boudria (1999), 46 O.R. (3d) 410 (C.A.), at para. 16; R.

v. Behrens, [2004] O.J. No. 5135 (QL), 2004 ONCJ 327);

disciplinary authority over members (Harvey; see also Tafler v. British Columbia (Commissioner of Conflict of Interest) (1998), 161 D.L.R. (4th) 511 (B.C.C.A.), at

paras. 15-18; Morin v. Crawford (1999), 29 C.P.C. (4th)

362 (N.W.T.S.C.)); and non-members who interfere with the discharge of parliamentary duties (Payson v. Hubert

(1904), 34 S.C.R. 400, at p. 413; Behrens), including immunity of members from subpoenas during a parliamentary session (Telezone; Ainsworth Lumber Co. v. Canada (Attorney General) (2003), 226 D.L.R. (4th) 93, 2003 BCCA 239; Samson Indian Nation and Band). Such general categories have historically been considered to be justified by the exigencies of parliamentary work.

11.  The role of the courts is to ensure that a claim of privilege does not immunize from the ordinary law the consequences of conduct by Parliament or its officers and employees that exceeds the necessary scope of the category of privilege (Re Ouellet (No. 1) (1976), 67

D.L.R. (3d) 73 (Que. Sup. Ct.), at p. 87). Thus in 1839, almost three decades before Confederation in Canada, the English courts rejected the authority of a formal resolution of the House of Commons that the court believed overstated the true limits of the privilege claimed (Stockdale v. Hansard, at p. 1156, per Denman C.J.; p. 1177, per Littledale J.; p. 1192, per Patteson J.; p. 1194, per Coleridge J.). The jurisdiction of the courts in adjudicating claims of privilege has since been accepted by authorities on British parliamentary practice (see Erskine May, at pp. 185-86). The same division of jurisdiction between the courts and the House was accepted by this Court in Landers v. Woodworth (1878), 2

S.C.R. 158, where Richards C.J., our first Chief Justice, had this to say at p. 196:

[T]he courts will see whether what the House of Commons declares to be its privileges really are so, the mere affirmance by that body that a certain act is a breach of their privileges will not oust the courts from enquiring and deciding whether the privilege claimed really exists. [page738]

This jurisdictional rule has been accepted by authorities on the law and custom of the Canadian Parliament as well (see Maingot, at p. 66) and is not challenged in this appeal.

12.  Courts are apt to look more closely at cases in which claims to privilege have an impact on persons outside the legislative assembly than at those which involve matters entirely internal to the legislature (New Brunswick Broadcasting, at p. 350; Bear v. State of South Australia (1981), 48 S.A.I.R. 604 (Indus. Ct.); Thompson v. McLean (1998), 37 C.C.E.L. (2d) 170 (Ont. Ct. (Gen. Div.)), at

para. 21; Stockdale v. Hansard, at p. 1192).

 

[23]  The first step in determining the existence of a privilege consists of inquiring whether the existence and extent of the alleged privilege have been authoritatively established for our Parliament. Some categories, such as freedom of speech in the House, the power to control debates and Parliament’s disciplinary power over its members have long been recognized as categories of privilege, justified by the exigencies of parliamentary work. In the present case, this application involves two previously recognized inherent principles, namely, the right of speech and the right of the Senate to control its debates, including the right to debate in private and to publish its debates.

 

[24]  According to the reasons of Justice Binnie in the Vaid decision [at para. 33]:

The ruling in New Brunswick Broadcasting, read narrowly, affirmed constitutional status for privileges “inherent” in the creation of a provincial legislature. 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 privileges must not “exceed” those “enjoyed and exercised” by the U.K. House of Commons and its members at the date of the enactment.

 

[25]  The court also pointed out [at para.35], with respect to s. 4 of the Parliament of Canada Act, that if Parliament had indeed exercised its legislative power under s. 18 of the Constitution Act, 1867 by conferring on the Senate and the House of Commons “the full extent of the privileges permitted under the Constitution”, 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”.

 

[26]  Justice Binnie then explained that inherent privileges, including the freedom of speech referred to in art. 9 of the Bill of Rights, have a constitutional protection [at paras. 36-37]:

The main body of the privileges of our Parliament are therefore “legislated privileges”, and according to s. 4 of the Parliament of Canada Act must be ascertained by reference to the law and customs of the U.K. House [page739] of Commons which are themselves composed of both legislated (including the Bill of Rights of 1689) and inherent privileges.

. . . Nevertheless, the framers of the Constitution Act, 1867 thought it right to use Westminster as the benchmark for parliamentary privilege in Canada, and if the existence and scope of a privilege at Westminster is authoritatively established (either by British or Canadian precedent), it ought to be accepted by a Canadian court without the need for further inquiry into its necessity.

 

[27]  This has been explained by British case law. In Stockdale v. Hansard, supra, confirmed in Kielley v. Carson (1842), 13 E.R. 225, 4 Moore P.C.C. 63 (P.C.), Lord Chief Justice Denman stated, at p. 1169 E.R.:

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.

Necessity Test

 

[28]  The Senate of Canada submits that since parliamentary privilege has already been recognized in this case, the question of necessity does not apply. As the issue of privilege has been resolved, “it will be for the House to act and the courts will not inquire into its exercise in a particular case”. In the alternative, even if the necessity test must be applied in this case, the evidence shows that the privilege claimed is justified in this case to enable the Senate to perform its functions.

 

[29]  In this regard, it is interesting to note the applicant’s position in para. 15 of his factum. He proposes the opposite analysis. He submits that privilege exists in this case, but he does not think it is necessary. Therefore, since the person claiming the privilege has the burden of proof, necessity must be proved. With respect, as discussed above, the Supreme Court has come to a completely different conclusion.

Accordingly, it must first be determined whether the privilege exists. If it exists, which the applicant freely admits, the court cannot determine whether the exercise of this privilege is necessary or appropriate in a particular case.

 

[30]  With respect to necessity, it is established that, insofar as there are differences between Canadian parliamentary practices and those of the United Kingdom based on their respective systems, “[these practices] would fall to be assessed under the ‘necessity’ test defined by the exigencies and circumstances of our own Parliament”. Thus, Parliament may establish the existence of parliamentary privilege, even if it was not authoritatively recognized in 1867, provided that the privilege is necessary for Parliament to function properly.

 

[31]  It is clear that the extent and scope of the claimed parliamentary privilege have also changed over the years. Before [page740] Confederation, and except for any express attribution by the Parliament of the United Kingdom, the

common-law principle was well established: privileges that were necessarily incidental to the work of a legislative assembly were considered to exist.

 

[32]  In the Vaid decision, the Supreme Court of Canada held that in order to decide whether or not a privilege exists under the Parliament of Canada Act, the courts must determine whether the existence and scope of the privilege have been authoritatively established in relation to the Parliament of Canada or the House of Commons of the United Kingdom [at para. 39]:

 

In some matters, free speech in the House for example, the answer will readily be conceded. Other claims to privilege

are less well established. Much of the U.K. law of privilege remains unwritten. . . . In that jurisdiction, the courts exercise due diligence when examining a claim of parliamentary privilege that would immunize the exercise by either House of Parliament of a power that affects the rights of non-Parliamentarians.

[Emphasis added]

 

[33]  In para. 46 of the Vaid decision, Justice Binnie states that parliamentary privilege is defined in terms of what is necessary to enable the House and its members to discharge their constitutional functions. The necessity test is therefore applied in a purposive way because there is a link between necessity and the legislative function. The examination of the necessity test is closely connected to the concept of autonomy, which the House must enjoy in the exercise of its prerogatives:

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 of autonomy required to enable the assembly and its members to do their work with dignity and efficiency.

 

[34]  Nevertheless, there is no doubt that the two privileges asserted in this case are recognized, one by art. 9 of the Bill of Rights (freedom of speech) and the other (the control of proceedings or debates) by the Supreme Court: “[i]t is generally recognized, for example, that the privilege covers ‘proceedings of Parliament’.” Moreover, in the Vaid decision [at para. 29], these two privileges are included in a “category”: “categories” include freedom of speech . . . and control by the Houses of Parliament over “debates or proceedings in Parliament” (as guaranteed by the Bill of Rights, 1689)”. Referring specifically to the right to debate in private, Justice McLachlin stated the following in the case of New Brunswick Broadcasting [at para. 139]: [page741]

It is not necessary on this appeal to consider the case of an attempt to exclude all members of the public, or certain groups of the public, and conduct the business of the House in private, although it may be noted that the English tradition would support the right of the House to debate in private. . . .

Submissions of the Senate of Canada

 

[35]  Counsel for the Senate asserts that testimony before a parliamentary committee is protected by privilege, which precludes cross-examination on the evidence obtained by a parliamentary committee for the following reasons:

(a)There are a number of justifications for providing immunity for the testimony of a witness before a parliamentary committee. First, even if witnesses appearing before a parliamentary committee are not members of Parliament, they are not strangers to the House either. Rather, they are guests who are afforded parliamentary privilege because, as with members, the privilege is necessary to ensure that

they are able to speak openly, free from the fear that their words will be used to discredit them in another proceeding.

(b)This submission finds support in the history of privilege, notably in Stockdale v. Hansard: “whatever is done or said in either House should not be liable to examination elsewhere” and Prebble v. Television New Zealand Ltd., which explains the fundamental importance of the House of Commons as the “grand inquest of the nation”.

(c)Secondly, if the Senate or House of Commons were unable to protect their witnesses, the investigative function as “grand inquest of the nation” would be seriously compromised because witnesses would be less inclined to speak. It is therefore essential that members and witnesses not be prevented from speaking fully and freely.

(d)Parliamentary privilege does not extend so far as to preclude all other entities from concurrently investigating matters that are also before the House. Rather, it precludes other entities from holding members of Parliament or witnesses before committees liable for statements made in the discharge of their functions or in their testimony

before the House or a Committee.

(e) The privilege therefore applies to witnesses because “one of the primary justifications for providing immunity to witnesses, as well as to Members of Parliament, is to ensure [page742] that they can speak openly and freely before a Committee without fear that what they say will later be held against them. In other words, for Parliament to fulfil its deliberative and investigative functions with dignity and efficiency it is necessary that witnesses before House committees can be confident that their testimony is immune from subsequent challenges from outside the House”.

(f)In Prebble v. Television New Zealand Ltd., [1995] 1 A.C. 321, [1994] 3 All E.R. 407 (P.C.), one of the highest courts in the United Kingdom recognized that testimony given before parliamentary committees cannot be used to impeach the credibility of a witness in a judicial or other proceeding by way of cross-examination.

(g)On this point, in the Prebble judgment, the court rejected the proposition that the privilege does not apply to protect testimony given before a Senate committee from cross-examination in a criminal trial. The remarks in the Prebble case must be considered as authoritatively determining the issue in this case:

The first of those submissions is based on the decision in the New South Wales Supreme Court R. v. Murphy (1986) 5 NSWLR 18. In that case a judge was being prosecuted for an alleged offence. The principal Crown witness had previously given evidence to a select committee of the Senate relating to matters in issue in the trial. The question arose whether, in the course of the criminal trial, the witness’s earlier evidence to the select committee could be put to him in cross-examination with a view to showing a previous inconsistent statement. Hunt J. held that article 9 did not prohibit such cross-examination, even if the suggestion was made that the evidence given to the select committee was a lie. He further held that the statements of the select committee could be used to draw inferences, could be analysed and be made the basis of submissions. Almost immediately Commonwealth legislation, the Parliamentary

Privileges Act 1987, made it clear that R. v. Murphy did not represent the law of the Commonwealth.

. . . . .

That Act, therefore, declares what had previously been regarded as the effect of art. 9 [of the Bill of Rights 1689] and [s. 16](3) [of the Act of 1987] contains what, in the opinion of their Lordships, is the true principle to be applied.

It is, of course, no part of their Lordships’ function to decide whether, as a matter of Australian law, the decision of Hunt J. was correct. But art. 9 applies in the United Kingdom and throughout the Commonwealth. In their Lordship’s view the law as stated by Hunt J. 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 [page743] 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 All E.R. 378, [1972] 1 Q.B. 522 (subsequently approved by the House of Lords in Pepper v. Hart [1993] 1 All E.R. 42, [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 art. 9, derived from the historical context in which it was originally enacted. He correctly identified the mischief sought to be remedied in 1688 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 art. 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 art. 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.

Moreover to allow it to be suggested in cross-examination or submission that a member or witness was lying to the House could lead to exactly that conflict between the courts and Parliament which the wide principle of non-intervention is designed to avoid. Misleading the House is a contempt of the House punishable by the House: if a court were also to be permitted to decide whether or not a member or witness had misled the House there would be a serious risk of conflicting decisions on the issue.

(Emphasis added)

(h)The reason for privilege was simple: 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. Furthermore, the privilege must extend to the use of testimony for the purposes of cross-examination because such testimony has an impact on the right of witnesses to protect their reputation, and 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. [page744]

 

[36]  In this case, the Senate of Canada claims two different parliamentary privileges, the privilege of freedom of speech and the privilege of controlling its proceedings and debates and remaining the master of its own procedure, including proceedings in private. These privileges are inherent and recognized by the courts, which cannot determine their scope or when they are to be exercised. Alternatively, even if the necessity for these privileges must be demonstrated, this can easily be done and the Senate proposes to discuss both of them at the same time.

 

[37]  First, the Senate claims that the privilege of freedom of speech includes the privilege for every witness not to be required to answer for his testimony in a forum other than the one in which the testimony was given in the course of parliamentary proceedings.

 

[38]  In two recent decisions, Gagliano v. Canada, supra, and Canada (Deputy Commissioner, Royal Canadian Mounted Police) v. Canada (Commissioner, Royal Canadian Mounted Police), [2007] F.C.J. No. 752, [2008] 1 F.C.R. 752 (F.C.) (“George”), Justice Tremblay-Lamer concluded that parliamentary privilege applies, thereby precluding the use of testimony given before a committee to cross-examine a witness or as the basis of a disciplinary inquiry.

 

[39]  The Gagliano decision involved an application by the Honourable Alfonso Gagliano to cross-examine Charles Guit before the Gomery Commission on the truthfulness of his testimony before the House of Commons Standing Committee on Public Accounts, in which Mr. Gagliano alleged that Mr. Guit had made inconsistent statements. Justice Tremblay-Lamer concluded that this testimony, although it was public and carried live on television at the time, was privileged.

 

[40]  The applicant bases his position entirely on the fact that privilege would not apply in this case because the witnesses cannot face any legal consequences. He relies on R. v. Murphy and Buchanan v. Jennings and the words of Justice Tremblay-Lamer in the Gagliano decision [at para. 61]:

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.

 

[41]  To begin with, the Murphy decision, as discussed above, does not represent the state of the law on this issue. Furthermore, privilege did not apply in the Buchanan decision because the words had been repeated outside the assembly and had been published.

 

[42]  Next, contrary to what is implied by the applicant, Justice Tremblay-Lamer concluded that privilege applied. Applying the [page745] principles mentioned above, including art. 9 of the Bill of Rights and the principle of necessity, she stated [at paras. 72, 74, 77, 83, 84 and 89]:

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.

. . . . .

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. . . . .

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.

. . . . .

I agree with these comments. And by extension, in my opinion, the discretionary authority to protect witnesses from cross-examination based on their testimony to Parliament may also be characterized as a privilege that is necessary for the proper functioning of Parliament in matters of investigation or inquisition.

To characterize the power to preclude cross-examination as a privilege of free speech or investigation does not alter the underlying justification: Parliament must be able to provide this protection to witnesses appearing before parliamentary committees for the purpose of discerning the facts and resolving the question or retracing the events under investigation. Stripped of this power to provide such protection to witnesses, Parliament and its committees could not function; hence its necessity.

. . . . .

There is a third and final reason why I think the power to preclude cross-examination in a subsequent proceeding is needed for the functioning of a parliamentary committee: to exclude the possibility that contradictory findings of fact will be made in the two respective proceedings, the Parliamentary Committee and the Gomery Commission, caught by this review.

[Footnote and emphasis in original omitted; emphasis added] [page746]

 

[43]  Relying on para. 26 in the Vaid decision, the Senate of Canada concludes that only Parliament can abrogate a privilege that belongs to the Senate, which is a constitutional principle, and this can only be done by means of a constitutional act indicating a clear, express and unequivocal intention to do so.

 

Analysis and Decision

 

[44]  The application should be dismissed with costs.

 

[45] R. v. Stinchcombe, [1991] 3 S.C.R. 326, [1991] S.C.J. No. 83, 68 C.C.C. (3d) 1, which requires the Crown to disclose all relevant information subject to a claim of privilege, does not apply in this case. Counsel representing the Attorney General of Ontario has correctly indicated that the Crown is not in possession of the Senate transcripts and that the only document it received is the report of the Royal Canadian Mounted Police, a report that Senator Lavigne’s counsel also has in his possession. R. v. O’Connor, [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98, 103 C.C.C. (3d) 1 involved the disclosure of a medical record, a question of a private third- party right.

 

[46]  There was no question in that case of a threat of constitutional proportions impeding the accused from mounting a full and complete defence. In the present case, the Senate transcripts may contain relevant information but, despite the relevance in question, there may be limitations on the applicant’s rights to obtain it in order to prepare a full and complete defence to the charges against him. In sum, I agree that once a privilege has been established, the evidence contained in the privilege, whether relevant or not, cannot be filed in court or disclosed. A striking example is the solicitor/client privilege referred to in Schedule B of the affidavit of documents in civil proceedings, in which any document listed in Schedule B is exempt from production. The relevancy of the document does not require the litigants to produce it. Senator Lavigne is not contesting the existence of parliamentary privilege in this case, only the Senate’s position that it is necessary to withhold the transcript. I am in agreement that there is an issue of parliamentary privilege in this case, just as there was in the Gagliano decision where there had been public hearings. The court held that the transcripts could not be used. In the present case, the Senate chose to hear the witnesses in private.

 

[47]  Another problem that I cannot ignore is that I would have to order the Senate to produce the transcripts. I do not believe that I have the jurisdiction to do so. Such a decision would amount to reversing the Senate’s decision to hold the hearings in private.

 

[48]  My role is simply to make a finding as to whether or not the claimed parliamentary privilege exists. If I find that there is [page747] a parliamentary privilege, as I do in this case, it is not for me to determine how it should be applied in a particular case. The decisions in Vaid (p. 681 S.C.R.) and New Brunswick Broadcasting (p. 389 S.C.R.) are authorities for such a conclusion, which I adopt. In the case of an unrecognized privilege, the necessity for the privilege must be determined. If it is necessary, the privilege exists and that ends the dispute. A decision on my part to require the Senate to produce the transcripts would have the effect of reversing the Senate’s decision by asking them to provide the transcripts and would also have the effect of reversing the senators’ decision to hold the hearings involving Senator Raymond Lavigne in private. I would then be making public what the Senate did not wish to make public. The Senate can decide to hold its sessions in private; this is a recognized parliamentary privilege and the Senate is not required to establish the necessity for it.

 

[49]  In the Gagliano decision, Mr. Gagliano had testified before a House of Commons committee and was later summoned to testify before the Gomery inquiry. He wanted to use the transcripts to cross-examine the witnesses, claiming that there were no legal consequences for the witnesses concerned. The Federal Court did not allow Mr. Gagliano to use the transcripts from the parliamentary committee. Madam Justice Tremblay-Lamer stated that the issue involved parliamentary privilege whether or not there were legal consequences. This is an excerpt from what Madam Justice Tremblay-Lamer stated in the Gagliano decision, at paras. 72, 74, 77, 83, 84 and 89:

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.

. . . . .

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.

. . . . .

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 [page748] 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.

. . . . .

I agree with these comments. And by extension, in my opinion, the discretionary authority to protect witnesses from cross-examination based on their testimony to Parliament may also be characterized as a privilege that is necessary for the proper functioning of Parliament in matters of investigation or inquisition.

To characterize the power to preclude cross-examination as a privilege of free speech or investigation does not alter the underlying justification: Parliament must be able to provide this protection to witnesses appearing before Parliamentary committees for the purpose of discerning the facts and resolving the question or retracing the events under investigation. Stripped of this power to provide such protection to witnesses, Parliament and its committees could not function; hence its necessity.

. . . . .

There is a third and final reason why I think the power to preclude cross-examination in a subsequent proceeding is needed for the functioning of a parliamentary committee: to exclude the possibility that contradictory findings of fact will be made in the two respective proceedings, the Parliamentary Committee and the Gomery Commission, caught by this review. [Footnote and emphasis in original omitted]

 

[50]  I am in agreement with counsel for the Senate of Canada that the privilege at issue was intended to encourage witnesses to speak openly, to preserve the House’s investigative capacity and to avoid contradictory results between the investigative activities of the House and those of the courts. These objectives are the necessary foundation for the proper functioning of parliamentary committees, in particular, their investigative function, which is a protected sphere of activity.

 

[51]  In addition, as counsel for the Senate of Canada has indicated, in the Gagliano case the judge refused cross- examination because it could have resulted in the witness being judged unfavourably, which, in turn, would have thwarted the objectives protected by the privilege of the right of free speech. This also applies in the case of Senator Lavigne.

 

[52]  In the George decision, Justice Tremblay-Lamer concluded that the RCMP could not rely on testimony before the House of Commons Standing Committee on Public Accounts relating to the investigation by the Ottawa Police Service into allegations of wrongdoing respecting the RCMP’s pension and insurance plans in order to conduct an internal investigation under the Code of Conduct. Since this specific internal investigation was based exclusively on the testimony, parliamentary privilege applied. [page749]

 

[53]  The same is true in Gagliano, supra, at paras. 52-53. In that case, Alfonso Gagliano wanted to cross-examine Charles Guit before the Gomery Commission on the truthfulness of his evidence before the House of Commons Standing Committee on Public Accounts where, according to Mr. Gagliano, Mr. Guit had made inconsistent statements. Justice Tremblay-Lamer concluded that this testimony, although it was public and broadcast live on television at the time, was privileged.

 

[54]  As shown by counsel for the Senate of Canada, the internal investigation was based on three allegations, one of which was directly connected to the testimony. The judge concluded that privilege applied [at paras. 70, 73-75]:

Parliamentary privilege does not extend so far as to preclude all other entities from concurrently investigating matters which are also before the House. Rather it precludes other entities from holding Members of Parliament or witnesses before committees liable for statements made in the discharge of their functions in the House. Therefore, provided the RCMP is able to conduct its investigation without resorting to the applicant’s testimony before the House, parliamentary privilege does not apply and the RCMP is free to do as it pleases within the confines of the law and its constituent statute.

. . . . .

I now turn to the second listed basis for the Code of Conduct investigation, the allegation that the applicant gave false testimony before the House Committee.

The applicant submits that she cannot be investigated by the RCMP for deliberately misleading the Public Accounts Committee because her testimony is protected by parliamentary privilege. She says that the RCMP investigating her for statements she made before the Public Accounts Committee is analogous to the police investigating whether a Member of Parliament was dishonest in the House of Commons.

I agree with the applicant. Unlike the other allegations, which may be established from other sources of evidence, there is no way to demonstrate in an internal Code of Conduct proceeding that the applicant gave false testimony to a parliamentary committee other than by using the allegedly false statements as evidence against the applicant.

Parliamentary privilege does not allow this.

 

[55]  I am in agreement with the conclusions of counsel for the Senate of Canada that what is said before a House of Commons or Senate Committee is privileged and cannot be used to discredit a witness. In the Gagliano decision, an attempt was made to use Mr. Guit’s testimony before the Committee to impeach his credibility. In the case of Deputy Commissioner George, her testimony was sought to be used in the context of a disciplinary investigation. In both cases, the judge decided that the testimony was privileged and could not be used.

 

[56]  With respect to the conflict between privileges that enjoy constitutional status and the rights of an accused under the [page750] Canadian Charter of Rights and Freedoms, counsel for Senator Lavigne cited decisions to the effect that the protection of one must not undermine the protection of the other and that there must instead be an accommodation between the two rights.

 

[57]  In the New Brunswick Broadcasting decision, Madam Justice McLachlin stated the following on this subject [at para. 126]:

In summary, it seems clear that, from an historical perspective, Canadian legislative bodies possess such inherent privileges as may be necessary to their proper functioning. These privileges are part of the fundamental law of our land, and hence are constitutional. The courts may determine if the privilege claimed is necessary to the capacity of the legislature to function, but have no power to review the rightness or wrongness of a particular decision made pursuant to the privilege.

 

[58]  I am in agreement with counsel for the Senate of Canada that the Charter cannot remove parliamentary privilege under the principle that one part of the Constitution cannot be abrogated by another (New Brunswick Broadcasting, at p. 390 S.C.R.).

 

[59]  Accordingly, the applicant cannot obtain the transcripts he has requested under s. 7 of the Charter. In New Brunswick Broadcasting, the court held that parliamentary privilege has the same status and constitutional weight as the Charter itself.

 

Application dismissed.