Court File and Parties

Court File No.: Ottawa, East Region 14-30299

Ontario Court of Justice

Between:

Her Majesty the Queen

— And —

Michael Dennis Duffy

Before: Justice Charles H. Vaillancourt

Heard on: June 11 and 12, 2015

Reasons for Ruling released to counsel: November 13, 2015

Reasons for Ruling released in court: November 19, 2015

Counsel

Maxime Faille and Guy Regimbald — counsel for the Senate/Respondent

Peter Doody and Natalia Rodriquez — counsel for the accused Michael Dennis Duffy/Applicant

Peter Jacobson, Tae Mee Park and Andrew W. MacDonald — counsel for the Interveners, The Globe and Mail Inc., CTV, A Division of Bell Media Inc., Postmedia Network Inc., and Canadian Journalists For Free Expression

VAILLANCOURT J.

RULING ON AN APPLICATION ON BEHALF OF SENATOR DUFFY FOR AN ORDER REQUIRING CHARLES ROBERT, THE CLERK OF THE SENATE, TO PRODUCE CERTAIN DOCUMENTS

(A) THE INTERNAL REPORT REFERRED TO BY JILL ANNE JOSEPH IN HER STATEMENT OF 2013-09-18 ("THE JOSEPH STATEMENT") AT PAGE 7, LINE 18 AS "MY LITTLE REPORT";

(B) THE "INTERNAL AUDIT STUDY" REFERRED TO IN THE STATEMENT OF GARY O'BRIEN DATED 2013-09-18 (THE O'BRIEN STATEMENT) AT PAGE 7, LINE 1;

(C) THE "FULL ORIGINAL AUDIT REPORT" REFERRED TO ON PAGE 35, LINE 23 OF THE O'BRIEN STATEMENT;

(D) THE REPORT REFERRED TO AT PAGE 36, LINE 18 OF THE O'BRIEN STATEMENT; AND

(E) "JILL ANNE'S INTERNAL AUDIT" REFERRED TO ON PAGE 37 AT LINES 21-25 OF THE O'BRIEN STATEMENT.

Counsels' Positions as to the Admissibility of the Document Requested

1The document sought in this Application is the Internal Audit Report prepared by Jill Anne Joseph dealing with the Senate policy on expenses of Senators and Senator Duffy's expense claims.

2Counsel for the Senate takes the position that the material sought to be produced is protected by Senate/Parliamentary privilege and should not be produced.

3Counsel for the Applicant maintains that the document in question is not protected by Parliamentary privilege because (i) the right to keep reports about claims for allowances and expenses confidential is not within the recognized scope of any category of parliamentary privilege and (ii) the right to keep reports about claims for allowances and expenses confidential is not necessary to allow the Senate to carry out its constitutional function.

4Counsel for the Applicant, Senator Duffy, argues that even if parliamentary privilege would allow the Senate to keep Jill Anne Joseph's Internal Audit Report confidential, the Senate has waived such privilege.

5The Interveners argue that the scope of any parliamentary privilege, including that asserted by the Senate in this case, must be delineated in a manner that strictly reflects the core legislative and deliberative functions of legislators as representatives of, and holding duties to, the broader public. The Interveners submit that this exercise must take into account the importance of freedom of expression and openness, and the public interest in and right to transparent and accountable public institutions in a constitutional democracy.

Overview

6The Senate is claiming parliamentary privilege under the following categories: (1) freedom of speech; (2) exclusive cognizance of and control over debates and proceedings; (3) control by the Houses of Parliament over their internal affairs; and (4) disciplinary authority over its members.

7Furthermore, the Senate contends that the aforementioned categories of privilege include the right to hold Senate proceedings in camera, control over documents in its possession, and the protection of its members and officers from giving evidence about a parliamentary proceeding.

8Counsel for the Senate directed the court to Justice Binnie's decision in Canada (House of Commons) v. Vaid, [2005] 1 S.C.R. 667, 2005 SCC 30 at para. 4 wherein he wrote that:

There are few issues as important to our constitutional equilibrium as the relationship between the legislature and the other branches of the State on which the Constitution has conferred powers, namely the executive and the courts.

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.

9On behalf of the Senate, Mr. Faille notes that the aforementioned constitutional equilibrium and respect for the role of each branch of government requires the adherence to the principle of parliamentary privilege.

10J. P. Maingot in his text, Parliamentary Privilege in Canada, 2nd ed. (Montreal: McGill-Queen's Press, 1997) at p. 183 observes that Canadian and other Commonwealth courts have consistently held that parliamentary privilege includes "[t]he right to control publication of its debates and proceedings and those of its committees by prohibiting their publication."

11It is also submitted that parliamentary privilege applies to evidence presented in committee. See: Gagliano v. Canada 2005 FC 576, [2005] 3 F.C.R. 555; Lavigne v. Ontario (Attorney General), 2008 CanLII 89825 (ON SC), 91 O.R. (3d) 728

12Parliament may and does deliberate in camera and such a decision is protected by privilege and is not subject to review or reversal by the judicial or executive branches of government. See: Lavigne, supra.

13Mr. Faille submits that the aforementioned privileges have been repeatedly and authoritatively established in the case law and that they are enshrined in both the constitutional and statutory law. He also takes the position that "necessity" of such privilege need not be proven See: Vaid, supra, and that in any event there is ample evidence to address the issue of "necessity".

14Mr. Faille concludes that the Application before this court must fail and that the Lavigne case is a complete answer to the issue at bar.

15In Lavigne, supra, Senator Lavigne was charged under the Criminal Code for offences involving the improper use of Senate resources. He attempted to compel the production of evidence presented at an in camera hearing of the Subcommittee of the Standing Committee on Internal, Budgets and Administration.

16At paragraph 48 of Lavigne, supra, the court concluded that:

My role is simply to make a finding as to whether or not the claimed parliamentary privilege exists. If I find there is a parliamentary privilege, as I do in this case, it is not for me to determine how it should be applied in the particular case. The decisions in Vaid, supra, (p. 681 S.C.R.) and New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), 1993 CanLII 153 (SCC), [1993] 1 S.C.R. 319 at p. 389 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.

17Mr. Faille states that the document sought in this Application, namely an internal report presented to a subcommittee of the Senate Standing Committee of Internal Economy, Budgets and Administration falls squarely under parliamentary privilege.

18Mr. Faille further submits that the Applicant's memorandum of argument suggests a fundamental miscomprehension as to the nature of parliamentary privilege and erroneously conflates it with other forms of privilege. He notes that the Applicant's great reliance on assertions that many other documents are public or have been provided or disclosed in the context of these proceedings has no bearing on the assertion and existence of privilege in regard to the document at issue. Mr. Faille maintains that contrary to other forms of privilege, parliamentary privilege operates regardless of whether a document or testimony is otherwise available. See: Gagliano v. Canada, supra, Canada (Deputy Commissioner, Royal Canadian Mounted Police) v. Canada (Commissioner Royal Canadian Mounted Police) (F.C.) aka George et al [2008] 1 F.R.C. 752; 2007 FC 564 (CanLII), [2007] F.C.J. No. 752

19Counsel for the Senate submits that Parliament retains exclusive authority whether to exercise the assertion of privilege. He maintains that the courts have the authority to determine whether parliamentary privilege attaches but lack the jurisdiction to review its exercise in a given case, see: Vaid, supra. Thus, any alleged "inconsistent assertion of the privilege is irrelevant."

20Mr. Faille disagrees with any suggestion by the Applicant that parliamentary privilege has been waived in any way. He further submits that it is well-established that parliamentary privilege is constitutional in nature and may only be waived by constitutional enactment by Parliament itself, using clear and unambiguous terms. Also, Mr. Faille takes the position that neither the Senate nor its members or officers at any time purported to waive privilege in regard to the document at issue. The document has not been part of the disclosure to either Crown or defence.

21Mr. Doody, on Senator Duffy's behalf, notes that after the Senate requested the police to investigate Senator Duffy's expense accounts, it produced numerous internal records to the authorities. In addition, the Speaker of the Senate publicly announced that the Senate was committed to transparency and accountability about allowances and expenses.

22However, counsel observes that Ms. Joseph's internal audit report involving Senator Duffy has "never seen the light of day" and that the Applicant herein has been denied access to this material based on the Senate's claim of parliamentary privilege.

23Mr. Doody argues that no category of parliamentary privilege allows the Senate to keep the report in question secret since it does not go to the Senate's core constitutional duties of legislating and holding the government to account. Counsel further contends that even if there was a category of parliamentary privilege in play, the Senate has waived such privilege both expressly and impliedly.

24Counsel for Senator Duffy stresses that Ms. Joseph's "little report" should be provided to Senator Duffy to assist in his defence based on the principle of fundamental fairness.

25I have granted the media status as Interveners in this Application.

26The Interveners' focus in this Application is on the question of the existence, scope and purpose of parliamentary privileges.

27Counsel for the Interveners seeks to advance the argument that the scope of any parliamentary privilege, including that asserted by the Senate in the case at bar, must be delineated in a manner that strictly reflects the core legislative and deliberative functions of legislators, as representatives of and holding duties to the broader public. In the Interveners' submission, this exercise must take into account the importance of freedom of expression and openness, and the public interest in and right to transparent and accountable public institutions in a constitutional democracy.

28The Interveners further submit that when the court is determining the issue of the Senate's claim of privilege, any analysis should include and reflect the evolution of modern values and expectations of Canadians.

29Mr. Faille, on behalf of the Senate, is rather dismissive of the Interveners' position. He maintains that contrary to what the Interveners' view of what the law ought to be, the law is clear as to what parliamentary privilege is and that parliamentary privilege applies in this case.

30Mr. Faille states that the Charter may not be invoked to defeat parliamentary privilege: privilege is enshrined in the constitution, and one part of the constitution may not abrogate another. See: 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, supra, at pp. 373 and 390.

31Mr. Faille concedes that the Supreme Court has stated that the Charter may be invoked in the event of a "conflict" between the privilege and the Charter arising from an ambiguity as to the existence or scope of the privilege. However, here, as in the case of New Brunswick Broadcasting, there is no ambiguity, and therefore no "conflict" between the privileges and the Charter, and the Charter values cannot provide any limit to the Senate's powers to invoke them. See: Harvey v. New Brunswick (Attorney General), 1996 CanLII 163 (SCC), [1996] 2 S.C.R. 876 at paras. 69, 71, 74.

32As held in Lavigne, supra, at paras. 56-59, a Charter right such as the right to make full answer and defence cannot be used to displace parliamentary privilege.

33Mr. Faille submits that academic commentary, investigations, policy analysis or recommendations for reform of parliamentary privilege cannot be invoked to displace, amend or alter parliamentary privilege. Privilege may only be waived, revoked or amended by constitutional enactment, using clear and unambiguous language. See: Canada (House of Commons) v. Vaid, supra; Duke of Newcastle v. Morris (1870), L.R. 4 H.L. 661; and New Brunswick Broadcasting Company, supra, at p.109; Fielding v. Thomas, [1896] A.C. 600 (C.P.); P.W. Hogg, Constitutional Law of Canada, looseleaf ed., Toronto, Carswell, at p. 1-1, 1-4.

34Counsel for the Senate notes that courts have repeatedly stated that the privilege operates to preclude "what is said in Parliament from being the subject matter of investigation or submission." See: Prebble v. Television New Zealand Ltd., [1995] 1 A.C. 321 at p. 333. Mr. Faille points out that the order being sought in this case – to compel the production of an internal document presented at an in camera meeting of a committee of the Senate – would have such an effect. If found not to be subject to privilege and ordered produced, the presumption would be that, subject to an enquiry as to relevance and general admissibility, the document could then be tendered as evidence at trial and thereby "be questioned in court."

35Mr. Faille takes the position that the report or document presented to a subcommittee of the Senate in the course of that subcommittee's in camera deliberations is a matter entirely within the Senate's authority and is protected by privilege.

36Mr. Faille likens parliamentary privilege to the qualified privilege enjoyed by journalists to protect their sources and the common law defence of "responsible journalism". See: R. v. National Post, 2010 SCC 16 (CanLII), [2010] 1 S.C.R. 477; Grant v. Torstar Corp., [2009] 3 S.C.R. 640, 2009 SCC 61.

The Facts

37The Senate embarked upon an investigation and review of several Senators in connection with their expenditures pursuant to the Senate's jurisdiction regarding the conduct of its members and its internal affairs.

38The Senate conducted both public and in camera deliberations.

39The document at issue was presented as part of an in camera meeting of the Audit Subcommittee of the Standing Committee on Internal Economy, Budgets and Administration, as part of its proceedings leading to the Nineteenth Report of the Standing Committee, presented on February 28, 2013. Ms. Joseph acted as clerk to the said Subcommittee and presented the document in question to the Committee in the course of its proceedings.

40In due course, Senator Duffy was suspended by the Senate.

41Senator Duffy was subsequently charged on July 17, 2014 with multiple counts of fraud and breach of trust under the Criminal Code of Canada.

42As a result of being charged, Senator Duffy wrote to Gary O'Brien, then Clerk of the Senate, on December 3, 2014 requesting a number of documents including the subject document in this application.

43The subject document was not provided and on March 16, 2015, Mr. Faille, counsel for the Senate, wrote to Senator Duffy's lawyer, Mr. Donald Bayne, and advised him that the document in question would not be provided, "as [it] was subject to the constitutionally-protected law of parliamentary privilege."

44Subsequently, a subpoena to a witness, namely, Charles Robert, Clerk of the Senate, dated May 1, 2015 was served on May 4, 2015 requesting the subject document.

45Attached to the aforementioned subpoena, were transcripts from the police statements provided by Jill Anne Pickard-Joseph (Joseph) and then, Clerk of the Senate, Gary O'Brien.

46Ms. Joseph has had various roles while employed by the Senate over the years.

47Ms. Joseph, in her capacity as Director of Internal Audit and Strategic Planning of the Senate, was eventually tasked with preparing a draft report with respect to Senator Duffy expenses.

48Ms. Joseph indicated that her report and "little arguments didn't go very far" when she presented them to the Audit Subcommittee. Furthermore, Ms. Joseph made it clear that her "little report" was not met with favour.

49When questioned by the R.C.M.P. on September 18, 2013, Ms. Joseph further opined that there was more concern about managing the report as opposed to addressing the concerns and suggestions contained therein.

50Mr. O'Brien advised the R.C.M.P. in his interview with them, that although he supported Ms. Joseph's internal audit study, it was controversial. Mr. O'Brien stated that Ms. Joseph's report/analysis resulted in great controversy between himself and the Steering Committee. Mr. O'Brien also noted that there seemed to be a concern that this internal audit report would become public despite the fact that it was never the intention of the administration to make it public.

51On behalf of the Applicant, Senator Duffy, Mr. Doody outlines three areas to bolster his position that privilege over Ms. Joseph's audit report involving the expense accounts of Senators is not necessary to the Senate's core constitutional function and that such document(s) are administrative in nature and not legislative.

(a) Many reports dealing with the rules of the Senate relating to expense accounts of senators, including Senator Duffy, including external consultants' reports and internal reports have been produced or are publicly available.

(b) Much evidence already has been heard about the senators' expense accounts and the rules (or lack thereof) about the expense accounts.

(c) The Speaker of the Senate has made a public commitment to transparency relating to the expenditures of senators.

52Furthermore, Mr. Doody maintains, that even if privilege exists, it has been waived by the Senate.

53He relies on the following factors to support the waiver of privilege:

(1) The Twenty-Second Report presented by the Senate Standing Committee on Internal Economy, Budgets and Administration (the "Internal Economy Committee) that included the following recommendation:

That the Senate request that the proper authorities examine the matters dealt with in this report and related information, including Senator Duffy's repayment of $90,172.24 to the Receiver General of Canada, and that the Standing Committee on Internal Economy, Budgets and Administration be authorized to refer such documents, as it considers appropriate, to the proper authorities for the purposes of the investigations.

The aforementioned report as amended was adopted by the Senate.

(2) Subsequently, by letter dated June 7, 2013, Gary O'Brien, Clerk of the Senate, voluntarily disclosed relevant evidence and some reports to the R.C.M.P. stating:

Pursuant to the decision of the Senate on May 30, 2013, the Standing Committee on Internal Economy, Budgets and Administration decided at its meeting of June 6, 2013 to provide you, in addition to the Twenty-Sixth Report, already sent, the following documents which are enclosed on a DVD disk:

1. Declarations of Primary and Secondary residence signed by Senator Duffy;

2. Expense claims related to Living in the NCR submitted by Senator Duffy since his appointment to the Senate signed by Senator Duffy since his appointment to the Senate on January 2, 2009;

3. Report on Senator Duffy's travel claims presented by the Clerk of the Senate to the IEC on May 28, 2013; and

4. Minutes of Proceedings of the Internal Economy Committee meeting of May 28, 2013.

It is noted that some of these documents have never been made public, namely numbers 1 and 2, therefore we would ask that they be kept confidential unless required by law. Also, it is understood that the transmission of these documents should not be construed as a waiver on the Senate's part of its parliamentary privilege.

The documents numbered 1 and 2 have been entered as Exhibits I and 2 respectively in these proceedings and item number 3 was provided to Senator Duffy as part of the Crown's disclosure.

(3) The Senate failed to claim privilege by:

(a) Complying with a Production Order under s. 487.012 of the Criminal Code dated June 26, 2013 as evidenced by Ms. Pichard-Joseph's (Ms. Joseph's) affidavit dated July 11, 2013 wherein she swore that the following items were provided:

(1) Copies of the four documents submitted to the Senate by Senator Mike Duffy, as supporting indicators of where his primary residence is located, consisting of: a driver's licence, provincial health card, information from personal income tax return providing provincial tax information, and a signed statement of where he voted.

(2) Copies of all drafts of the Twenty-Second Report of the Senate of Canada's Standing Committee on Internal Economy, Budgets and Administration.

(b) Some information about Jill Anne Joseph's Internal Audit Report was provided to the R.C.M.P. during interviews by the police in the presence of Senate counsel.

Both Ms. Joseph and Mr. O'Brien gave some information about Ms. Joseph's internal audit report or "her little report" when they were interviewed by the police and the issue of parliamentary privilege was not raised.

(4) Mr. Doody points out that the Senate picks and chooses which documents they claim parliamentary privilege.

More particularly, he highlights that Senator Duffy's letter specifically requesting particulars of Ms. Joseph's internal audit report and the subsequent defence subpoena for this material was met with the claim of parliamentary privilege.

(5) Lastly, counsel for Senator Duffy relies on the fact that no evidence has been filed by the Senate to establish the category of privilege it claims and that its scope extends to the documents at issue other than the affidavit of legal counsel Guy Regimbald sworn May 15, 2015 wherein he swears that:

The Senate is claiming parliamentary privilege under the following categories: (i) Freedom of Speech (ii) exclusive cognizance of and control over the debates and proceedings; (iii) control by Houses of Parliament over their internal affairs; and (iv) disciplinary authority over its members.

The scope of the said categories of privilege includes the right to hold Senate proceedings in camera, control over documents in its possession, and the protection of members and officers from giving evidence about parliamentary proceedings.

54Mr. Jacobsen, on behalf of the Interveners, also raised concerns about the evidentiary record surrounding the report in question.

55I must say I am not impressed with Mr. Faille's sweeping assertion that a lack of an affidavit outlining the facts is of no particular consequence. Undoubtedly, the facts surrounding the preparation of the report can be cobbled together. However, it would have been preferable and more helpful to have a clear and concise affidavit outlining the circumstances of the Joseph Report.

The Law and Argument

The Law of Parliamentary Privilege

56Parliamentary privilege traces its origins to the 16th and 17th centuries in England and was designed to forestall the courts of justice from interfering in the workings of Parliament. See: New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), supra at p. 344.

57An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown, 1689, 1Will. & Mar. Sess. 2 Ch. 2 explicitly withheld certain parliamentary activities from judicial examination.

58Parliamentary privilege has been defined as follows:

Parliamentary privilege is the necessary immunity that the law provides for members of Parliament, and for members of the legislatures of each of the ten provinces and two territories, in order for those legislators to do their legislative work. It is also the necessary immunity that the law provides for anyone while taking part in a proceeding in Parliament or in a legislature. Finally, it is the authority and power of each House of Parliament and each legislature to enforce that immunity. See: Canada (House of Commons) v. Vaid, supra, at para. 29.

59Parliamentary privilege appears in the preamble of the Constitution Act, 1867 and in section 18 of the said Act. The provincial legislatures retain inherent privilege over those powers which are necessary for them to function as legislative bodies, Section 18 of the Constitution Act, 1867 conveys on the Senate and House of Commons (but not the legislatures) the power to legislate their own privileges by statute, as follows:

18. The privileges, immunities and powers to be held, enjoyed and exercised by the Senate and House of Commons, and by the members thereof respectively, shall be as such as are from time to time defined by an Act of 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.

60This provision bestows on the Parliament of Canada the power to make laws determining the extent of the privileges, immunities and the powers of the Senate and of the House of Commons as well as on its respective members. This legislative power is plenary, subject only to the limitation that Parliament cannot confer any privileges, immunities, and powers exceeding those held by the House of Parliament of the United Kingdom in 1867. However, these privileges must be able to evolve and to "adapt to changing circumstances". See: Canada (House of Commons) v. Vaid, supra, at para. 39 and Gagliano v. Canada, supra, at para. 32.

61The Parliament of Canada, pursuant to s. 18 of the Constitution Act, 1867, enacted sections 4 and 5 of the Parliament Act of Canada Act, R.S.C., 1985, c. P-1, providing that the Senate and the House of Commons, as well as their members, enjoy and exercise the like privileges, immunities and powers which were held, enjoyed and exercised by the House of Commons, U.K., in 1867, as well as such other privileges, immunities and powers defined by the Canadian Parliament, not exceeding those above, and that such privileges, immunities and powers are part of the general and public law of Canada to be taken notice of judicially.

62Binnie J. explained in Vaid that:

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 of Commons which are themselves composed of both legislated (including the Bill of Rights,1689) and inherent privileges.

Nevertheless, 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 the 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. See: Canada (House of Commons) v. Vaid, supra, paras. 36-37.

63The significance of section 18 of the Constitution Act, 1867 and section 4 of the Parliament of Canada Act lies in the fact that Parliament enjoys both inherent and statutory privileges, whilst the provincial legislatures may only assert inherent privileges. The practical and legal distinctions in this regard lie primarily in the fact that "necessity" must be proven in regard to inherent privilege that has not been authoritatively established by precedent. Conversely, proof of "necessity" is not required in relation to a statutory privilege that has been authoritatively recognized. As explained in Vaid:

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. See: Canada (House of Commons) v. Vaid, supra, at para. 29 (6).

Categories of privileges that have been authoritatively recognized and their scope

64The role of the courts in relation to parliamentary privilege lies not in reviewing the exercise of the privilege, but in determining whether it attaches in a given case. As held by the Supreme Court in Canada (House of Commons) v. Vaid, supra, at para. 29 (11) and (12):

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. (…) The 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.

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.

65The first step in determining whether or not a parliamentary privilege exists is to ascertain whether the category and scope of the claimed privilege have been authoritatively established in relation to Parliament. See: Canada (House of Commons) v. Vaid, supra, at para. 39 and cited in Lavigne v. Ontario (Attorney General), supra, at para. 23.

66Once 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. See: Canada (House of Commons) v. Vaid, supra, at para. 29 (9).

67In this regard, the Senate asserts the following categories of privilege as relevant to the determination of this matter:

(i) freedom of speech;

(ii) exclusive cognizance of and control by the Houses of Parliament over "debates or proceedings in Parliament";

(iii) control by the Houses of Parliament over their internal affairs;

(iv) disciplinary authority over members.

See: Lavigne v. Ontario (Attorney General), supra, at para.23.

68Each of these categories has been authoritatively established in relation to Parliament. See Canada (House of Commons) v. Vaid, supra: cited in Lavigne v. Ontario (Attorney General), supra, at para. 23.

69The scope of these authoritative categories of privilege have been held to include:

(a) The right to hold Senate proceedings in camera;

(b) Control over documents in its possession, including "the right to control publication of its debates and proceedings and those of its committees by prohibiting their publication"; and

(c) The protection of members, officers and witnesses from giving evidence about a parliamentary proceeding and being subject to cross-examination in regard to evidence given in Parliament.

70"Freedom of speech" includes immunity of members as well as witnesses in deliberations from being subjected to cross-examination in a court of law in relation to statements or evidence presented before a Parliamentary committee or subcommittee. As stated in Prebble, supra, at p. 333, "the courts will not allow any challenge to what is said or done in Parliament … [I]t would be a breach of privilege to allow what is said in Parliament to be the subject matter of investigation or submission."

71The Senate also has exclusive jurisdiction over its debates, including to publish its debates (or to decline to do so), see: New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), supra, at p.385, to release any documents or reports (or not) to the public, the power to exclude strangers from the proceedings (including the decision to proceed in camera), see: New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), supra, at p. 388, and disciplinary authority over members, see: Canada (House of Commons) v. Vaid, supra, para. 29 (10).

72Counsel for the Senate contends that since the disclosure in this case engages each of the aforementioned categories and falls within the Senate's scope, that the Application before the court should be dismissed.

Evidence tendered to a parliamentary committee is protected by privilege

73The requested document, Ms. Jill Anne Joseph's Internal Audit Report, was tendered to the subcommittee of the Senate Standing Committee of Internal Economy, Budgets and Administration.

74The cases of Prebble, supra, and Hamilton v. Al Fayed, [2000] 2 All E.R, 224 (H.L.) from the United Kingdom have recognized that evidence 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.

75At page 334 of Prebble, the following passage is worth noting:

… 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 was 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 wider 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.

76In Gagliano v. Canada, supra, Mr. Justice Tremblay of the Federal Court at paras. 24-28 wrote:

Moreover, the privilege must extend to the use of testimony for the purposes of cross-examination before the Commission. Indeed, although a commission of inquiry does not adjudicate civil rights, its decisions have an impact on witnesses' right to their reputation.

The 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.

Furthermore, if the credibility of a witness can be attacked in a commission of inquiry on the basis of what he stated before a committee of the House of Commons, there is a significant risk of usurping a jurisdiction that belongs solely to the House as well as a risk of contradictory decisions on these questions.

The privilege pertaining to freedom of speech and the privilege allowing the respondent to conduct an inquiry are constitutional. The Supreme Court of Canada has upheld the constitutional status of the parliamentary privileges that have historically been considered necessary. Once a court finds that it is a question that "falls within this necessary sphere of matters" without which the dignity and efficiency of the Assembly cannot be upheld, Parliament's exclusive jurisdiction over it must be recognized.

The privilege pertaining to freedom of speech extends to testimony given before a committee of the respondent and it should not be lifted other than through legislation explicitly to that effect.

77Justice Tremblay further states at para. 72 in Gagliano, supra, that:

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.

78In Canada (Deputy Commissioner, Royal Canadian Mounted Police) v. Canada (Commissioner, Royal Canadian Mounted Police) (F.C.), the Federal Court wrote at para. 70 that:

… 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.

Control over "debates and proceedings in Parliament": parliamentary privilege protects the right of the Senate to deliberate in camera

79It is authoritatively recognized that Parliament has the "right to control and to prohibit the publication of its debates or proceedings" See: Gagliano v. Canada, supra, at para. 72 arising from its authority "to exclude strangers from its proceedings and to debate behind closed doors." See: (supra) J.P. Maingot, Parliamentary Privilege in Canada, 2d ed. at pp. 40-41.

80In common with the other two branches of government, Parliament may, and frequently does, deliberate in camera.

81Its ability to do so is an authoritatively-recognized privilege, and is associated with both the authority of Parliament to exclude strangers: See: New Brunswick Broadcasting, supra, and to control its own deliberative processes.

82In Lavigne, supra, the Ontario Superior Court of Justice dealt with whether it could compel the disclosure of evidence from an in camera Special Senate Subcommittee of the Standing Committee on Internal Economy, Budgets and Administration. The subcommittee had heard witnesses in private for four days regarding Senator Lavigne's alleged improper use of Senate resources.

83The Court concluded that the evidence before the committee was protected by privilege as was the decision by the Senate to hold the meeting in camera. The Court found that it lacked the authority to effectively reverse the Senators' decision to hold hearing in private or to make public what the Senate did not wish to make public.

84Mr. Faille directs the court to paragraph 48 of Lavigne, supra, which is reproduced at para. 16 of these reasons to support his aforementioned position.

85Paragraph 50 of Lavigne is also instructive:

[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.

86Mr. Faille contends that Lavigne is the complete answer to the Application currently before this court.

87The privilege applies not only to the statements by the witnesses but also to documents presented before and reports emanating from a Parliamentary committee. See: A Fraser et al., Beauchesne's Rules & Forms of the House of Commons of Canada, 6th ed. (Toronto: Carswell, 1989 at pp. 23-24.

88In Robert W. Hubbard et al., The Law of Privilege in Canada, (Aurora, Ont.: Canada Law Book, 2006) (loose-leaf, release 21), at p. 6-32 it is noted that the definition of "proceeding in Parliament" has been given a wide definition, to include "everything said or done in either House in the transaction of Parliamentary business."

Parliament has control over its internal affairs, including disciplinary authority over members

89J. P. Maingot in his text, Parliamentary Privilege in Canada, 2nd ed. at page 183 writes that, "The privilege of control over its own affairs and proceedings is one of the most significant attributes of an independent legislative institution."

90Parliament's right to regulate its own affairs and procedures free from interference includes:

(a) The right to enforce discipline on Members;

(b) The right to deliberate and examine witnesses, and to do so in camera;

(c) The right to control publication of its debates and proceedings and those of its committees by prohibiting their publication. See: J.P. Maingot, Parliamentary Privilege in Canada, 2nd ed., supra.

91The aforementioned privileges are all engaged in the case at bar. To the extent that the internal document relates to and arises from the exercise of discipline over a member, it is subject to privilege and is within the exclusive control of the Senate. The document was prepared and tendered in the course of a committee proceeding, which was held in camera. Finally, Parliament has a clear and acknowledged right to publish or decline to publish debates and proceedings and those of its committees.

Necessity need not be proven in regard to established categories of privilege. Even if one were to find that an established category or categories of privilege have not been established, the Senate's claim for parliamentary privilege meets the necessity test in this case.

92Mr. Faille's position is that even if the necessity test must be applied, the privilege claimed is justified to enable the Senate to perform its functions.

93Counsel for the Applicant and Interveners contend that protection of the report sought is "not necessary to the Senate's core constitutional function" as it is "administrative, not legislative."

94Counsel for the Senate is of the view that the aforementioned point of view is too narrow and ignores the broader constitutional role, authorities and functions of Parliament. In addition to the Senate's legislative role, other functions that they are involved in include deliberations, holding government to account, conducting studies and preparing reports, disciplining members, determining qualification of members, governing and managing its internal affairs. These authorities are set out in the Parliament of Canada Act and constitutional convention.

95Counsel for the Senate submits that necessity of the asserted parliamentary privilege must be assessed against all these functions and not merely the act of making laws.

96In this regard, parliamentary privilege is defined in terms of what is necessary to enable Parliament and its members to properly and effectively discharge all of their constitutional functions. 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. As stated in Vaid, supra, at paragraph 46:

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.

97There are a number of justifications for providing immunity for the evidence of a witness before a parliamentary committee. Even if witnesses appearing before a parliamentary committee are not members of Parliament, 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. See: Gagliano v. Canada, supra, at para. 77; Canada (Deputy Commissioner) v. Canada (Deputy Commissioner, Royal Canadian Mounted Police Royal Canadian Mounted Police) at para. 63; Ontario v. Rothmans 2014 ONSC 3382; J.P. Maingot, Parliamentary Privilege in Canada, 2nd ed., supra, at pp. 36-37; A. Fraser et al., Beauchesne's Rules and Forms of the House of Commons of Canada, 6th ed. supra, at pp. 27-28.

98This position finds support in the history of privilege, as noted in Stockdale v. Hansard, (1839) 112 E.R. 1112 (Q.B.) at p. 1191: "whatever is done or said in either House should not be liable to examination elsewhere" and in Prebble v. Television New Zealand Ltd., which explains the fundamental importance of Parliament as the "grand inquest of the nation."

99If 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 (See: Prebble) because witnesses would be less inclined to speak. It is therefore essential that members and witnesses not be prevented from speaking fully and freely. See: Gagliano v. Canada, supra, at para. 83; Canada (Deputy Commissioner, Royal Canadian Mounted Police) v. Commissioner, Royal Canadian Mounted Police, supra at para. 63.

100The right to deliberate in camera performs the necessary function of allowing freedom of expression of members and witnesses.

101Notwithstanding the importance of transparency in a free and democratic society, the law recognizes numerous exceptions to the "right to know principle" including:

(a) Solicitor-client privilege protecting the relationship between a lawyer and client;

(b) "Quality assurance" privilege in the medical field that allows medical practitioners to freely discuss and learn from mistakes in order to avoid their repetition without fear of admitting civil liability (See: Steep v. Scott 2002 CanLII 53248 (ON SC), [2002] O.J. No. 4546);

(c) The "confidential source" privilege enjoyed by journalists that may be established, on a case-by-case basis, applying the Wigmore test: See: R. v. National Post, 2010 SCC 16 (CanLII), [2010] 1 S.C.R. 477.

102Similarly, Parliament is not alone among the branches of government in maintaining a protective sphere of private deliberation. Both the judiciary and the executive similarly maintain in camera privileges.

103In Canadian Council of Christian Charities v. Canada (Minister of Finance), 1999 CanLII 8293(FC), [1999] 4 F.C. 245, F.C.J. No. 771 (T.D.), at para. 31, the Federal Court held:

It would be an intolerable burden to force ministers and their advisors to disclose to public scrutiny the internal evolution of the policies ultimately adopted. Disclosure of such material would often reveal that the policy-making process included false starts, blind alleys, wrong turns, changes of mind, the solicitation and rejection of advice, and the re-evaluation of priorities and the re-weighing of the relative importance of the relevant factors as a problem is studied more closely. In the hands of journalists or political opponents this is a combustible material liable to fuel a fire that could quickly destroy governmental credibility and effectiveness.

104In Mackeigan v. Hickman, 1989 CanLII 40 (SCC), [1989] 2 S.C.R. 796, at pp. 830-31,

The judge's right to refuse to answer to the executive or legislative branches of government or their appointees as to how and why the judge arrived at a particular judicial conclusion is essential to the personal independence of the judge, one of the two main aspects of judicial independence: Valente v. The Queen, supra; Beauregard v. Canada … To entertain the demand that a judge testify before a civil body, an emanation of the legislature or executive, on how or why he or she made his or her decision would be to strike at the most sacrosanct core of judicial independence.

105Notwithstanding the assertions of the Applicant herein, the question of necessity is not a matter of evidence. Although it would have been helpful, ultimately I agree with Mr. Faille that the lack of an affidavit is of no consequence here. Whether an officer or Member of Parliament states that a privilege is necessary does not make it so and is not binding on the court. "Necessity" is a matter of legal argument, not an evidentiary contest.

The Applicability of the case of R. v. Chaytor and Others, [2010] UKSC 52

106The Applicant relies on the UK Supreme Court case of Chaytor and Others, (supra) and submits that parliamentary privilege does not apply to claims for allowances and expenses. Furthermore, the Applicant submits that the administrative process to administer those claims for allowances and expenses are not "proceedings in Parliament" as understood under article 9 of the Bill of Rights, 1689.

107Counsel for the Senate takes the position that this case has no bearing on the instant matter and does not assist the position of the Applicant. In Chaytor, the Members of Parliament and the House of Lords who sought to rely on article 9 of the Bill of Rights, 1689 and on parliamentary privilege, arguing that the claims for expenses were a proceeding of Parliament subject to privilege. If they had been successful, they would not have been subject to criminal liability. The equivalent in our case would be if Senator Duffy were to have argued that parliamentary privilege operated to immunize him in relation to any expense claims he submitted.

108Such an argument was rejected in Chaytor. The Supreme Court noted that criminal activity was not protected by privilege. Similarly, in Canada, the courts have recognized the ability of the police to investigate and bring charges in relation to wrongful expenditures or uses of funds by a Parliamentarian, in addition or in parallel to Parliament's exclusive authority to investigate such matters and institute disciplinary measures. See: Canada (Deputy Commissioner, Royal Canadian Mounted Police) v. Canada (Commissioner, Royal Canadian Mounted Police), supra.

109In this case involving Senator Duffy, the Senate is not claiming privilege in relation to expense claims and is not suggesting that its members are immune from criminal liability for making improper claims. Its position is opposite to the position taken by the Members and Lords in Chaytor and consistent with that of the court in that case.

110Lord Rodger distinguished between the legislative, deliberative privileges of the House and the "ordinary crimes" at issue at para. 122 of Chaytor thusly:

Similarly, in the present case, the appellant's alleged conduct could well be regarded as an affront to the system of Members' allowances established by the House – and, so, as a contempt of the House, which the House could punish in the exercise of its power of judicature. But even though the alleged offences presuppose the existence of the allowances system, nothing in the particulars in the indictments indicates, or even suggests, that the prosecution of the charges would raise any issue as to decisions of the House or of its Committees, or of any officers or employees acting on their behalf, as to the system or its operation. Nor would the prosecution touch on any other core activities of Members of the House which the privilege of exclusive cognizance exists to protect – their right, for example, to debate, to speak, to vote, to give notice of a motion, to present a petition, to serve on a committee, and to present a report to the House. In short, there is nothing in the allegations against the appellants which relates in any way to the legislative or deliberative processes of the House of Commons or of its Members, however widely construed. The charges against the appellants are simply charges that they have committed the "ordinary crime" of false accounting in circumstances where, it so happens, the allegedly misleading information was furnished to the Fees Office of the House of Commons. The allowances system merely provides the setting for the alleged offences, which are "ordinary" crimes. Therefore they can be prosecuted in the Crown Court. Again, the potential jurisdiction of the House in contempt is an overlapping, not an exclusive, jurisdiction.

111In this case, the Applicant is not seeking the protection of parliamentary privilege to obtain a stay, but rather he is seeking to obtain a document produced by a witness before a subcommittee of the Senate.

112It is also of significant that, in the United Kingdom, Parliament elected to establish an arm's-length body to administer claims in 2009, in the form of the Independent Parliamentary Standards Authority, outside the control of Parliament.

113Contrary to the assertion of the Applicant, the Senate has not followed this model.

114Sections 19.1 through 19.9 of the Parliament Act of Canada, R.S.C., 1985, c. P-1, address the Internal Administration of the Senate.

115Sections 19.1(1) and 19.1(4) read as follows:

19.1(1) In this section and sections 19.2 to 19.9."Committee" means the Standing Senate Committee on Economy, Budgets and Administration established by the Senate under its rules.

19.1(4) In exercising its functions and powers under this Act, the Committee is subject to the rules, directions and control of the Senate.

The fact that certain documents were provided, or are public, is irrelevant.

116Counsel for the Senate takes issue with any suggestion by the Applicant that parliamentary privilege should not be found to exist with respect to the Jill Anne Joseph Audit Report because a variety of other Senate documents are public and/or have been provided to the Applicant or the Crown. The law is definitive in this regard: unlike other forms of privilege, the fact that a document is public or publically available, has no bearing on whether parliamentary privilege attaches to it. See: Gagliano, supra.

117The Senate is allowed to control the publication (or not) of its debates, see: New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), supra, at p. 385, in Hansard or on a website, and make reports public. The publication or production of a document does not negate parliamentary privilege.

118In Gagliano, supra, for instance, the testimony that was sought to be used for cross-examination of a witness was fully public; the testimony at issue had been open to the public and broadcast on television. This did not have the effect of unhinging the testimony from the moorings of privilege.

119Similarly, it is of no consequence that certain documents, referenced by the Applicant, were provided by the Senate to the defence or to the Crown. Mr. Faille concedes that nearly all the documents referenced in the Applicant's factum are not subject to parliamentary privilege and in particular expense claims and like documents.

120However, other documents such as Committee reports are covered by parliamentary privilege. Other material may not be as clearly characterized one way or the other.

121The bottom line remains that whether privilege does or does not attach to one document is not determinative as to whether privilege attaches to the document at issue in this Application.

The Senate did not waive its privilege

122The Applicant asserts that the privilege that might otherwise attach to the document has been waived. Counsel for the Senate submits that there is no basis for this assertion.

123Mr. P. Doody, on behalf of Senator Duffy, directs the court to the case of Ontario v. Rothman's Inc., 2014 ONSC 3382, [2014] O.J. No. 2816 at para. 21 wherein the court notes that:

The parties acknowledge that parliamentary privilege can be waived. However, the privilege belongs to Parliament and therefore it is up to Parliament – not the person who made the statement – to decide whether privilege is to be waived in a particular case.

124It is the position of the Applicant that by adopting the report from the Internal Economy Committee that the "Senate request that the proper authorities examine the matters dealt with in this report and related information, including Senator Duffy's repayment of $90,172.24 to the Receiver General of Canada", the Senate expressly waived any right it may have had to keep the reports in issue confidential.

125However, Mr. Faille maintains that parliamentary privilege is a constitutional principle and cannot be waived except by constitutional enactment using clear and unambiguous language. See: Canada (House of Commons) v. Vaid, supra, at para. 26; Duke of Newcastle v. Morris (1870), L.R. 4 H.L. 661; New Brunswick Broadcasting C. v. Nova Scotia (Speaker of the House of Assembly, supra, at pp. 109, 120; Fielding v. Thomas, [1896] A.C. 600 (C.P.); P.W. Hogg, Constitutional Law of Canada, looseleaf ed., Toronto, Carswell, at p. 1-1-1-14.

126At page 325 of Prebble, supra, the Privy Council noted that:

Article 9 cannot be waived. The rule of law known as the privilege of freedom of speech is the privilege of the House as a whole, while it protects individual members it is not their privilege but a matter for enforcement by the courts. The House of Representatives cannot waive the effect of a statute and is bound by its provisions. Article 9 is part of the statute law of New Zealand by virtue of the Imperial Laws Application Act 1988, and it also has the force of law by virtue of section 242 of the Legislature Act 1908.

127In Canada, Article 9 is part of the law of Canada by virtue of the Constitution Act, 1867 as well as the provisions in the Parliament of Canada. Neither the Senate, nor any individual member is capable of waiving parliamentary privilege, except by enactment.

128Counsel for the Senate stresses that at no time did the Senate or any of its officials waive privilege by any clear and unambiguous conduct.

129The Speaker of the House, The Honourable Leo Housakos, made a public statement to CTV on May 10, 2015, in which he emphasized the Senate's desire to modernize the institution and to be transparent and accountable.

130It is clear from the transcript of the Speaker's statement that he is not making reference to the Joseph Internal Audit Report which is the subject of this Application. In fact, the Speaker is addressing an entirely different audit, namely, the Auditor General's Report.

131In any event, the aforementioned interview is hearsay and inadmissible, and contains no waiver of privilege, express or otherwise.

132Mr. Doody suggests that when the internal audit report and the later draft report on Senator Duffy were freely discussed, in the presence of the Senate's counsel, with the RCMP, any privilege in the reports was waived.

133Mr. Faille stresses that the mere referral of the Senate's concerns to the R.C.M.P. does not amount to a waiver of privilege in relation to Ms. Joseph's document nor any other document. He harkens back to paragraph 70, Canada (Deputy Commissioner, Royal Canadian Mounted Police) v. Canada (Commissioner, Royal Canadian Mounted Police) (F.C.), supra, wherein the Court wrote:

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.

134Mr. Doody refers to Master Beaudoin's decision in Riddell v. The Right Point [2007] O.J. No. 3943 at para. 61 wherein he writes:

I would not go so far as to hold that the courts could never rule on a question of waiver where it has been expressly waived or the conduct is clear and unambiguous.

135Mr. Doody relies on the following facts to support his position that the Senate has impliedly waived any privilege which may have existed in reports dealing with Senate expense accounts and Senator Duffy's expense accounts. He contends that the Senate has shown some expense accounts and allowed evidence to be freely given on the subject while wanting to keep secret the internal audit report which may be favourable to Senator Duffy.

136Many reports dealing with claims for allowances and expenses in the Senate, and of Senator Duffy,

(i) Are publicly available;

(ii) Were voluntarily provided to the police and disclosed to the defence; or

(iii) Were produced without objection by the Senate in response to a production order obtained by the police.

137The Clerk of the Senate, Gary O'Brien, and the Director of Internal Audit and Strategic Planning of the Senate freely gave information about the Senate's internal administration and finance and claims for allowances and expenses, including information about Jill Anne Joseph's Internal Audit Report, during the course of being interviewed by the RCMP, in the presence of the Senate's lawyer, Michel Patrice, who did not object.

138Many witnesses have testified about the policies governing expense accounts, and Senator Duffy's expense accounts, without objection from the Senate.

139Mr. Faille responds that the fact that the Senate may have disclosed various documents does not have the effect of extinguishing any privilege that may attach to those documents. In fact, the Clerk of the Senate, Mr. O'Brien's letter to the RCMP dated June 7, 2013 expressly stated that, "it is understood that the transmission of these documents should not be construed as a waiver on the Senate's part of its parliamentary privileges."

140Counsel for the Senate states that once the privilege exists, the court has "no power to review the rightness or wrongness of a particular decision made pursuant to the privilege." See: New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly) at p. 323. Once the privilege is recognized, "it will be for the House to act […] and the courts will not inquire into its exercise in a particular case." See: Canada (House of Commons) v. Vaid, supra.

141Mr. Faille maintains that ss. 19.1 to 19.9 of the Parliament of Canada Act does not advance the Appellant's cause. They do not contain any waivers of privilege, express or otherwise. In fact, s. 19.1(4) specifically provides that the Committee remains subject to the rules, direction and control of the Senate.

The Court's Position Relating to the Applicant's Submissions Regarding Senate Privilege

142I find that Ms. Joseph, in her capacity as an employee of the Senate, prepared an Internal Audit for the Senate. Said document was never intended to be made public and the Senate is now claiming parliamentary privilege over it.

143I am satisfied that the circumstances of this case trigger the recognized categories of parliamentary privilege, namely, freedom of speech; exclusive cognizance of and control over debates and proceedings; control by the Houses of Parliament over their internal affairs and disciplinary authority of its members.

144I agree with Mr. Faille's submission that the Lavigne decision, supra, is a complete answer to the issue at bar.

145Furthermore, I adopt Mr. Faille's submissions as they pertain to the necessity test.

146I do not find that the Chaytor, supra, decision advances the applicant's cause in this matter.

147For reasons as set out in paragraphs 116 – 121, whether privilege does or does not attach to one document, it is not determinative as to whether privilege attaches to the document before the court.

148I find that the Senate did not waive its privilege over the document generated by Ms. Joseph.

149Accordingly, I find that parliamentary privilege applies to Ms. Joseph's Report.

Interveners' Position and Response by the Respondent

The Scope and Purpose of Parliamentary Privilege

Overview

150The Interveners submit that a closer examination of the purpose of parliamentary privilege will assist in determining the importance of the broader public interest to the evolving analysis of parliamentary privilege in the 21st century.

151Counsel for the Senate characterizes the Interveners' argument as consisting in large measure of policy argument, unsupported by jurisprudence, that the asserted privileges are not necessary. He alternately casts the Interveners' position as one that recognizes the existence of privilege but argues against the necessity of applying it to the present case. Mr. Faille contends that this approach is also contrary to established principle.

152Mr. Jacobsen observes that given the time that has elapsed from the origins of parliamentary privilege, it may very well be time to examine the contours of parliamentary privilege and the necessity test used to delineate them with a view of ensuring that parliamentary privilege keep pace with and reflect modern Canadian society and its values.

153In January of 2015, the Subcommittee on Parliamentary Privilege of the Standing Committee on Rules, Procedures, and the Rights of Parliament published a paper entitled A Matter of Privilege: A Discussion Paper on Canadian Privilege in the 21st Century. At page 1 of this paper, the following passage from Colette Mireille Langlois, "Parliamentary Privilege: A Rational Approach", Journal of Parliamentary and Political Law, Vol. 6, March 2012, pp. 129-160 reads:

While for decades the understanding of parliamentary privilege was reasonably uniform and standard throughout the British Commonwealth, the evolution of parliamentary democracy has impacted the development of the law of privilege in Canada and abroad. No longer are concerns about privilege centred on the relationship between Parliament and the Crown. Rather, in the late 20th and now in the 21st century discourse about parliamentary privilege centres on how privilege should function in a rights-based legal system exemplified here in Canada by the Canadian Charter of Rights and Freedoms, where the public expects increased transparency and accountability for the decisions made by parliamentarians.

154Counsel for the Interveners recognizes the importance of parliamentary privilege to allow members to carry out their legislative and deliberative functions but notes that the rights and immunities do not exist to make the Houses of Parliament "enclaves shielded from the ordinary law of the land." See: Vaid, supra, at para. 29 (1).

155Mr. Jacobsen states that the Members of Parliament must be accountable to the public they serve and the scope of parliamentary privilege must be delineated in a manner that strictly reflects the core legislative and deliberative functions of legislators, as representatives of and holding duties to the broader public. In the Interveners' submission, this exercise - by necessity – must take full account of the Canadian public's interest in and right to transparent and accountable public institutions.

Freedom of Speech

156Counsel for the Interveners acknowledges the importance of freedom of speech as one of the recognized parliamentary privileges protected by immunity as it relates to "proceedings in Parliament."

157"Proceedings in Parliament" was addressed by Binnie J. in Vaid, supra, at para. 43 where he noted that:

Nevertheless, as stated in Erskine and 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 being ordered to come before it in due course.

158In Vaid, supra, at paragraph 44, the Court noted that the purposive connection between necessity and the legislative function is also to be emphasized.

159Justice Binnie wrote at para. 46 of Vaid, supra, that:

… 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.

160The Interveners submit that "proceedings in Parliament" and true legislative and deliberative functions, by definition, will (or should) be open and public. In contemporary Canadian society, Parliament is, as noted at page 79 of the 2015 Senate Subcommittee Discussion Paper, "the centre of public democratic life." However, it is acknowledged by them that these public proceedings are privileged and protected by parliamentary immunity by virtue of the privilege of freedom of speech.

161Mr. Jacobsen however, points out that many purely administrative functions performed by administrative staff of a legislative body are likely not to be public and that the products of these functions may be outside of public view in the normal course of the Senate's business and they are not privileged and therefore are not beyond the reach of the courts.

162Mr. Jacobsen contends that secrecy and confidentiality are contrary to the entire purpose pf parliamentary privilege, especially in the 21st century. Proceedings in Parliament should be open and communicated to the public; the immunity afforded by the privilege of freedom of speech is met to ensure that this is the case. To support this contention, reference is made to the 2015 Senate Subcommittee Discussion Paper, supra, at page 6, quoting from the UK Joint Committee on Parliamentary Privilege, Parliamentary Privilege – First Report – Volume 1, 9 April 1999 at para. 341:

Parliamentary freedom of speech would be of little value if what is said in Parliament by members, ministers and witnesses could not be freely communicated outside Parliament. There is an important public interest in the public knowing what is being debated and done in Parliament.

163Mr. Jacobsen states that there is a clear expectation on the part of Canadians that those who govern them will be transparent and accountable – especially in respect of their use of public funds – and should not use parliamentary privilege to keep information about public institutions and public officeholders from the view of the public unless proof of necessity is clearly and unambiguously made out.

Exclusive Cognizance and Internal Affairs

164Counsel for the Interveners next addresses the parliamentary privilege that grants legislative bodies special powers and rights of control over its proceedings. This power – and the immunity from external review that runs with it – is defined by the degree of autonomy necessary to ensure that the House's legislative and deliberative functions can proceed in an efficient manner, unimpeded by external bodies.

165Mr. Jacobsen contends that control or exclusive cognizance over the "internal affairs" of a House of Parliament must also be defined according to the directness of the connection of those "affairs" to the core legislative and deliberative function of the assembly. Reference to a general privilege over "internal affairs" returns us to the question of what properly constitutes "proceedings in Parliament".

166It is to be noted that the Court in Vaid, supra, at paras. 50-51 held that an assertion of privilege over "internal affairs" was problematic because, if interpreted narrowly, it simply refers to control over a House of Parliament's "own agenda and proceedings" and, if read broadly, "it would duplicate most of the matters recognized independently as privileges." For this reason, the court rejected an articulation of privilege over "internal affairs" without qualification.

167Mr. Jacobsen referenced the 2015 Senate Subcommittee on Parliamentary Privilege Discussion Paper at page 54 wherein it states that "immunity over internal affairs should be perhaps limited to control over elements of proceedings in Parliament, and that Parliament is not a 'statute-free zone'."

168Counsel for the Interveners notes that when analyzing the scope of particular parliamentary privileges and the sphere of activities over which a legislative body has exclusive cognizance, it is important to distinguish between powers and immunities. See: Vaid, supra, at para. 56.

169Binnie J. in Vaid, supra, at para. 39 also emphasized the following passage from Stockdale v. Hansard, (1839), 112 ER 1112 (Eng. Q.B.) at 1192, when explaining that courts are not bound by unilateral assertions of privilege and that in the UK, "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."

All persons ought to be very tender in preserving to the House all privileges which may be necessary for their exercise and to place the most implicit confidence in their representatives as to the due exercise of those privileges. But power, and especially the power of invading the rights of others, is a very different thing: it is to be regarded, not with tenderness, but with jealousy; and unless the legality of it be most clearly established, those who act under it must be answerable for the consequences.

170Mr. Jacobsen maintains that in the case at bar, Senator Duffy, is of course a Parliamentarian. However, the court is not adjudicating his parliamentary rights or privileges, but his criminal liability, which obviously is outside the parliamentary sphere.

171Mr. Jacobsen contends that a House of Parliament may have control over a particular set of internal documents but this does not mean that its disclosure is immunized against or precluded by privilege. In order for immunity to apply to a particular class of documents, the claimant of privilege must prove that this is necessary; that is, it must prove that it would not be able to discharge its legislative and deliberative functions without the immunity from disclosure – both its existence and scope – that it has asserted.

172Counsel for the Interveners states that in the modern Canadian context, especially where the privilege claimed affects the rights of individuals and/or matters not entirely "internal to the House," the necessity test used to define the scope of the privilege claimed must take into account Charter rights and values, the rule of law, and the public interest in the transparency and accountability of our public institutions. Any articulation of the sphere of activity over which a claim of privilege is asserted must involve a balancing and reconciling of the relative importance of the rights, interests and expectations of the public, with the relative necessity to the proper functioning of the legislative body of the powers and/or immunities being asserted.

173In Harvey v. New Brunswick (Attorney General), 1996 CanLII 163 (SCC), [1996] 2 S.C.R. 876 at para. 69 McLachlin J. (as she then was) expanded on her analysis of the relationship between the Charter and parliamentary privilege in her judgment in New Brunswick Broadcasting, supra, :

Because parliamentary privilege enjoys constitutional status it is not "subject to" the Charter, as are ordinary laws. Both parliamentary privilege and the Charter constitute essential parts of the Constitution of Canada. Neither prevails over the other. While parliamentary privilege and immunity from improper judicial interference in parliamentary processes must be maintained, so must the fundamental democratic guarantees of the Charter. Where apparent conflicts between different constitutional principles arise, the proper approach is not to resolve the conflict by subordinating one principle to the other, but rather to attempt to reconcile them.

174Mr Jacobsen suggests that it follows from this purposive approach to reconciling Charter rights and values with parliamentary privilege both that Charter rights should be read as being consistent with established parliamentary privileges and that the scope of asserted parliamentary privileges should be delineated in a way that is consistent with the guarantees of the Charter. The courts may not interfere with the exercise of an established privilege - including on grounds that the particular exercise is alleged to have infringed a Charter right – but "[t]o prevent abuses in the guise of privilege from trumping legitimate Charter interests, the court must inquire into the legitimacy of a claim of parliamentary privilege." See: Harvey v. New Brunswick, supra at para. 71. This inquiry must take account of the constitutional guarantees and values entrenched in the Charter.

175The Interveners submit that the following questions should be asked when determining the necessity component in this case: How important is the disclosure of the class of documents being sought by Senator Duffy in his criminal trial and the public's right to information about the Senator's expense claims and the oversight of those claims by the administration of the Senate of Canada? How necessary to the Senate's ability to carry out its legislative and deliberative functions, and to fulfil its duties to the public, is the confidentiality of internally prepared audit documents relating to Senator's expense claims?

Expense Claims and Audit Reports

176Mr. Jacobsen states that the question of parliamentary privilege is before the court in the context of criminal allegations relating to expenses claimed by and paid to Senator Duffy. He contends that since police investigations have occurred and criminal proceedings are in full swing with the apparent cooperation of the Senate and its officials, that this reflects the fact that the submission of expense claims forms by Senator Duffy and the payment of those claims by the Senate administration do not come within the ambit of "proceedings in Parliament" and therefore, are outside the scope of parliamentary privilege.

177Counsel for the Interveners relies on the 2010 UK Supreme Court decision of R. v. Chaytor, supra. This case involved an expense scandal. The Court unanimously held that the immunities provided by Article 9 of the Bill of Rights and by Parliament's exclusive cognizance over its internal affairs do not cover MPs' expense claims. Parliamentary privilege does not preclude the prosecution of legislators in the criminal courts for submitting allegedly false expense claims.

178Mr. Jacobsen suggests that the question the court should ask itself in the present case is: Does an Internal Audit Report apparently relating to every serving Senator and prepared by a member of the Senate's administrative staff come within a sphere of activity that 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 it should be beyond the reach of this court and of the public?

179Mr. Jacobsen notes that Chaytor, supra, at paras. 48 and 62 states that a judicial inquiry into and review of the administration and implementation of the system governing expense claims does not offend any constitutional principle:

Scrutiny of claims [for allowances and expenses] will have no adverse impact on the core or essential business of Parliament, it will not inhibit debate or freedom of speech. Indeed it will not inhibit any of the varied activities in which Members of Parliament indulge that bear in one way or another on their parliamentary duties. The only thing that it will inhibit is the making of dishonest claims.

Thus precedent, the views of Parliament and policy all point in the same direction. Submitting claims for allowances and expenses does not form part of, nor is it incidental to, the core or essential business of Parliament, which consists of collective deliberation and decision making. The submission of claims is an activity which is an incident of the administration of Parliament; it is not part of the proceedings in Parliament.

180Counsel for the Interveners states that it is important to note that whether a parliamentary committee is involved in a given activity is not determinative of whether or not the activity constitutes a "proceeding" covered by privilege and draws the attention of the court to paragraph 60 of Chaytor, supra.

The question was asked rhetorically of what the position would be if Members had to go before the Estimate Committee, or even the House, to ask for their expenses. It is submitted on behalf of the defendants that in that event their claims would constitute proceedings in Parliament and be protected by privilege, and that the same was true of claims made to the Fees Office as that office was acting on behalf of the House in receiving and considering the claims forms. The answer is that the submission and consideration of allowances and expenses claims is essentially a matter of administration, properly to be performed by officials, and that it would be absurd for this exercise to be performed by a committee or by the House.

181Mr. Jacobsen states that it may be that a court is precluded from ordering amendments to the rules pertaining to expense claims that have been adopted by the legislative assembly: the internal process by which the rules are designed and enacted may be a privileged sphere of activity. But how legislators and administrative staff conduct business themselves under the rules in place is not covered by parliamentary privilege. Such conduct does not constitute a "proceeding in Parliament" and it is not a matter within the exclusive cognizance of Parliament because it is not sufficiently linked to the legislative body's legislative and deliberative functions.

182Support for this position is found in Chaytor, supra, at para. 92:

If an applicant sought to attack by judicial review the scheme under which allowances and expenses are paid the court would no doubt refuse the application on the ground that this was a matter for the House. Examination of the manner in which the scheme is being implemented is not, however, a matter exclusively for Parliament.

Senate of Canada's Assertion of Privilege

183Counsel for the Interveners acknowledges that parliamentary privilege protects the legislative body in regard to any decision or proceeding forming part of the core of a legislative body's function in our society. Likewise, the privilege of freedom of speech prohibits the impeachment or questioning of speech made in proceedings in Parliament.

184Mr. Jacobsen contends that the question before the court is whether the Senate has met its onus to show that the disclosure of administrative staff-prepared audit reports relating to Senator's entitlement and claims to expenses is so inconsistent with its sovereignty as a legislative and deliberative assembly that it offends the constitutional separation of powers.

185The separation of powers requires that the Senate and the court respect the legitimate sphere of activity of the other as expressed by McLachlin J. in New Brunswick Broadcasting, supra, at 389:

Our democratic government consists of several branches: The Crown, as represented by the Governor General and the provincial counterparts of that office; the legislative body; the executive; and the courts. It is fundamental to the working of government as a whole that all parts play their proper role. It is equally fundamental that no one of them over steps its bounds, that they show proper deference for the legitimate sphere of activity of the other.

186The Interveners stress that they do not take a position as to the outcome of Senator Duffy's application for disclosure in this case. However, further to their submissions that the determination of the scope of parliamentary privilege must take into account the broader public interest, they raise the following points about the evidence tendered by the Senate.

187The Senate has identified three rights in its articulation of the scope of the privilege it is claiming.

188Mr. Jacobsen points out that although the Senate claims a right to hold Senate proceedings in camera there does not appear to be a clear evidentiary record that any such decision was taken in respect of any identifiable proceeding. Nor is it clear how any decision to hold a proceeding in camera, if there was one, links the documents being sought.

189Mr. Jacobsen states that the Senate also claims that the scope of the privilege asserted includes "control over documents in its possession." This appears to be similar to the general assertion of privilege over "the management of employees" in Vaid, supra.

190Finally, counsel for the Interveners notes that the Senate asserts that the scope of the privilege it claims includes "the protection of members and officers from giving evidence about a parliamentary proceeding." Again, this claim of privilege is broadly stated and its relevance does not appear to have been explained with reference to any evidence. In order to substantially address the necessity test, the Senate must indicate the proceedings which it is claiming privilege and how the privilege claimed relates to the documents being sought.

191It is submitted that apart from Vaid, supra, the only judicial decision raised by the Senate is that of R. v. Lavigne, supra wherein the Ontario Superior Court of Justice determined that transcripts of an in camera subcommittee meeting were protected by parliamentary privilege.

192Mr. Jacobsen repeats his position that there would not appear to be any evidence before the court that any Senate committee determined at any point to go in camera or, more importantly, how any such decision might relate to the documents being sought.

193Counsel for the Interveners contends that it is incumbent on the Senate to delineate and prove the necessity of the scope of privilege it is asserting over the documents Senator Duffy is seeking. While it is true that, once established, a court may not inquire into the exercise of a particular parliamentary privilege, Vaid, supra, tells us that the scope of the privilege asserted must not be overstated or defined too widely. The particular facts and circumstances are crucial to any determination of the scope of an assertion of parliamentary privilege and the scope asserted must be limited to that which is necessary for the legislative body to carry out its legislative and deliberative functions.

Conclusion

194The Interveners submit that the determination of the scope of an asserted parliamentary privilege through the necessity test take into account the public's interest in and right to transparent and accountable public institutions. Legislative bodies are not "enclaves shielded from the ordinary law of the land" and courts must ensure that the scope of parliamentary privileges only includes the powers and immunities absolutely necessary for the execution of an assembly's legislative and deliberative functions. This analysis must give full appreciation to the rights, freedoms and expectations of individuals and the public that legislative bodies exist to serve.

195Furthermore, it is submitted that while the Charter does not apply to the exercise of an established parliamentary privilege, Charter rights and values must inform the adjudication of the scope of parliamentary privilege. Freedom of expression and freedom of the press, including the public's right to information about government, are fundamental to Canada's functioning as a free and democratic society. Counsel also notes that in the particular circumstances of this assertion of parliamentary privilege, Senator Duffy obviously has certain other fundamental Charter rights to consider as well.

196In addition, Mr. Jacobsen submits that in the 21st century it must be recognized that the original circumstances in which parliamentary privilege developed are in the past and are largely irrelevant to the analysis today. It is no longer the case that Parliamentary privileges are used to shield against intrusions of a meddling monarch. Instead, more often than not, the claim of privilege pits a legislative body against an individual and /or the public at large.

197Mr. Jacobsen stresses that the proceedings in Parliament should be open and transparent. Parliamentary privilege exits to foster freedom of speech and openness. Parliament is at the centre of public democratic life. Modern Canadians expect that their elected (and, in the case of the Senate, appointed) representatives conduct their public duties in full public view. They expect transparency and accountability from those who govern them.

198Counsel for the Interveners concludes his very able submissions by directing the court's attention to observations made by the current Clerk of the Senate, Charles Robert, on the subject of parliamentary privilege.

199Mr. Robert reminds Canadian parliamentarians to carefully evaluate the effect that privilege might have on the rights and perception of the public. See: Charles Robert & Vince MacNeil, "Shield or Sword? Parliamentary Privilege, Charter Rights and The Rule of Law" (2007) 75 The Table, 17 at 37.

200He has also argued that in the 21st century, the necessity test must take into account both Charter values, like freedom of expression and the right to due process, and the public's expectation of accountability and transparency. See: Charles Robert & David Taylor, "Then and Now: Necessity, The Charter and Parliamentary Privilege in the Provincial Assemblies of Canada" (2012) 80 The Table 17 at 41-42.

201Mr. Jacobsen, on behalf of the Interveners, proposes that the words of Mr. Robert be heeded by courts and legislative assemblies across Canada.

Counsel for the Senate's Reply to the Interveners' Position

The Existence and Scope of the Claimed Privileges Have Been Authoritatively Affirmed

202Mr. Faille is clear in his submissions that the Interveners' argument is entirely at odds with the jurisprudence in relation to parliamentary privilege and that the Interveners are inviting the court, in effect, to disregard that jurisprudence.

203Counsel for the Senate points out that the Interveners' factum largely consists of a discourse that the claimed privilege is not, in the view of the Interveners, "necessary." However, Mr. Faille submits that the Interveners fail to acknowledge the elementary principle that in respect of privileges that have been authoritatively established, necessity need not be established. See: Vaid, supra.

204Mr. Faille notes that only where a party seeks to expand the law of privilege beyond its existing, recognized boundaries, must that party demonstrate the need for such a new category of privilege to be established using the four-part Wigmore test. The Senate in the case at bar is not urging the court to expand the privileges it asserts. The present case is unlike the circumstances in Vaid, supra, in which the Speaker sought to assert privilege to an area previously unrecognized, namely "management of employees."

205Counsel for the Senate emphasizes that the privileges asserted here are squarely within the recognized privileges repeatedly recognized as having been authoritatively established by the courts:

(i) freedom of speech;

(ii) exclusive cognizance of and control by the Houses of Parliament over "debates or proceedings in Parliament";

(iii) control by Houses of Parliament over their internal affairs;

(iv) disciplinary authority over members.

See Vaid, supra, at para. 29.

206Mr Faille notes that far from seeking to extend privilege externally in relation to third parties, he finds it difficult to discern a matter that could be more "internal" to the Senate than the presentation of an internal report by the appointed clerk of a Senate Subcommittee to members of that Subcommittee, at an in camera meeting, in relation to the internal management and/or discipline of Senate members – matters that themselves clearly fall within the Senate's purview. He further suggests that if privilege does not attach to such a matter, one might question whether this aspect of our constitutional law retains any force.

207It is clearly established that, as held by the Ontario Superior Court of Justice in Lavigne, supra, at para. 48, that 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."

208Accordingly, notwithstanding the Interveners' view that it ought not to be so, the Senate may deliberate and receive evidence, including documents or reports, in camera. This right – which finds form in privileges recognized for all three branches of government – is protected by established privilege, and is thereby enshrined in constitutional law.

209The Interveners' argument that the privilege at issue is not necessary is, in any event, unpersuasive. While necessity need not be proven in the instant case, it is amply demonstrated. Critical to the proper functioning of all three branches of government is the authority to exclude strangers and to deliberate in private. In the instant case, the Senate exercised this right, and it is not the proper role of the courts to either disregard or overturn that decision, nor to determine whether that right ought to be exercised in this particular case. The court does not have the authority to reverse "the senators' decision to hold the hearings [in] private," nor to "make public what the Senate did not wish to make public." See: Lavigne, supra, at para. 48.

210Mr. Faille submits that ultimately, the Interveners' argument amounts to stating that the privileges at play here (such as the ability to hold a hearing in camera) should be disregarded despite having been authoritatively recognized, or that it should not be applied to the instant case.

The Charter Aids in Interpretation Only in the Event of Ambiguity

211The jurisprudence is also clear that the Charter may not be invoked to defeat parliamentary privilege: privilege is enshrined in the constitution, and one part of the constitution may not abrogate another. See: 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 Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. at pp. 373 and 390.

212Mr. Faille suggests that the Interveners mischaracterize the guidance of the Supreme Court in this regard. He points out that the Supreme Court has stated that the Charter may be invoked in the event of a "conflict" between the privilege and the Charter arising from an ambiguity as to the existence or scope of the privilege. Mr. Faille states that in the case at bar, as in the case of New Brunswick Broadcasting, supra, there is no ambiguity, and therefore no "conflict" between the privileges and the Charter, and the Charter values cannot provide any limit to the to the Senate's power to invoke them. See: Harvey v. New Brunswick (Attorney General), 1996 CanLII 163 (SCC), [1996] 2 S.C.R. 876 at paras. 69, 71, 74.

213Similarly, as held in Lavigne, supra, at paras. 56-59, and other cases, a Charter right such as the right to make full answer and defence cannot be used to displace parliamentary privilege.

Neither Academic Commentary or Proposals for Reform Amend Parliamentary Privilege

214Mr. Faille notes that academic commentary, investigations, policy analysis or recommendations for reform of parliamentary privilege – even if emanating from so esteemed an authority as the Clerk of the Senate or the Senate's own subcommittee on Parliamentary Privilege- cannot be invoked to displace, amend or alter parliamentary privilege. These may no more do so than academic commentary, or even Parliamentary committee reports, operate to amend legislation. Until legislation is formally amended, it remains in force, notwithstanding proposals for reform, whatever their provenance. The law is clear in this regard that privilege may only be waived, revoked or amended by constitutional enactment, using clear and unambiguous language. See: Canada (House of Commons) v. Vaid, [2005] 2005 SCC 30 (CanLII), 1 S.C.R. 667 at para. 26; Duke of Newcastle v. Morris (1870), L.R. 4 H.L. 661; New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), 1993 CanLII 153 (SCC), [1993] 1 S.C.R. 319 at p. 109, 120; Fielding v. Thomas, [1896] A.C. 600(C.P.); P. W. Hogg, Constitutional Law of Canada, looseleaf ed., Toronto, Carswell, at p. 1-1, 1-14.

The Role of Privilege in a Free and Democratic Society

215Counsel for the Senate highlights that the Interveners recognize the privilege of freedom of speech, but fail to recognize what the courts have repeatedly stated as fundamental in regard to parliamentary privilege: namely, that it operates to preclude what is said in parliament from being the subject matter of investigation or submission. See: Prebble, supra, at pp. 333-4. Counsel states that the order sought by Senator Duffy – to compel the production of an internal document presented at an in camera meeting of a committee of the Senate – would have such an effect. If the document were found not to be subject to privilege and ordered produced, the presumption is that, subject to an enquiry as to relevance and general admissibility, it could be tendered as evidence at trial and thereby "be questioned in court."

216Counsel for the Senate notes the key importance of transparency and disclosure in a free and democratic society while at the same time stressing the critical role that parliamentary privilege and other privileges play within our society. Furthermore, it is suggested that parliamentary privilege serves as a vital instrument in safeguarding the autonomy of Parliament.

The Interveners' Reliance on R. v. Chaytor and Others Is Misguided

217The Chaytor, supra, decision has been addressed earlier in these reasons. Counsel for the Senate repeats his position that the Senate does not claim privilege in relation to expense claims and does not suggest that its members are immune from criminal liability with respect of improper claims.

218Mr. Faille maintains that R. v. Chaytor and Others, supra does not address the issue at hand, which is whether or not parliamentary privilege applies to a report or document presented to a subcommittee of the Senate in the course of its deliberations in regard to a matter within the Senate's authority.

219Mr. Faille refutes any suggestion by the Interveners that the Senate is seeking to immunize any members of the Senate by claiming parliamentary privilege in the instant case. Furthermore, counsel stresses that the Senate does not assert that the expense claims are themselves "proceedings" as was argued, unsuccessfully, by certain Parliamentarians in Chaytor, supra. Mr. Faille submits that the document at issue before this court is not a claim or primary document of any kind but rather it constitutes a report or document presented to a subcommittee of the Senate in the course of that subcommittee's in camera deliberations on a matter entirely within the Senate's authority.

The Court's Position Regarding the Interveners' Submissions on Senate Privilege

220I enjoyed reviewing the submissions and material tendered by Mr. Jacobsen on this Application. They attempt to persuade the court to take a more expansive approach to the issue of parliamentary privilege and to lift the veil of parliamentary privilege in order to allow the public-at-large the opportunity to access the internal workings of the democratic process.

221Regrettably, from the Interveners' point of view, I concur with Mr. Faille's submissions as set out in these reasons and I find that Ms. Joseph's Internal Audit Report meets the requirements of parliamentary privilege and that such privilege should not be lifted in this case.

Released to Counsel November 13, 2015

Released in Court November 19, 2015

Signed: "Justice Charles H. Vaillancourt"