Duffy v. The Senate of Canada et al.

[Indexed as: Duffy v. Canada (Senate)]

Ontario Reports

Court of Appeal for Ontario

Strathy C.J.O., MacPherson and Jamal JJ.A.

August 28, 2020

151 O.R. (3d) 489 | 2020 ONCA 536

Case Summary

Actions — Bars — Parliamentary privilege — Senator suing Senate for damages after his suspension from the Senate for claiming inappropriate expenses — Senate having action dismissed based on established parliamentary privileges regarding discipline, internal administration, parliamentary proceedings and freedom of speech — Motion judge did not err in holding that parliamentary privilege immunized all actions underlying plaintiff's claim against the Senate — Plaintiff's allegations could be adjudicated only by the Senate itself and not by the courts.

Charter of Rights and Freedoms — Remedies — Senator suing Senate for damages after his suspension from the Senate for claiming inappropriate expenses — Senate having action dismissed based on established parliamentary privileges regarding discipline, internal administration, parliamentary proceedings and freedom of speech — Motion judge did not err in not reconciling Senate's parliamentary privilege with the Charter — Where parliamentary privilege applied, Senate and not the courts had competence to adjudicate alleged Charter breach.

Constitutional law — Parliamentary privilege — Senator suing Senate for damages after his suspension from the Senate for claiming inappropriate expenses — Senate having action dismissed based on established parliamentary privileges regarding discipline, internal administration, parliamentary proceedings and freedom of speech — Motion judge did not err in holding that parliamentary privilege immunized all actions underlying plaintiff's claim against the Senate — Plaintiff's allegations could be adjudicated only by the Senate itself and not by the courts.

Courts — Jurisdiction — Senator suing Senate for damages after his suspension from the Senate for claiming inappropriate expenses — Senate having action dismissed based on established parliamentary privileges regarding discipline, internal administration, parliamentary proceedings and freedom of speech — Motion judge did not err in holding that parliamentary privilege immunized all actions underlying plaintiff's claim against the Senate — Plaintiff's allegations could be adjudicated only by the Senate itself and not by the courts.

The plaintiff was a member of the Senate of Canada. He was suspended from the Senate for allegedly claiming inappropriate expenses as a senator and then accepting funds from the Prime Minister's Chief of Staff to reimburse the Senate for those expenses. He was acquitted of charges of fraud, breach of trust and accepting a bribe. He alleged that representatives of the Prime Minister's Office ("PMO") and individual senators interfered with the Senate's investigation into his expenses for improper and purely political purposes, leading to the Senate's decision to suspend him, to deny him income and other benefits, and to refer matters to the RCMP for criminal investigation. He sued the Senate and the Attorney General of Canada for damages for malicious prosecution, misfeasance in public office, and unjust enrichment; for disqualifying him as a senator on unconstitutional grounds; and for breaches of various rights under the Canadian Charter of Rights and Freedoms. The Senate moved to dismiss or stay the action for want of jurisdiction. For the purposes of the motion, the motion judge assumed that all the facts pleaded in the statement of claim were true. The motion judge held that the Senate's impugned conduct fell within the scope of its established parliamentary privileges to discipline its members and to administer its internal affairs, and over parliamentary proceedings and freedom of speech. She also ruled that the Senate did not waive its parliamentary privilege when the Senate Standing Committee on Internal Economy, Budgets and Administration ("CIBA") referred the plaintiff's acceptance of money from the Chief of Staff to the RCMP and cooperated with the criminal investigation against him. The motion judge therefore held that parliamentary privilege immunized all the actions underlying the plaintiff's claim against the Senate, and thus the court had no role in judging their lawfulness or fairness. She also held that because the plaintiff could not assert any of his claims as against the Senate without relying on privileged speech, it was appropriate to refuse leave to amend the claim. She therefore dismissed the action as against the Senate. The plaintiff appealed.

Held, the appeal should be dismissed.

The motion judge did not err in ruling that the plaintiff's allegations against the Senate were protected from judicial review by one or more established categories of parliamentary privilege. The Senate's acts in investigating the plaintiff's expenses, suspending him, and taking other measures fell within the Senate's established parliamentary privilege to discipline its members. The Senate had exclusive jurisdiction to administer its internal affairs in relation to the allocation of parliamentary resources for members' allowances and benefits, including decisions on the propriety of the plaintiff's expenses. The plaintiff's allegations about political interference in the CIBA's investigation and findings and the Senate's response in suspending him all targeted conduct falling within the established parliamentary privilege over proceedings in Parliament. Many of the plaintiff's allegations impugned the established parliamentary privilege of exercises of free speech before the Senate and the CIBA.

The motion judge did not err in ruling that parliamentary privilege applied to the Senate's allegedly unlawful conduct. Although the judge in the criminal proceedings described some of the conduct from within the PMO as "unacceptable" and "driven by deceit", he made no findings of criminality. However, even assuming that the plaintiff's statement of claim did allege criminality, his argument was framed too broadly because it called into question the disciplinary and internal decisions taken by the Senate and the CIBA on matters ordinarily falling within established categories of parliamentary privilege. There was also no support for the plaintiff's contention that the rule of law permitted the courts to scrutinize the legality of conduct within Parliament if that conduct was otherwise protected by parliamentary privilege.

The motion judge did not err in failing to address the necessity of the categories of parliamentary privilege claimed. At the federal level there was a two-step approach to address questions of parliamentary privilege. The first step was to ask whether the privilege had been authoritatively established based on Canadian or British precedent. That step had been met, so there was no need to undertake the second step of asking whether the privilege was supported as a matter of principle under the necessity test. In any event, if it were necessary to decide the point, each of the four categories of parliamentary privilege at issue continued to meet the necessity test.

The motion judge did not err by failing to reconcile the Senate's parliamentary privilege with the Charter. Where parliamentary privilege applies, the legislative body holding the privilege has the exclusive competence to adjudicate an alleged Charter breach.

The motion judge did not err in ruling that the Senate had not waived its parliamentary privilege. The motion judge cited caselaw accepting that parliamentary privilege can be waived by Parliament itself, but concluded that because parliamentary privilege is a constitutional principle it requires an express waiver by Parliament and cannot be waived implicitly. The statement of claim pleaded no express, clear and unambiguous waiver by the Senate of its parliamentary privilege. Also, merely referring the matter to the RCMP for criminal investigation did not meet the required standard for waiver of parliamentary privilege.

Canada (House of Commons) v. Vaid, [2005] S.C.R. 667, [2005] S.C.J. No. 28, 2005 SCC 30, 252 D.L.R. (4th) 529, 333 N.R. 314, 28 Admin. L.R. (4th) 1, 41 C.C.E.L. (3d) 1, [2005] CLLC para. 230-016, 135 C.R.R. (2d) 189, 52 C.H.R.R. D/294; Harvey v. New Brunswick (Attorney General), 1996 CanLII 163 (SCC), [1996] 2 S.C.R. 876, [1996] S.C.J. No. 82, 137 D.L.R. (4th) 142, 201 N.R. 1, 37 C.R.R. (2d) 189, folld

Canada (Board of Internal Economy) v. Boulerice, [2019] F.C.J. No. 183, [2019] 3 F.C.R. 145, 2019 FCA 33; Filion c. Chagnon, [2017] J.Q. no 3883, 2017 QCCA 630; affg [2016] J.Q. no 18156, 2016 QCCS 6146; Villeneuve v. Northwest Territories (Legislative Assembly), [2008] N.W.T.J. No. 40, 2008 NWTSC 41, [2008] 10 W.W.R. 704, 85 Admin. L.R. (4th) 281 (S.C.), apld

Canada (Conseil des Ports Nationaux) v. Langelier, 1968 CanLII 51 (SCC), [1969] S.C.R. 60, [1968] S.C.J. No. 80, 2 D.L.R. (3d) 81; Roncarelli v. Duplessis, 1959 CanLII 50 (SCC), [1959] S.C.R. 121, [1959] S.C.J. No. 1, 16 D.L.R. (2d) 689, distd

Chagnon v. Syndicat de la fonction publique et parapublique du Québec, [2018] 2 S.C.R. 687, [2018] S.C.J. No. 39, 2018 SCC 39, 2019 CLLC para. 220-001, 40 Admin. L.R. (6th) 1, 426 D.L.R. (4th) 585, 295 L.A.C. (4th) 223; R (on the application of Miller) v. The Prime Minister, [2019] UKSC 41, [2019] 3 WLR 589, [2019] 5 LRC 490, [2019] All ER (D) 61 (Sep); Roman Corp. v. Hudson's Bay Oil & Gas Co., 1973 CanLII 15 (SCC), [1973] S.C.R. 820, [1973] S.C.J. No. 70, 36 D.L.R. (3d) 413, consd

Other cases referred to

Bradlaugh v. Gossett (1884), 12 Q.B.D. 271, 53 LJQB 209, 32 WR 552, 50 LT 620; British Columbia (Attorney General) v. Provincial Court Judges' Ass'n of British Columbia, [2020] S.C.J. No. 20, 2020 SCC 2; Canada (Royal Canadian Mounted Police) v. Canada (Attorney General), [2007] F.C.J. No. 752, [2008] 1 F.C.R. 752, 2007 FC 564, 65 Admin. L.R. (4th) 111, 313 F.T.R. 183; Gagliano v. Canada (Attorney General), [2006] F.C.J. No. 338, 2006 FCA 86, 268 D.L.R. (4th) 190 (Fed. C.A.); affg [2005] F.C.J. No. 683, [2005] 3 F.C.R. 555, 2005 FC 576, 265 F.T.R. 218, 253 D.L.R. (4th) 701, 30 Admin. L.R. (4th) 171 (F.C.); Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 2002 SCC 33, 211 D.L.R. (4th) 577, 286 N.R. 1, [2002] 7 W.W.R. 1, 219 Sask. R. 1, 10 C.C.L.T. (3d) 157, 30 M.P.L.R. (3d) 1; Lavigne v. Ontario (Attorney General) (2008), 2008 CanLII 89825 (ON SC), 91 O.R. (3d) 728, 91 O.R. (3d) 750 (Fr.), [2008] O.J. No. 2951 (S.C.J.); Mikisew Cree First Nation v. Canada (Governor General in Council), [2018] 2 S.C.R. 765, [2018] S.C.J. No. 40, 2018 SCC 40, 420 C.R.R. (2d) 285, 20 C.E.L.R. (4th) 1, 426 D.L.R. (4th) 647, [2019] 1 C.N.L.R. 277; New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), 1993 CanLII 153 (SCC), [1993] 1 S.C.R. 319, [1993] S.C.J. No. 2, 100 D.L.R. (4th) 212, 146 N.R. 161, 118 N.S.R. (2d) 181, 13 C.R.R. (2d) 1; Ontario v. Rothmans Inc. (2014), 120 O.R. (3d) 467, [2014] O.J. No. 2816, 2014 ONSC 3382, 374 D.L.R. (4th) 175 (S.C.J.); Prebble v. Television of New Zealand Ltd., [1994] 3 NZLR 1, [1995] 1 A.C. 321 (P.C.); R. v. Bunting (1885), 7 O.R. 524, [1885] O.J. No. 345 (H.C. (Q.B. Div.)); R. v. Chaytor, [2010] UKSC 52, [2011] 1 All ER 805, [2010] 3 WLR 1707, [2011] 3 LRC 1, [2011] 1 Cr App Rep 274, [2010] NLJR 1718, 174 CL&J 782; R. v. Connolly (1891), 22 O.R. 220, [1891] O.J. No. 44 (H.C. (Comm. Pl.)); R. v. Duffy, [2016] O.J. No. 2033, 2016 ONCJ 220 (C.J.); Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, 1997 CanLII 317 (SCC), [1997] 3 S.C.R. 3, [1997] S.C.J. No. 75, 150 D.L.R. (4th) 577, 217 N.R. 1, [1997] 10 W.W.R. 417, 206 A.R. 1, 121 Man. R. (2d) 1, 156 Nfld. & P.E.I.R. 1, 49 Admin. L.R. (2d) 1, 118 C.C.C. (3d) 193, 11 C.P.C. (4th) 1, 46 C.R.R. (2d) 1, 35 W.C.B. (2d) 513; Reference re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 S.C.R. 217, [1998] S.C.J. No. 61, 161 D.L.R. (4th) 385, 228 N.R. 203, 55 C.R.R. (2d) 1; Southam Inc. v. Canada (Attorney General), 1990 CanLII 13006 (FCA), [1990] F.C.J. No. 712, [1990] 3 F.C. 465, 73 D.L.R. (4th) 289, 114 N.R. 255, 1 C.R.R. (2d) 193 (C.A.)

Statutes referred to

Bill of Rights (U.K.), 1688, 1 Will. & Mar. Sess. 2, c. 2, art. 9

Canadian Charter of Rights and Freedoms, ss. 7, 11(d), 12

Constitution Act, 1867, 30 & 31 Vict., c. 3, ss. 18, 31

Parliament of Canada Act, R.S.C. 1985, c. P-1, ss. 4, (a), (b), 19.1(3), (4), 19.3, 19.5(1), 19.6(1), 52.3, 52.6(1)

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 21.01(1) (a), (3)(a), (d), 25.11

Rules of the Senate of Canada (2017), rule 15-4

Authorities referred to

Boulton, C.J., ed., Erskine May's Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 21st ed. (London: Butterworth-Heinemann, 1989)

Chaplin, Steven R., "House of Commons v. Vaid: Parliamentary Privilege and the Constitutional Imperative of the Independence of Parliament" (2009), 2 J.P.P.L. 153

Hogg, Peter W., Constitutional Law of Canada, looseleaf (Rel. No. 1, 2014), 5th ed. (Toronto: Carswell, 2007)

Maingot, J.P. Joseph, Parliamentary Immunity in Canada, 2nd ed. (Toronto: LexisNexis Canada, 2016)

Newman, Warren J., "Parliamentary Privilege, the Canadian Constitution and the Courts" (2008) 39 Ottawa L. Rev. 573

APPEAL by the plaintiff from an order of a motion judge dismissing an action for lack of jurisdiction.

Lawrence Greenspon and Tina H. Hill, for appellant.

Maxime Faille, Guy Régimbald and John J. Wilson, for respondent, the Senate of Canada.

Alexander Gay and Sanam Goudarzi, for respondent, the Attorney General of Canada.

The judgment of the court was delivered by

JAMAL J.A.: —

A. Introduction

[1] Parliamentary privilege has been part of Canadian constitutional law since Confederation. The privilege, which is enjoyed by the Senate, the House of Commons, and the provincial legislative assemblies, helps maintain the constitutional separation of powers between the legislative, executive, and judicial branches of government and thus promotes the "constitutional equilibrium" of Canada's democracy: Canada (House of Commons) v. Vaid, [2005] S.C.R. 667, [2005] S.C.J. No. 28, 2005 SCC 30, at para. 4. Parliamentary privilege does this by shielding certain areas of legislative activity from judicial or executive review, thereby giving "the legislative branch of government the autonomy it requires to perform its constitutional functions": Chagnon v. Syndicat de la fonction publique et parapublique du Québec, [2018] 2 S.C.R. 687, [2018] S.C.J. No. 39, 2018 SCC 39, at para. 1. When parliamentary privilege applies, it deprives the courts of jurisdiction over the privileged matter and confers an immunity from civil claims: Vaid, at para. 4; Chagnon, at para. 19.

[2] The issue in this appeal is whether parliamentary privilege deprives the courts of jurisdiction to adjudicate a civil claim for damages brought by the appellant, Senator Michael Duffy, against the respondent, the Senate of Canada.

[3] Senator Duffy's claim alleges that the Senate acted unlawfully in how it investigated, prosecuted, and suspended him from the Senate for allegedly claiming inappropriate expenses as a senator and by then accepting funds from the Prime Minister's Chief of Staff, Mr. Nigel Wright, to reimburse the Senate for those expenses. Senator Duffy was later charged criminally and tried for fraud, breach of trust, and accepting a bribe, but was acquitted by the Ontario Court of Justice. Senator Duffy alleges that representatives from the Prime Minister's Office ("PMO") and individual senators interfered with the Senate's investigation into his expenses for improper and purely political purposes. This, he says, led to the Senate's decisions to suspend him, to deny him income and other benefits he says he was entitled to as a senator, and to refer matters to the Royal Canadian Mounted Police ("RCMP") for criminal investigation. Senator Duffy also alleges that the Attorney General of Canada is liable for wrongs committed by the RCMP in negligently investigating and wrongly laying criminal charges against him.

[4] The motion judge granted the Senate's motion to dismiss the action as against it for lack of jurisdiction based on parliamentary privilege. She held that four established categories of parliamentary privilege apply: the Senate's parliamentary privileges to discipline its members and administer its internal affairs, and its privileges over parliamentary proceedings and freedom of speech. Senator Duffy now appeals.

[5] For the reasons that follow, I would dismiss the appeal. Like the motion judge, I conclude that Senator Duffy's claims against the Senate trench on matters that fall within the scope of the Senate's established parliamentary privileges. The courts therefore lack jurisdiction to adjudicate these claims. These matters fall within the exclusive competence of the Senate to adjudge according to its own rules. This conclusion respects the separation of powers between the courts and the legislative branch of government and provides the Senate with the autonomy it needs to discharge its constitutional role in our democracy.

B. Senator Duffy's Allegations

[6] By amended statement of claim dated September 8, 2017, Senator Duffy sued the Senate and the Attorney General of Canada for over $7 million.

[7] This appeal, like the motion in the court below, concerns the Senate's motion to dismiss or strike out the claims as against it for want of jurisdiction. In the proceedings below, the Attorney General of Canada did not move to dismiss or strike the claims as against it.

[8] Senator Duffy's amended statement of claim makes the following allegations against the Senate, which for the purposes of the motion before the motion judge and the appeal before this court are assumed to be true:

-- In January 2009, Michael Duffy was appointed as a senator for Prince Edward Island ("PEI"), where he was born, has deep roots, and owned a property. At the time, the Prime Minister's Chief of Staff and Senator Tkachuk, then Vice-Chair of the Senate Standing Committee on Internal Economy, Budgets and Administration (the "CIBA"), assured Senator Duffy that it was appropriate for him to claim per diem expenses while living at his home in Ottawa, where he had lived throughout his almost 40-year career in journalism. This was because his PEI residence was his residence in the province for which he was appointed, while his home in Ottawa was his residence while attending to his duties at the Senate. Senator Duffy therefore claimed and received per diem expenses.

-- In February 2013, shortly after the media began scrutinizing Senate expense issues, the CIBA engaged Deloitte, an audit, consulting, and financial advisory firm, to independently examine Senator Duffy's expenses.

-- In late February 2013, the PMO learned that the Senate was looking for Senator Duffy to repay about $90,000 in expenses. Because of threats and pressure from the PMO, Senator Duffy agreed to repay the Senate, even though he insisted that his expenses were appropriate. As part of a political damage control strategy, the Prime Minister's Chief of Staff agreed to cover this amount personally. In late March 2013, Mr. Wright gave Senator Duffy's lawyer a cheque for $90,000.

-- In May 2013, Deloitte reported that the Senate's rules for expenses were not clear. Besides one clerical error, Deloitte did not find any of Senator Duffy's expenses were inappropriate. On receiving Deloitte's report, the CIBA presented its own report (the "Twenty-Second Report") to the Senate recommending that Senator Duffy's expenses were proper. The Senate adopted the Twenty-Second Report.

-- In mid-May 2013, the media reported that Mr. Wright had written a personal cheque to cover Senator Duffy's expenses. Mr. Wright then resigned as the Prime Minister's Chief of Staff.

-- In late May 2013, on orders from the PMO, the CIBA released a new, politically motivated report (the "Twenty-Sixth Report"), which now alleged that Senator Duffy's expenses were improper. It also referred the legality of the $90,000 repayment to the RCMP for investigation.

-- In October 2013, the Leader of the Government in the Senate introduced a motion to suspend Senator Duffy for "gross negligence" in the management of his parliamentary resources. The motion also provided that, during his suspension, the Senate should deny Senator Duffy all benefits, including remuneration and reimbursement of expenses, payment of sessional and living allowances, pension accrual, and access to all other Senate resources.

-- On November 5, 2013, the Senate voted to suspend Senator Duffy from the Senate for gross negligence, without an independent and impartial hearing, without procedural fairness, and in breach of the principles of natural justice and the presumption of innocence. Senator Duffy was the only senator suspended, even though the Auditor General of Canada later reported that 30 senators (not including Senator Duffy) had claimed improper expenses, none of whom was accused of gross negligence, suspended, or denied any of the benefits denied to Senator Duffy during his suspension.

-- On July 17, 2014, the RCMP charged Senator Duffy with 31 offences relating to his Senate expenses and his receipt of the $90,000 cheque from Mr. Wright.

-- On August 2, 2015, Parliament was dissolved, automatically ending Senator Duffy's suspension from the Senate. Senator Duffy alleges that the Senate continued withholding his pay and expenses pending the outcome of his criminal trial.[^1]

-- On April 21, 2016, Vaillancourt J. of the Ontario Court of Justice acquitted Senator Duffy of all criminal charges: R. v. Duffy, [2016] O.J. No. 2033, 2016 ONCJ 220 (C.J.). He concluded that Senator Duffy "committed no prohibited act, violated no Senate rules and did not in all the circumstances commit the actus reus of fraud": at para. 848. He also found that Mr. Wright had ordered "senior members of the Senate around as if they were pawns on a chessboard", and that "those same senior members of the Senate [were] meekly acquiescing to Mr. Wright's orders": at paras. 1030-1031. Vaillancourt J. stated that "[t]he political, covert, relentless, unfolding of events is mindboggling and shocking", and that in his view the "plotting" could "only be described as unacceptable": at paras. 1036, 1038.

-- In July 2016, the Senate announced that it would claw back $17,000 from Senator Duffy's salary to recover funds it alleged he had inappropriately claimed as Senate expenses, even though Vaillancourt J. had found these expenses were proper.

-- In August 2016, contrary to the Senate's own reimbursement policy, the CIBA rejected Senator Duffy's request for partial reimbursement of legal expenses and disbursements incurred in successfully defending the criminal charges. Later, the Senate also denied Senator Duffy's request for reimbursement of his salary, living allowances, and pension accruals withheld while he was suspended from the Senate.

[9] Based on these allegations, Senator Duffy claims that the Senate is liable for malicious prosecution, misfeasance in public office, and unjust enrichment; for disqualifying him as a senator on grounds not provided under s. 31 of the Constitution Act, 1867, 30 & 31 Vict., c. 3; and for breach of his rights under the Canadian Charter of Rights and Freedoms: s. 7 (the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice), s. 11(d) (the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal), and s. 12 (the right not to be subjected to any cruel and unusual treatment or punishment).

C. The Motion Judge's Decision

[10] The Senate's motion sought an order dismissing or staying the action as against the Senate for want of jurisdiction (rule 21.01(3)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194); or alternatively, an order dismissing or striking the claim as against the Senate as scandalous, frivolous, vexatious, or otherwise an abuse of the process of the court (rules 21.01(3)(d) and 25.11); or in the further alternative, a determination of a question of law raised by the pleading to dispose of all or part of the action or an order striking out the claims relating to the Senate on the ground that they disclose no reasonable cause of action (rules 21.01(1)(a) and (b)).

[11] The motion judge granted the Senate's motion to dismiss Senator Duffy's action as against it for want of jurisdiction: at paras. 14, 119 and 121.

[12] For the purposes of the motion, the motion judge assumed that all the facts pleaded in the amended statement of claim are true, and then asked whether it is plain and obvious that the claims against the Senate could not succeed: at para. 18.

[13] The motion judge stated that the court's task is to determine whether the activity impugned in the amended statement of claim falls within the scope of an established parliamentary privilege. If it does, the activity is immunized from judicial review and the court's inquiry is at an end: at paras. 31-32.

[14] In the motion judge's view, the reasons of the majority of the Supreme Court in Chagnon did not change the Court's earlier holding in Vaid that the necessity of established privileges of the federal Parliament need not be proved again each time they are invoked, even if a party alleges an infringement of their Charter rights: at paras. 33-38.

[15] The motion judge held that the Senate's impugned conduct falls within the scope of the Senate's established parliamentary privileges (1) to discipline its members (at paras. 44-63), (2) to administer its internal affairs (at paras. 64-88), (3) over parliamentary proceedings (at paras. 89-92), and (4) over freedom of speech (at paras. 93-114).

[16] She also ruled that the Senate did not waive its parliamentary privilege when the CIBA referred Senator Duffy's acceptance of money from Mr. Wright to the RCMP and co-operated with the criminal investigation against him. She noted that the amended statement of claim did not explicitly allege waiver, and ruled that because parliamentary privilege is a constitutional principle, it cannot be waived implicitly. She held that Senator Duffy's pleading alleged no conduct that clearly and unambiguously suggested that the Senate had waived its privilege: at paras. 109-114.

[17] The motion judge therefore held that parliamentary privilege immunized all the actions underlying Senator Duffy's claim against the Senate, and thus the court has "no role in judging their lawfulness or fairness": at para. 119. She also held that because Senator Duffy could not assert any of his claims as against the Senate without relying on privileged speech, it was appropriate to refuse leave to amend the claim: at para. 120. She therefore dismissed Senator Duffy's action as against the Senate: at paras. 14, 122.

D. Issues

[18] Senator Duffy raises five main issues on appeal:

(1) The motion judge erred in ruling that the impugned actions of the Senate fall within the scope of established categories of parliamentary privilege;

(2) The motion judge erred in ruling that parliamentary privilege applies to the Senate's allegedly unlawful conduct;

(3) The motion judge erred by failing to address the necessity of the categories of parliamentary privilege claimed;

(4) The motion judge erred by failing to reconcile the Senate's parliamentary privilege with the Charter; and

(5) The motion judge erred in ruling that the Senate had not waived its parliamentary privilege.

[19] In what follows, I will first consider the standard of review and summarize the general principles of parliamentary privilege that apply at the federal level to the Senate. I will then address the issues raised by Senator Duffy.

E. Discussion

The standard of review

[20] The parties agree that the standard of appellate review is correctness. The central issue in the appeal is whether the Senate's parliamentary privilege deprives the courts of jurisdiction to adjudicate Senator Duffy's claims against the Senate. This raises questions of law that must be decided correctly: Chagnon, at para. 17; Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 2002 SCC 33, at paras. 8-9; and Canada (Board of Internal Economy) v. Boulerice, [2019] F.C.J. No. 183, [2019] 3 F.C.R. 145, 2019 FCA 33, at para. 48, leave to appeal refused, [2019] S.C.C.A. No. 103.

General principles of parliamentary privilege

(a) Definition

[21] The late Professor Peter Hogg described parliamentary privilege as follows: "The federal Houses of Parliament and the provincial legislative assemblies possess a set of powers and privileges that are 'necessary to their capacity to function as legislative bodies'. These powers and rights are known collectively as 'parliamentary privilege'": Peter W. Hogg, Constitutional Law of Canada, looseleaf (Rel. No. 1, 2014), 5th ed. (Toronto: Carswell, 2007), vol. 1, at §1.7, p. 1-13, citing New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), 1993 CanLII 153 (SCC), [1993] 1 S.C.R. 319, [1993] S.C.J. No. 2, at p. 381 S.C.R., per McLachlin J. (as she then was) for the majority, and Warren J. Newman, "Parliamentary Privilege, the Canadian Constitution and the Courts" (2008) 39 Ottawa L. Rev. 573.

[22] Two of the leading Canadian cases on parliamentary privilege are Vaid and Chagnon. In Vaid, the Supreme Court held that parliamentary privilege did not prevent the Canadian Human Rights Tribunal from entertaining a workplace discrimination and harassment complaint brought against the Speaker of the House of Commons by his former chauffeur. In Chagnon, a majority of the Supreme Court held that parliamentary privilege did not prevent a labour arbitrator from adjudicating a union's grievance of the decision of the President of the National Assembly of Québec to dismiss three of the Assembly's security guards.

[23] In Vaid, Binnie J. defined parliamentary privilege as "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": Vaid, at para. 29(2) (citations omitted); see also, Chagnon, at para. 19.

[24] Parliamentary privilege provides a legal exemption "from some duty, burden, attendance or liability to which others are subject": Chagnon, at para. 19, citing J.P. Joseph Maingot, Parliamentary Immunity in Canada, 2nd ed. (Toronto: LexisNexis Canada, 2016, at p. 13; see, also, New Brunswick Broadcasting, at p. 378 S.C.R.

(b) Sources

[25] Historically, parliamentary privilege developed in England in the 17th century "through the struggle of the House of Commons for independence from the other branches of government", including the Crown and the judiciary, which had shown no hesitation to intrude into the workings of Parliament, such as by arresting and prosecuting members of Parliament for allegedly seditious words spoken in debate in the House: Chagnon, at para. 22; New Brunswick Broadcasting, at pp. 344-45 S.C.R.

[26] Parliamentary privilege was gradually accepted as forming part of the common law of England: New Brunswick Broadcasting, at pp. 344-45 S.C.R.; Hogg, at §1.7, p. 1-14. It was also recognized in the Bill of Rights (U.K.), 1688, 1 Will. & Mar. Sess. 2, c. 2, which provides that "the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament": Vaid, at para. 21; Chagnon, at para. 22; and New Brunswick Broadcasting, at p. 345 S.C.R.

[27] Parliamentary privilege became part of Canadian law through the common law as being an inherent and necessary component of the legislative function of federal and provincial legislatures (so-called "inherent privileges") and was constitutionalized through the preamble of the Constitution Act, 1867, which affirmed that Canada is to have "a Constitution similar in Principle to that of the United Kingdom": see Vaid, at paras. 21, 29(3); Chagnon, at paras. 18, 23; and New Brunswick Broadcasting, at p. 377 S.C.R.

[28] There are, however, some significant differences between parliamentary privilege at the federal and provincial levels, each of which has a different constitutional basis: Vaid, at para. 29. At the federal level, s. 18 of the Constitution Act, 1867 gives Parliament the power to enact laws defining the privileges of the Senate and the House of Commons:

18. The privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada, but so that any Act of the Parliament of Canada defining such privileges, immunities, and powers shall not confer any privileges, immunities, or powers exceeding those at the passing of such Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the members thereof.

[29] Parliament exercised this power under s. 4 of the Parliament of Canada Act, R.S.C. 1985, c. P-1, which defines the privileges of the Senate and House of Commons by reference to the privileges of the U.K. House of Commons in 1867 and allows Parliament to expand those privileges by legislation provided that they do not exceed those of the U.K. House of Commons at the date of the enactment. Section 4 provides:

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.[^2]

[30] In Vaid, the Supreme Court described s. 4 of the Parliament of Canada Act as having "conferred on the Senate and House of Commons the full extent of the privileges permitted under the Constitution": at para. 35. Thus, the "main body" of the parliamentary privileges of Parliament are "legislated privileges" (rather than "inherent privileges") and which, unlike provincial legislative privileges, have an express constitutional underpinning in s. 18 of the Constitution Act, 1867: Vaid, at paras. 36-37; see, also, Boulerice, at paras. 51, 137; and Southam Inc. v. Canada (Attorney General), 1990 CanLII 13006 (FCA), [1990] F.C.J. No. 712, [1990] 3 F.C. 465, 73 D.L.R. (4th) 289 (C.A.), at p. 479 F.C.

(c) Role in the separation of powers

[31] Parliamentary privilege forms an essential part of how Canada's constitutional democracy maintains the fundamental separation of powers between the legislative, executive, and judicial branches of government: Vaid, at para. 21; Chagnon, at para. 21. Parliamentary privilege has been described as a "corollary to the separation of powers" because it helps protect the ability of the Senate, the House of Commons, and the provincial legislative assemblies to perform their constitutionally-assigned functions: British Columbia (Attorney General) v. Provincial Court Judges' Ass'n of British Columbia, [2020] S.C.J. No. 20, 2020 SCC 20, at para. 66.

[32] Parliamentary privilege does so "[b]y shielding some areas of legislative activity from external review" and "[i]t grants the legislative branch of government the autonomy it requires to perform its constitutional functions": Chagnon, at para. 1. The privilege is defined by "the degree of autonomy necessary to perform Parliament's constitutional function": by what is "necessary to protect legislators in the discharge of their legislative and deliberative functions, and the legislative assembly's work in holding the government to account for the conduct of the country's business": Vaid, at para. 41.

(d) Two-step approach to federal parliamentary privilege

[33] The Supreme Court ruled in Vaid that a two-step approach applies when addressing questions of parliamentary privilege at the federal level:

-- At the first step, the court asks whether the existence and scope of the claimed privilege have been authoritatively established, based on either Canadian or British precedent. If the existence and scope of the claimed privilege have been authoritatively established, the privilege must be accepted by the court, without further inquiry into the necessity of the privilege or the merits of its exercise in the particular case: Vaid, at paras. 37, 39; see, also, Boulerice, at paras. 6, 54, 56, 60 and 61.

-- At the second step, the court asks whether the privilege claimed is supported as a matter of principle under a necessity test: the sphere of activity over which privilege is claimed must be "so closely and directly connected with the fulfillment by the assembly or its members of their functions as a legislative and deliberative body . . . 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": Vaid, at para. 46; see, also, Chagnon, at paras. 29, 31.

[34] The claimant of parliamentary privilege has the onus of establishing its existence and scope and, if required, its necessity: Vaid, at paras. 5, 29(8) and 53; Chagnon, at para. 32.

(e) Impact on the court's jurisdiction

[35] Parliamentary privilege is a rule of curial jurisdiction. The effect of a matter falling within the scope of parliamentary privilege is that its exercise cannot be reviewed by any external body, including a court: Vaid, at paras. 29(9), 34; Chagnon, at paras. 19, 24; New Brunswick Broadcasting, at pp. 350, 382-84 S.C.R.; and Boulerice, at para. 54. Parliamentary privilege recognizes "Parliament's exclusive jurisdiction to deal with complaints within its privileged sphere of activity": Vaid, at paras. 4, 29(9) and 30 (emphasis in original); New Brunswick Broadcasting, at pp. 383-84 S.C.R.; and Boulerice, at para. 55. The principles of parliamentary privilege are "a means of distinguishing areas of judicial and legislative body jurisdiction": New Brunswick Broadcasting, at pp. 383-84 S.C.R. Parliamentary privilege thus provides an immunity from judicial review: New Brunswick Broadcasting, at p. 342 S.C.R.

[36] Although the courts have jurisdiction to determine the existence or scope of a claimed privilege, they have no jurisdiction to adjudicate the exercise of any matter falling within the scope of the privilege: Vaid, at paras. 40-41, 47-48; Chagnon, at paras. 2, 32; and New Brunswick Broadcasting, at pp. 350, 384-85 S.C.R.

[37] I now turn to consider Senator Duffy's five grounds of appeal.

Senator Duffy's Grounds of Appeal

(1) Did the motion judge err in ruling that the impugned actions of the Senate fall within the scope of established categories of parliamentary privilege?

[38] Senator Duffy's first ground of appeal contends that the motion judge erred in law by accepting that the actions of the Senate fall within the scope of established categories of parliamentary privilege.

[39] I do not accept this submission. As I will elaborate, I agree with the motion judge that the courts have no jurisdiction to examine the Senate's impugned conduct because of its established parliamentary privileges to discipline its members and administer its internal affairs, and its privileges over parliamentary proceedings and freedom of speech. These four privileges overlap in this case: one or more of them applies to each of Senator Duffy's allegations against the Senate. Cumulatively, they give the Senate immunity from these civil claims.

(a) The Senate's parliamentary privilege to discipline its members

[40] First, the Senate has an established parliamentary privilege to discipline its members.

[41] In Vaid, Binnie J. confirmed that "disciplinary authority over members" is an established category of parliamentary privilege that has "historically been considered to be justified by the exigencies of parliamentary work": at paras. 29(10), 51. At para. 51, Binnie J. cited (among other authorities) Harvey v. New Brunswick (Attorney General), supra, where McLachlin J. (as she then was), concurring with the majority in the result, affirmed that a provincial legislature's power to disqualify from office a member convicted of an illegal practice under provincial elections legislation involves an exercise of parliamentary privilege, and is thus immune from judicial review: Harvey, at paras. 55, 89.

[42] In Harvey, McLachlin J. noted that "[t]he history of the prerogative of Parliament and legislative assemblies to maintain the integrity of their processes by disciplining, purging and disqualifying those who abuse them is as old as Parliament itself": at para. 64. She affirmed the "historic privilege of the legislature to deny membership to those who disqualify themselves by crime, corruption or other misconduct": at para. 74. A matter falling within the scope of this privilege "is a matter for the legislature, not the courts, to determine": at para. 88; see, also, Boulerice, at paras. 95-100.

[43] Applying these principles to this case, I agree with the motion judge that the Senate's acts in investigating Senator Duffy's expenses as a senator, suspending him from the Senate, and taking other disciplinary measures regarding his compensation and benefits, all fall within the scope of the Senate's established parliamentary privilege to discipline its members: at para. 63. The courts therefore have no jurisdiction to review the Senate's grounds for exercising this privilege by investigating and disciplining Senator Duffy.

(b) The Senate's parliamentary privilege to administer its internal affairs

[44] Second, the Senate possesses an established parliamentary privilege to administer its internal affairs, including by deciding how to allocate parliamentary resources for members' allowances and benefits.

[45] In his leading text on parliamentary privilege in Canada, Parliamentary Immunity in Canada, Joseph Maingot, a former law clerk and parliamentary counsel to the House of Commons, writes that "[t]he privilege of control over its own affairs and proceedings is one of the most significant attributes of an independent legislative institution": Maingot, at p. 166.

[46] In Boulerice, released after the motion judge's decision, the Federal Court of Appeal accepted that the parliamentary privilege over internal affairs includes control over the allocation of parliamentary resources for members' allowances and benefits. Noël C.J., writing for the court, ruled that the courts have no jurisdiction to judicially review decisions of the House of Commons' Board of Internal Economy, which had found that certain members of Parliament had misused parliamentary funds and required them to repay those amounts: at para. 6. The Board was created in 1985 under the Parliament of Canada Act to govern "all financial and administrative matters respecting (a) the House of Commons, its premises, its services and its staff; and (b) the members of the House of Commons": Parliament of Canada Act, s. 52.3; Boulerice, at para. 7. It has exclusive authority to opine on whether a member's use of parliamentary funds is proper: Parliament of Canada Act, s. 52.6(1); Boulerice, at para. 11.

[47] Noël C.J. ruled that internal disputes about parliamentary funds are protected by an established category of parliamentary privilege relating to internal affairs, at para. 94:

[T]he House's exclusive right to oversee and decide matters pursuant to internal rules governing the use made of funds and resources provided to Members of the House for the purpose of allowing them to perform their parliamentary functions . . . comes within the established category [of parliamentary privilege] relating to internal affairs.

[48] In so ruling, Noël C.J. canvassed the prior caselaw, including Villeneuve v. Northwest Territories (Legislative Assembly), [2008] N.W.T.J. No. 40, 2008 NWTSC 41 and Filion c. Chagnon, [2016] J.Q. no 18156, 2016 QCCS 6146, affd, [2017] J.Q. no 3883, 2017 QCCA 630, both of which were cited by the motion judge in this case: at paras. 65-68.

[49] In Villeneuve, the Supreme Court of the Northwest Territories held that parliamentary privilege prevented the courts from reviewing whether the Legislative Assembly of the Northwest Territories' Board of Management could withhold statutory allowances from a member of the Legislative Assembly who had made inaccurate statements about his place of residence. This issue was "truly internal to the legislature" and must be "free from review by the courts" in order to allow the legislative assembly to function "free from outside interference . . . as an independent branch of government": at para. 34.

[50] In Filion, the Québec Superior Court held that parliamentary privilege prevented the courts from reviewing the decision of the Québec National Assembly to withhold part of the transitional allowance from a former member of the Assembly whom the Assembly found had claimed illegitimate expenses. The National Assembly's decision was protected by its parliamentary privilege to regulate its internal affairs without outside interference: at para. 22.

[51] I agree with the conclusions in Boulerice, Villeneuve and Filion. These decisions provide compelling persuasive authority supporting the established parliamentary privilege over internal disputes about parliamentary funds.

[52] I also agree with the motion judge's conclusion that the impugned actions of the Senate fall within the scope of this privilege. In my view, the Senate has exclusive jurisdiction to administer its internal affairs in relation to the allocation of parliamentary resources for members' allowances and benefits, including decisions on the propriety of Senator Duffy's expenses.

[53] It follows, therefore, that the courts cannot review the validity of the investigations and reports by the CIBA, even though Senator Duffy alleges political interference with its Twenty-Sixth Report about the propriety of his expenses.

[54] As noted above, the CIBA is an internal parliamentary committee. It is constituted by the Parliament of Canada Act and its composition includes senators appointed by the Leader of the Government in the Senate and the Leader of the Opposition in the Senate: Parliament of Canada Act, s. 19.1(3). The CIBA's functions include acting "on all financial and administrative matters" respecting "the Senate, its premises, its services and its staff" and "the members of the Senate": s. 19.3. It is "subject to the rules, direction and control of the Senate": s. 19.1(4). It has broad authority to make regulations about "the use by senators of funds, goods, services and premises" provided to them "for the carrying out of their parliamentary functions" and the "management of, and accounting for, by senators" of those funds: s. 19.5(1). The CIBA also has "exclusive authority" to determine whether any senator has properly used any resources provided to them for their parliamentary functions: s. 19.6(1).

[55] I agree with the motion judge that, based on the CIBA's statutory mandate, it exercises functions "at the core of the Senate's legislative powers", which are therefore protected by parliamentary privilege, at para. 83:

CIBA's exclusive power to allocate -- and withhold -- parliamentary funds and resources to any given senator is very much at issue in Senator Duffy's lawsuit. That is because its decisions may be critical to a senator's ability to perform their parliamentary functions adequately. In light of this, I conclude that CIBA exercises functions at the core of the Senate's legislative powers.

[56] Finally, I agree with the motion judge's conclusion that Senator Duffy's claim asks the court to second-guess compensation and other financial decisions that "the Senate alone, through the CIBA, has exclusive authority to make": at para. 88. Parliamentary privilege precludes the courts from doing so.

(c) The Senate's parliamentary privilege over parliamentary proceedings

[57] Third, the Senate enjoys an established parliamentary privilege over proceedings before the Senate.

[58] In Vaid, Binnie J. affirmed that parliamentary privilege extends to "control by the Houses of Parliament over 'debates or proceedings in Parliament'", including "day-to-day procedure in the House": at para. 29(10); see, also, Mikisew Cree First Nation v. Canada (Governor General in Council), [2018] 2 S.C.R. 765, [2018] S.C.J. No. 40, 2018 SCC 40, at para. 37; and Boulerice, at paras. 104-108.

[59] The CIBA's work as a Senate committee falls under "proceedings in Parliament". As a "technical parliamentary term, 'proceedings' are the events and steps leading up to some formal action, including a decision, taken by the House in its collective capacity": Maingot, at p. 74, citing C.J. Boulton, ed., Erskine May's Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 21st ed. (London: Butterworth-Heinemann, 1989), at p. 92. The Senate's privilege over "proceedings in Parliament" thus encompasses the CIBA's work in discharging its statutory mandate to act on "all financial and administrative matters" within the Senate. It includes the CIBA's internal investigations about senators' use of parliamentary funds in acting as senators, any report made by the CIBA based on those investigations, and the Senate's decisions on whether or how to respond.

[60] I also agree with Noël C.J.'s observation in Boulerice that "the House's exclusive right to regulate and oversee the use of parliamentary funds by Parliamentarians brings with it the exclusive right to decide how these rules are to be applied": at para. 120. In my view, the Senate enjoys an equivalent privilege.

[61] Senator Duffy's allegations about political interference in the CIBA's investigation and findings and the Senate's response in suspending him all target conduct falling within the established parliamentary privilege over proceedings in Parliament. I therefore agree with the motion judge that the courts have no jurisdiction to evaluate their propriety, fairness, or legality: at para. 92.

(d) The Senate's parliamentary privilege over freedom of speech in the Senate

[62] Finally, the Senate benefits from an established parliamentary privilege over freedom of speech.

[63] The privilege over freedom of speech was recognized as long ago as 1689 in art. 9 of the U.K. Bill of Rights, and was affirmed by Binnie J. in Vaid, at paras. 29(10), 39. In New Brunswick Broadcasting, McLachlin J. stated that the privilege includes "immunity from civil proceedings with respect to any matter arising from the carrying out of the duties of a member of the House" through an "unwritten constitutional right . . . to speak freely in the House without fear of civil reprisal": at p. 385 S.C.R.

[64] The free speech privilege applies not only to speech in the House of Commons and the Senate but also before their respective committees. As noted by Maingot, at p. 31:

Whatever freedom of speech applies in either House of Parliament also applies to committees of either House.

When part of parliamentary business, therefore, whatever is said in the Senate or the House of Commons or in one of the committees is not actionable in the ordinary courts, whether or not it is said in good faith.

(Footnotes omitted)

[65] Persons exercising the privilege of freedom of speech are accountable only to Parliament, as Maingot explains, at pp. 71-72:

While taking part in [proceedings in Parliament], officers of Parliament, Members of Parliament, and the public are immune from being called to account in the courts or elsewhere, save the Houses of Parliament, for any act done or words uttered in the course of participating, however false or malicious the act and however malicious the words might be; and any member of the public prejudicially affected is without redress.

See, also, Ontario v. Rothmans Inc. (2014), 120 O.R. (3d) 467, [2014] O.J. No. 2816, 2014 ONSC 3382, 374 D.L.R. (4th) 175 (S.C.J.), at paras. 9-20; Lavigne v. Ontario (Attorney General) (2008), 2008 CanLII 89825 (ON SC), 91 O.R. (3d) 728, [2008] O.J. No. 2951 (S.C.J.), at paras. 23, 47-55; Gagliano v. Canada (Attorney General), [2005] F.C.J. No. 683, [2005] 3 F.C.R. 555, 2005 FC 576, at paras. 62-97, 108-111, affd, [2006] F.C.J. No. 338, 2006 FCA 86, 268 D.L.R. (4th) 190 (C.A.); Canada (Royal Canadian Mounted Police) v. Canada (Attorney General), [2007] F.C.J. No. 752, [2008] 1 F.C.R. 752, 2007 FC 564, at paras. 63-65; and Prebble v. Television of New Zealand Ltd., [1994] 3 NZLR 1, [1995] 1 A.C. 321 (P.C.), at pp. 332-34 A.C.

[66] The parliamentary privilege of freedom of speech is directly engaged here. I agree with the motion judge that many of Senator Duffy's allegations impugn exercises of free speech before the Senate and the CIBA: at para. 107. This includes, for example, Senator Duffy's challenges to the Senate motion and the vote to suspend him from the Senate without benefits; the Senate's decision to deny his request for reimbursement of his salary, living allowances, and pension accruals withheld while he was suspended, and to claw back funds found to have been inappropriately claimed as Senate expenses; the CIBA's Twenty-Sixth Report as having been politically motivated; and the CIBA's decision to deny his request for partial reimbursement of legal expenses and disbursements incurred in successfully defending the criminal charges against him. All these exercises of free speech in the Senate were part of the Senate's parliamentary business. The courts therefore have no jurisdiction to adjudicate them.

(e) Conclusion

[67] I conclude that the motion judge did not err in ruling that Senator Duffy's allegations against the Senate are protected from judicial review by one or more categories of established parliamentary privilege. I would therefore reject the first ground of appeal.

(2) Did the motion judge err in ruling that parliamentary privilege applies to the Senate's allegedly unlawful conduct?

[68] Senator Duffy's second and principal ground of appeal contends that, quite apart from his argument about the categories of privilege in issue, parliamentary privilege cannot apply because he has alleged that certain senators and the CIBA acted at the unlawful and potentially criminal behest of the PMO. He says that this allegation is supported by the findings of Vaillancourt J. at his criminal trial. As Senator Duffy's counsel stated in oral argument, the allegation is that the CIBA and certain senators followed the PMO's bidding in "lock step", like "marching soldiers".

[69] Senator Duffy also contends that it is fundamental to the rule of law that the courts must be able to review state conduct for illegality, including illegal conduct within the Senate. He says that the motion judge's most significant error was her conclusion that parliamentary privilege "precludes any court from determining whether [the Senate's] decisions were unlawful": at para. 88. In oral argument, Senator Duffy's counsel stated that this finding "defies the notion of the paramountcy of constitutional principles, which include the rule of law". He says that the court's responsibility to uphold the rule of law is logically and legally prior to the categories of parliamentary privilege invoked by the Senate.

[70] This argument was not presented to the motion judge and relies on several new authorities. I do not accept the argument, for the following three reasons.

(a) Justice Vaillancourt did not find criminal conduct by the PMO or the Senate

[71] First, as a factual matter, I note that while Vaillancourt J. described some of the conduct from within the PMO as "unacceptable" and "driven by deceit", he made no findings of criminality against anyone inside the PMO or Senate, because those persons were not on trial: R. v. Duffy, supra, at paras. 1038, 1239.

[72] Arguably, however, the amended statement of claim does allege criminality. It claims that Senator Duffy was "extorted" into agreeing to release a statement that he had claimed amounts in error and that he would pay the amounts back: at para. 36. Elsewhere, the claim alleges illegality that falls short of criminality: it pleads that the "actions of Nigel Wright and the PMO were mindboggling and shocking" and the actions of the Senate and certain senators were "unlawful", but only "in the administrative law sense": at paras. 88, 108.

[73] I will, however, proceed to evaluate Senator Duffy's argument by assuming that it does allege criminal conduct from within the PMO and the Senate.

(b) Even if the claim alleges criminality, parliamentary privilege deprives the courts of jurisdiction to adjudicate Senator Duffy's allegations

[74] Second, even if I assume that the claim alleges criminality, Senator Duffy's argument that parliamentary privilege does not protect criminal conduct within the Senate is cast too broadly. When framed more precisely, the argument cannot defeat the Senate's claim of privilege.

[75] The argument is framed too broadly because nobody disputes that parliamentarians can commit crimes within Parliament and that parliamentary privilege would not necessarily protect them from criminal prosecution. Indeed, this point is confirmed by the prosecution and acquittal of Senator Duffy for alleged criminal conduct. Maingot summarizes the Canadian position as follows, at p.109:

Members of Parliament are amenable to the criminal law except in respect of words spoken or acts done in the transaction of parliamentary business. While a Member of either House may participate in debate with irrelevant remarks and defamatory libel, it is difficult to envisage a criminal act that would fit into or be part of a parliamentary proceeding. Thus, there is "no authority for the proposition that an ordinary crime committed in the House of Commons would be withdrawn from the ordinary course of criminal justice" [quoting Bradlaugh v. Gossett (1884), 12 Q.B.D. 271]. Such act in question would, while not part of a "proceeding in Parliament", have an aspect of contempt of Parliament that would be dealt with by the House, and the criminal aspect would be dealt with by the courts.

(Footnotes omitted)

[76] Binnie J. acknowledged the same principle in Vaid, citing approvingly R. v. Bunting (1885), 7 O.R. 524, [1885] O.J. No. 345 (H.C. (Q.B. Div.)), which accepted that a conspiracy to change the government by bribing members of a provincial legislature can be prosecuted criminally. Binnie J. stated, at para. 43:

[A]s stated in Erskine May (19th ed. 1976), at p. 89, not "everything that is said or done within the Chamber during the transaction of business forms part of proceedings in Parliament. Particular words or acts may be entirely unrelated to any business which is in course of transaction, or is in a more general sense before the House as having been ordered to come before it in due course" [...] Thus in R. v. Bunting (1885), 7 O.R. 524, for example, the Queen's Bench Division held that a conspiracy to bring about a change in the government by bribing members of the provincial legislature was not in any way connected with a proceeding in Parliament and, therefore, the court had jurisdiction to try the offence.

(Emphasis in original)

[77] The following observation of O'Connor J., dissenting, in Bunting, at p. 563 O.R., para. 187, is often quoted in support of the view that parliamentarians can be prosecuted under the criminal law for acts within Parliament that fall outside the scope of their parliamentary business:

I desire it to be understood . . . that I do not hold that a member of Parliament is not amenable to the ordinary [c]ourts for anything he may say or do in Parliament. I merely say he is not so amenable for anything he may say or do within the scope of his duties in the course of parliamentary business, for in such matters he is privileged and protected by lex et consuetudo parliamenti; and for his protection, and the preservation of its own integrity, honour, and efficiency, Parliament has reserved to itself the exclusive privilege and authority to investigate and decide all matters that arise concerning either House thereof.

See, also, Maingot, at pp. 76, 86, 89, 109, 189-190 and 273.

[78] The same proposition was accepted more recently by the U.K. Supreme Court in R. v. Chaytor, [2010] UKSC 52, [2011] 1 All E.R. 805, which held that parliamentary privilege did not deprive the criminal courts of jurisdiction to try former members of Parliament on charges of false accounting of parliamentary expenses. In reasons concurred with by a majority of the court, Lord Rodger explained that the common law has long accepted that prima facie a member of Parliament can be prosecuted before the courts for an "ordinary crime" committed in the House of Commons, such as stealing money from the till in the Members' Dining Room: at para. 121. He noted, at para. 113, that the expression "ordinary crime" appeared in the judgment of Stephen J. in Bradlaugh v. Gossett (1884), 12 Q.B.D. 271, 53 LJQB 209, at p. 283 Q.B.D., in which he said: "I know of no authority for the proposition that an ordinary crime committed in the House of Commons would be withdrawn from the ordinary course of criminal justice." Lord Rodger added that, by contrast, a member could not be prosecuted for a crime such as sedition for saying something during debates in the House, because this would be protected by the parliamentary privilege of freedom of speech: at para. 113. The distinction between what can and cannot be prosecuted under the criminal law, he explained, turns on whether raising the issue in the ordinary courts would call into question decisions taken by the House or one of its committees on a matter intended to be under the exclusive cognizance of the House and its committees: at para. 120.

[79] In view of these authorities, the issue Senator Duffy raises must be framed more precisely. The issue is not whether Senator Duffy has alleged criminal conduct in the Senate. The issue is whether he has alleged an "ordinary crime" in the Senate. Has he impugned conduct connected with a proceeding in Parliament? And would raising these issues in the ordinary courts call into question decisions taken by the Senate and its committees on matters intended to be under the exclusive cognizance of the Senate and its committees?

[80] The conduct that Senator Duffy impugns here is not an "ordinary crime", such as theft. The alleged unlawful or potentially criminal interference by the PMO with the CIBA and the decisions of the Senate are integrally connected with proceedings in Parliament -- the Senate's investigation, deliberations, and decisions regarding Senator Duffy's expenses and benefits as a senator. Raising these issues before the courts would unavoidably call into question the disciplinary and internal decisions taken by the Senate and the CIBA on matters that ordinarily fall within established categories of parliamentary privilege.

[81] I therefore conclude that, even if Senator Duffy has pleaded criminality in his civil action, the courts have no jurisdiction to adjudicate these allegations.

(c) Senator Duffy's "rule of law" argument does not permit the courts to circumvent parliamentary privilege

[82] Third, there is no support for Senator Duffy's contention that the rule of law permits the courts to scrutinize the legality of conduct within Parliament if that conduct is otherwise protected by parliamentary privilege.

[83] Senator Duffy notes that the rule of law is a foundational principle of the Canadian Constitution: see, e.g., Reference re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 S.C.R. 217, [1998] S.C.J. No. 61, at paras. 49-54, 70-78; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, 1997 CanLII 317 (SCC), [1997] 3 S.C.R. 3, [1997] S.C.J. No. 75, at para. 99. He cites several cases in support of his claim that the rule of law allows the courts to review the exercise of a parliamentary privilege even if the privilege otherwise applies: Roncarelli v. Duplessis, 1959 CanLII 50 (SCC), [1959] S.C.R. 121, [1959] S.C.J. No. 1; Canada (Conseil des Ports Nationaux) v. Langelier, 1968 CanLII 51 (SCC), [1969] S.C.R. 60, [1968] S.C.J. No. 80; Roman Corp. v. Hudson's Bay Oil & Gas Co., 1973 CanLII 15 (SCC), [1973] S.C.R. 820, [1973] S.C.J. No. 70; and R (on the application of Miller) v. The Prime Minister, [2019] UKSC 41, [2019] 3 WLR 589.

[84] In my view, none of these cases supports Senator Duffy's position.

[85] In Roncarelli, the Supreme Court held that the Premier of Québec was liable in damages caused by unlawfully directing the revocation of the liquor license of a restaurant owned by a Jehovah's Witness: at pp. 125, 145, 161 and 187. The case addressed the courts' power to review the legality of executive action. It did not address parliamentary privilege.

[86] In Langelier, the Supreme Court cited Roncarelli approvingly and upheld an injunction to stop the National Harbours Board from carrying out works on the St. Lawrence River that property owners claimed injuriously affected their properties: at p. 65. The court rejected the Board's argument that, as an agent of the Crown, it could not be enjoined: at pp. 70-72, 74-75. The case addressed Crown immunity. It did not address parliamentary privilege.

[87] In Roman Corp., the Supreme Court held that a statement of government policy made bona fide by the Prime Minister and a federal minister was not actionable. The statement announced the federal government's intention to enact legislation preventing a change of control of Canadian uranium resources from Canadian to non-Canadian hands. The lower courts had ruled that statements of government policy made in the House of Commons were not actionable partly because of parliamentary privilege. While not disagreeing with this view, the Supreme Court preferred to deal with the appeal on the basis of Crown immunity: at p. 828. Nothing in this decision assists Senator Duffy.

[88] In Miller, the U.K. Supreme Court held that the advice given by the U.K.'s Prime Minister to Her Majesty the Queen that Parliament should be prorogued for five of the eight weeks just before the "Brexit" date of October 31, 2019, when the U.K. was scheduled to leave the European Union, was unlawful. The court stated that "the Prime Minister's action had the effect of frustrating or preventing the constitutional role of Parliament in holding the Government to account": at para. 55. The court also rejected the argument that parliamentary privilege prevented the courts from considering the validity of the prorogation itself. It held that prorogation is not a "proceeding in Parliament", because it is not part of the "core or essential business of Parliament", but rather "brings that core or essential business of Parliament to an end": at para. 68. Miller thus concerns the justiciability and legality of the exercise of the prerogative power to order a prorogation of Parliament, "a power recognised by the common law and exercised by the Crown": at para. 30. I make no comment on whether courts in Canada would take a similar approach in reviewing the legality of prorogation based on the advice of the Prime Minister of Canada. However, Miller offers no support for Senator Duffy's claim that the courts can review an exercise of parliamentary privilege alleged to be contrary to the rule of law.

[89] Thus, I conclude that Senator Duffy's "rule of law" argument cannot defeat the Senate's parliamentary privilege.

[90] I hasten to add that this conclusion does not imply that parliamentary privilege is anathema to the rule of law. To the contrary: "[p]arliamentary privilege does not create a gap in the general public law of Canada but is an important part of it": Vaid, at para. 29(3).

[91] Nor does this leave Senator Duffy without remedies. Instead, he must pursue his remedies before the Senate, which has its own power of judicature according to its own rules: see Vaid, at paras. 20, 29(9) and 30; New Brunswick Broadcasting, at pp. 379, 380 S.C.R.; and Maingot, at pp. 20, 197, 282-285 and 299-304. As noted by Lord Rodger in Chaytor, at para. 105:

The expression, "the High Court of Parliament", makes the point that Parliament has a certain power of judicature -- as do the two Houses in their separate capacities. In exercising this jurisdiction the Houses apply the law and custom of Parliament (lex et consuetudo parliamenti).

[92] Finally, this conclusion does not absolve the Senate of accountability for its actions. This is because "while legislative assemblies are not accountable to the courts for the ways in which they exercise their parliamentary privileges, they remain accountable to the electorate": Chagnon, at para. 24, citing Steven R. Chaplin, "House of Commons v. Vaid: Parliamentary Privilege and the Constitutional Imperative of the Independence of Parliament" (2009), 2 J.P.P.L. 153, at p. 164.

[93] I would therefore reject Senator Duffy's second ground of appeal.

(3) Did the motion judge err in failing to address the necessity of the categories of parliamentary privilege claimed?

[94] Senator Duffy's third ground of appeal asserts that the motion judge erred in concluding that the Senate need not establish the necessity of the four categories of parliamentary privilege it invoked. Senator Duffy's factum before this court contends that "[e]ven if a certain area has historically been considered subject to parliamentary privilege, it must be shown that it continues to be necessary to the independent functioning of the legislative body". Senator Duffy claims that "the necessity test applies even to previously recognized categories of privilege".

[95] In support of this argument, Senator Duffy relies on the following comments of Karakatsanis J. in Chagnon, at para. 31, which he says confirm that the two-step approach in Vaid no longer applies when evaluating the existence of parliamentary privilege at the federal level:

. . . [G]iven its rationale, the necessity of a privilege must be assessed in the contemporary context. Even if a certain area has historically been considered subject to parliamentary privilege, it may only continue to be so if it remains necessary to the independent functioning of our legislative bodies today (New Brunswick Broadcasting, at p. 387; see also Vaid, at para. 29(6)).

[96] Recall that under Vaid's two-step approach, the court asks, at step one, whether the privilege has been authoritatively established based on Canadian or British precedent, and if so, no further inquiry into the necessity of the privilege is required. At step two, the court asks whether the privilege is supported as a matter of principle under the necessity test: see above, at para. 33.

[97] I do not agree with Senator Duffy's contention that all claims of federal parliamentary privilege must now meet the necessity test.

[98] I begin by recalling Binnie J.'s explanation in Vaid, at para. 37, that parliamentary privilege is approached differently at the federal and provincial levels because the constitutional underpinning of the privilege is different at each level:

. . . [T]he 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. This result contrasts with the situation in the provinces where legislated privilege, without any underpinning similar to s. 18 of the Constitution Act, 1867, would likely have to meet the necessity test (Harvey, at para. 73).

(Emphasis added)

[99] Step one -- whether the privilege is authoritatively established by British or Canadian precedent -- applies to parliamentary privilege at the federal level but not to legislated parliamentary privilege at the provincial level because s. 18 of the Constitution Act, 1867 authorizes Parliament to enact laws defining the privileges of the Senate and the House of Commons. Parliament has done so through s. 4 of the Parliament of Canada Act by defining those privileges by reference to the privileges of the House of Commons in the United Kingdom. There is thus no need to inquire into the necessity of federal parliamentary privileges -- the "main body" of which are legislated -- because the constitutional status of those privileges has been put beyond question by express constitutional and legislative enactments in s. 18 of the Constitution Act, 1867 and s. 4 of the Parliament of Canada Act: Vaid, at para. 36. This is not true of legislated parliamentary privileges at the provincial level, which would likely have to meet the necessity test.

[100] Binnie J. also explained in Vaid that inherent parliamentary privileges at the provincial level must always meet the necessity test, at para. 29(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 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.

(Underlining in original; italics added)

[101] Lastly, while Binnie J. left open the possibility that certain inherent or legislated privileges at the federal level "would fall to be assessed under the 'necessity' test defined by the exigencies and circumstances of our own Parliament", he stated that "[t]his point would have to be explored if and when it arises for decision": Vaid, at para. 38.

[102] To summarize the direction from Vaid: (1) at the federal level, the two-step approach applies to both legislated and inherent parliamentary privilege; (2) at the provincial level, inherent parliamentary privilege must always meet the necessity test, while a legislated parliamentary privilege would likely have to do so.

[103] Like the Federal Court of Appeal in Boulerice, at para. 74, I do not read Chagnon as having displaced "the orthodoxy in Vaid that when a legislated parliamentary privilege is shown to fit within an established category, necessity cannot be revisited". I say this for two reasons.

[104] First, Chagnon addressed provincial rather than federal parliamentary privilege. The court's focus was therefore on establishing the necessity of the inherent provincial privilege claimed to dismiss the security guards employed by the National Assembly of Québec, a privilege that the court held had not been established: Chagnon, at para. 4; see, also, Boulerice, at para. 72.

[105] Second, nothing in Chagnon suggests or even hints that the Supreme Court intended to overrule Vaid by eliminating the first step of Vaid's two-step approach to federal parliamentary privilege. Chagnon addressed only the scope of the inherent provincial parliamentary privilege of the National Assembly of Québec: at paras. 16, 43-44 and 56.

[106] I would therefore reject Senator Duffy's argument that the motion judge erred by not addressing the necessity of the four categories of parliamentary privilege invoked by the Senate.

[107] In any event, if it were necessary to decide the point, I would conclude that each of these four categories of parliamentary privilege continues to meet the necessity test. The established privileges of discipline of members, control over internal affairs and parliamentary proceedings, and freedom of speech are all deeply rooted in the history of parliamentary privilege. Each privilege helps preserve the Senate's independence and promotes the workings of representative democracy. They allow the Senate to proceed fearlessly and without outside interference in discharging its constitutional role in "enacting legislation and acting as a check on executive power": Chagnon, at para. 23; New Brunswick Broadcasting, at p. 354 S.C.R.; and Vaid, at paras. 21, 41. If the courts could be asked to adjudicate the Senate's day-to-day administration of these matters, the Senate's autonomy as a legislative body and its freedom to do its legislative work with "dignity and efficiency" would be undermined: see Chagnon, at para. 23; Vaid, at paras. 29(4)-(8); and Boulerice, at paras. 123-26.

[108] I would therefore reject Senator Duffy's third ground of appeal.

(4) Did the motion judge err by failing to reconcile the Senate's parliamentary privilege with the Charter?

[109] Senator Duffy's fourth ground of appeal asserts that the motion judge erred in stating that because the Senate's impugned actions are protected by parliamentary privilege, she could not give "any consideration" to whether those actions "were . . . contrary to Senator Duffy's Charter rights": at para. 14.

[110] I do not accept this argument. The Supreme Court has repeatedly held that where parliamentary privilege applies, the legislative body holding the privilege has the exclusive competence to adjudicate an alleged breach of the Charter.

[111] For example, in Vaid, Binnie J. stated, at para. 30:

One part of the Constitution cannot abrogate another part of the Constitution (Reference re Bill 30, An Act to Amend the Education Act (Ont.), 1987 CanLII 65 (SCC), [1987] 1 S.C.R. 1148; New Brunswick Broadcasting, at pp. 373 and 390. In matters of privilege, it would lie within the exclusive competence of the legislative assembly itself to consider compliance with human rights and civil liberties. The House, "with one voice, accuses, condemns and executes": Stockdale v. Hansard, at p. 1171.

(Emphasis added)

[112] More recently, in Chagnon, Karakatsanis J. stated, at para. 24:

Judicial review of the exercise of parliamentary privilege, even for Charter compliance, would effectively nullify the necessary immunity this doctrine is meant to afford the legislature (New Brunswick Broadcasting, at pp. 350 and 382-84; Vaid, at para. 29(9).

(Emphasis added)

[113] Because I conclude that parliamentary privilege applies to the impugned actions of the Senate, the courts have no jurisdiction to review Senator Duffy's claim that the Senate breached his Charter rights. Any remedy Senator Duffy seeks against the Senate must be pursued with the Senate.

[114] I would therefore reject Senator Duffy's fourth ground of appeal.

(5) Did the motion judge err in ruling that the Senate had not waived its parliamentary privilege?

[115] Senator Duffy's final ground of appeal asserts that the Senate, through its conduct, waived any parliamentary privilege that it may have had. His factum contends that "[g]iven that [the] CIBA referred the matter to the RCMP to investigate and proceed with charges against Senator Duffy, [t]he Senate waived its privilege over the subject matter at issue in this proceeding".

[116] The motion judge cited caselaw accepting that parliamentary privilege can be waived by Parliament itself, but concluded that because parliamentary privilege is a constitutional principle it requires an express waiver by Parliament and cannot be waived implicitly: at paras. 111-13, citing Rothmans, at para. 35 and Canada (Royal Canadian Mounted Police) v. Canada (Attorney General), supra, at para. 81. The motion judge found "no conduct alleged in the statement of claim that would indicate, clearly and unambiguously, that the Senate waived its privilege": at para. 114.

[117] A rare example of Parliament purporting to expressly waive parliamentary privilege was referred to in R. v. Connolly (1891), 22 O.R. 220, [1891] O.J. No. 44 (H.C. (Comm. Pl.)), at pp. 233-34 O.R., where the House of Commons, on a motion of the Minister of Justice, passed a resolution permitting evidence given by witnesses who testified before a parliamentary committee to be used in criminal prosecutions against them: see, also, Maingot, at pp. 109-110; Rothmans, at para. 21, footnote 27.

[118] Yet in Boulerice, at para. 127, Noël C.J. mooted whether, as a matter of constitutional principle, parliamentary privilege can ever be waived:

Arguably, a privilege which ensures the independence of the House in performing core legislative functions cannot be waived by Parliament as doing so would undermine the very principle on which the Westminster model of Parliament is based.

[119] In Boulerice, the Federal Court of Appeal did not resolve this question because it concluded that nothing in the legislation in the case before it suggested that Parliament intended to waive or abandon any of its privileges: at para. 130.

[120] Support for the issue mooted in Boulerice might be found in the remarks of McLachlin J. in New Brunswick Broadcasting, at p. 379 S.C.R., when she noted that parliamentary privileges "must be held absolutely and constitutionally if they are to be effective" (emphasis added).

[121] On the other hand, it could be argued that because s. 18 of the Constitution Act, 1867 gives Parliament the legislative authority to "define" the Senate's parliamentary privileges through federal legislation, it could choose to define its privileges more narrowly, such as by waiving its privilege in a particular case.

[122] Even if parliamentary privilege can be waived -- which I believe need not be decided in this case -- I would conclude that because of the institutional and constitutional character of parliamentary privilege, any waiver would require an express statement, either in legislation or possibly in a parliamentary resolution, that clearly and unambiguously waives the privilege.

[123] I agree with the motion judge that Senator Duffy's amended statement of claim pleads no express, clear and unambiguous waiver by the Senate of its parliamentary privilege. I would also find that merely referring the matter to the RCMP for criminal investigation in this case would not meet the required standard for waiver of parliamentary privilege. The Senate should be able to refer matters to the appropriate authorities for criminal investigation without fear that doing so will jeopardize its constitutional independence from the other branches of government.

[124] I would therefore reject Senator Duffy's fifth and final ground of appeal.

F. Conclusion

[125] For these reasons, I conclude that Senator Duffy's allegations against the Senate fall within the scope of established categories of parliamentary privilege. The courts therefore lack jurisdiction to adjudicate these allegations. They may be adjudicated only by the Senate itself.

[126] Despite Mr. Greenspon's forceful submissions, I would dismiss the appeal. If the parties cannot resolve the issue of costs, I would order that they may make brief written submissions to the court within 30 days of this decision.

Appeal dismissed.

Notes

[^1] In oral argument, counsel for the Senate advised that when Parliament was dissolved, Senator Duffy was automatically placed on a leave of absence and was paid his salary as a senator in accordance with the Senate's Rules: Senate, Rules of the Senate of Canada (2017), rule 15-4. For the purposes of this appeal, however, I have assumed that the facts pleaded in Senator Duffy's amended statement of claim are true.

[^2] The motion judge interpreted s. 18 of the Constitution Act, 1867 as limiting the privileges of the Senate and the House of Commons to those defined in federal legislation that do not exceed "those held, enjoyed and exercised by the U.K. Parliament and its members in 1867": at para. 26. With respect, I do not read s. 18 of the Constitution Act, 1867 (as amended in 1875) as imposing this temporal limitation. The link to the privileges enjoyed by the U.K. House of Commons in 1867 arises from s. 4(a) of the Parliament of Canada Act; and s. 4(b) of the Parliament of Canada Act allows Parliament to enact legislation expanding the privileges of the Senate and the House of Commons provided that they do not exceed those of the U.K. House of Commons at the time of the enactment: see Maingot, at pp. 19-20; Hogg, at §1.7, p. 1-16; Boulerice, at paras. 57-58; Vaid, at para. 33; and Harvey v. New Brunswick (Attorney General), 1996 CanLII 163 (SCC), [1996] 2 S.C.R. 876, [1996] S.C.J. No. 82, at para. 66.