Speaker of the Legislative Assembly of Ontario v. Ontario Human Rights Commission; Freitag, Intervenor [Indexed as: Ontario (Speaker of the Legislative Assembly) v. Ontario (Human Rights Commission)]

54 O.R. (3d) 595

[2001] O.J. No. 2180

Docket No. C35182

Court of Appeal for Ontario

Finlayson, Charron and Rosenberg JJ.A.

June 8, 2001

Constitutional law--Parliamentary privilege--Speaker of Legislative Assembly reciting Lord's Prayer at daily opening exercise--Complaint made to Human Rights Commission that recital of prayer a breach of Human Rights Code--Standing Orders of Legislative Assembly protected by parliamentary privilege--Human Rights Code, R.S.O. 1990, c. H.19, s. 34(1) (c)--Constitution Act, 1867, R.S.C. 1985, App. II, No. 5.

Human rights--Jurisdiction of Human Rights Commission --Parliamentary privilege--Discrimination--Speaker of Legislative Assembly reciting Lord's Prayer at daily opening exercise--Complaint made to Human Rights Commission that recital of prayer a breach of Human Rights Code--Standing Orders of Legislative Assembly protected by parliamentary privilege--Human Rights Code, R.S.O. 1990, c. H.19, s. 34(1) (c)--Constitution Act, 1867, R.S.C. 1985, App. II, No. 5.

HF, who was not a member of the Legislative Assembly, filed a complaint with the Ontario Human Rights Commission. He complained that the Speaker of the Assembly's recital of the Lord's Prayer as a part of the daily opening exercise, which recital was made pursuant to Standing Order 8(c), constituted a breach of HF's right under s. 1 of the Human Rights Code to equal treatment with respect to services, without discrimination. In response to HF's complaint, the Speaker wrote to the Commission and requested that it exercise its discretion under s. 34(1)(c) of the Human Rights Code to not deal with the complaint. The Commission, however, declined to exercise this discretion. The Speaker brought an application for judicial review. The Divisional Court granted the application, and the Commission appealed. In its appeal, the Commission raised the following issues: (1) whether actions taken pursuant to Standing Orders of the Legislative Assembly but alleged to breach the Human Rig hts Code are necessarily immune from examination by the Commission under the doctrine of parliamentary privilege; and (2) whether the Divisional Court erred in failing to find that the Commission's decision to allow the complaint to proceed was reasonable.

Held, the appeal should be dismissed.

The privilege asserted by the Speaker on behalf of the Legislative Assembly is the right to establish and regulate the Assembly's own internal affairs without any interference from the other two branches of government, the executive and the judicial. This privilege is a constitutional right that is recognized in the preamble to the Constitution Act, 1867. The internal procedures and rules of the Legislative Assembly are contained in Standing Orders, Special Orders and Rulings made by the Speaker. The Standing Orders are protected by parliamentary privilege and neither the courts nor any quasi- judicial body has the right to inquire into the contents or to question whether a particular part of the Standing Orders is necessary or lawful. If the Standing Orders, which include the prayers, are determined to be necessary to the proper functioning of the Assembly, then that is the end of the inquiry. While it is true that parliamentary privilege covers only matters that are necessary to the functioning of the Assembly, "necessity" in this context applies to categories of matters, and each particular exercise of privilege within a category is not scrutinized against a standard of necessity. Actions taken pursuant to Standing Orders that are necessary in this sense are immune from examination, even when those actions are alleged to breach the Human Rights Code. The Assembly must be absolutely free to set its own guidelines for how its legislative sessions will be carried out and the Standing Orders that detail the operation of parliamentary procedure are privileged and insulated from outside review. Having made the determination that the activity falls within the protected sphere, it is not open to the court, nor to any other body associated with the executive or judicial branches of government, to question any individual exercise of the conduct. As the recitation of the prayers is called for by the Standing Orders, it is encompassed as part of the Assembly's privilege relating to control of its inte rnal proceedings, and is not susceptible to outside challenge. The Divisional Court, therefore, did not err in failing to find that the Commission's decision to allow the complaint to proceed was reasonable. The Commission made a decision in deciding not to exercise its discretion under s. 34(1)(c) of the Human Rights Code to not deal with the complaint, and the standard of review for that decision was one of correctness. Accordingly, the appeal of the Commission of the decision of the Divisional Court should be dismissed.

APPEAL from a decision of the Divisional Court (McRae, Pardu and Sedgwick JJ.) (2000), 2000 ON SCDC 30135, 196 D.L.R. (4th) 136 allowing an application for judicial review.

Cases referred to Bradlaugh v. Gossett (1884), 12 Q.B.D. 271, 53 L.J.Q.B. 209, 50 L.T. 620, 32 W.R. 552; Freitag v. Penetanguishene (Town) (1999), 1999 ON CA 3786, 47 O.R. (3d) 301, 179 D.L.R. (4th) 150, 67 C.R.R. (2d) 1, 4 M.P.L.R. (3d) 1 (C.A.); Harvey v. New Brunswick (Attorney General), 1996 SCC 163, [1996] 2 S.C.R. 876, 178 N.B.R. (2d) 161, 137 D.L.R. (4th) 142, 201 N.R. 1, 454 A.P.R. 161, 37 C.R.R. (2d) 189; New Brunswick Broadcasting Co. v. Donahoe, 1993 SCC 153, [1993] 1 S.C.R. 319, 118 N.S.R. (2d) 181, 100 D.L.R. (4th) 212, 146 N.R. 161, 327 A.P.R. 181, 13 C.R.R. (2d) 1; R. v. Beauregard, 1986 SCC 24, [1986] 2 S.C.R. 56, 30 D.L.R. (4th) 481, 70 N.R. 1, 26 C.R.R. 59 (sub nom. Beauregard v. Canada) Statutes referred to Bill of Rights, 1689 (U.K.), 1 Will. & Mary, Sess. 2, c. 2 Canadian Charter of Rights and Freedoms, ss. 1, 2(b), 3, 12 Constitution Act, 1867, Preamble Elections Act, R.S.N.B. 1973, c. E-3 Human Rights Code, R.S.O. 1990, c. H.19, ss. 1, 33, 34, 34(1) (c), 36, 36(2), 41(1) Municipal Act, R.S.O. 1990, c. M.45, s. 55(2) Parliamentary Oaths Act, 1866 (U.K.), 29 Vict., c. 19 Authorities referred to Maingot, J.P., Parliamentary Privilege in Canada, 2nd ed. (Montreal: Queen's University Press, 1997) May, T.E., Treatise on The Law, Privileges, Proceedings and Usage of Parliament, 22nd ed. (London: Butterworths, 1997)

Neil Finkelstein, Melanie Aitken and Catherine Beagan Flood, for respondent. Cathryn Pike, for appellant. Edward Morgan, for intervenor.

The judgment of the court was delivered by

[1] FINLAYSON J.A.:-- The Ontario Human Rights Commission ("Commission") appeals from the decision of the Divisional Court, dated July 7, 2000 (cited at (2000), 2000 ON SCDC 30135, 196 D.L.R. (4th) 136 (Ont. Div. Ct.)). In that decision, the Divisional Court allowed an application for judicial review brought by the Speaker of the Legislative Assembly of Ontario (the "Speaker") with respect to a decision of the Commission dated April 12, 1999 in which the Commission declined to exercise its discretion under s. 34(1)(c) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 ("Code"), to "not deal with" the complaint of Henry W. Freitag. Subsection 34(1)(c) provides that where it appears to the Commission that a complaint is not within the jurisdiction of the Commission, it may, in its discretion, decide to not deal with the complaint.

I. Proceedings Below

Complaint to the Ontario Human Rights Commission

[2] Mr. Freitag filed a complaint with the Commission alleging that the recital of the Lord's Prayer, as part of the daily opening exercise of the Ontario Legislative Assembly (the "Assembly" or the "House"), constituted a breach of his right to equal treatment with respect to services, without discrimination because of creed, as protected by s. 1 of the Code. Mr. Freitag -- who is not a member of the Legislative Assembly, nor subject to its internal rules -- describes himself as a "person of non-Christian faith".

[3] In response to the complaint, the Speaker sent a letter to the Commission formally requesting the Commission, pursuant to s. 34(1)(c) of the Code, to not deal with the complaint. This request was based on the submission that as an emanation of the executive branch of government, or of the Crown, the Commission was without jurisdiction to inquire into the internal procedures of the Legislative Assembly or to strike down the Standing Orders of the Assembly.

[4] In response to the Speaker's request, the Commission considered the provisions of s. 34 of the Code and turned its mind to the question of whether it would exercise its discretion pursuant to s. 34(1)(c). By letter dated April 12, 1999, the Commission indicated that it was declining to exercise its discretion under s. 34(1)(c), and that the complaint should proceed through the normal course. At its meeting of March 28-29, 2000, the Commission decided not to refer the complaint to the board of inquiry because: (1) there was insufficient evidence to indicate that the complainant had been subjected to unequal treatment in the provision of goods, services or facilities because of his creed; and (2) the issues raised in the complaint should be determined under the Canadian Charter of Rights and Freedoms [See Note 1 at end of document] and, accordingly, referral to the board of inquiry under s. 36 of the Code would be inappropriate. This decision was made pursuant to s. 36(2) of the Code.

[5] The Speaker brought an application for judicial review of the Commission's decision of April 1999, in which the Commission had declined to exercise its discretion to not deal with the complaint.

Decision of the Divisional Court

[6] The application for judicial review was heard in Divisional Court by a panel consisting of McRae, Sedgwick and Pardu JJ. McRae J. wrote the majority decision and Pardu J. wrote a dissenting opinion.

[7] McRae J. first noted the following facts: since at least 1792, the meetings of the Assembly have opened with a prayer; on May 26, 1969, a new short form of prayer was adopted; and Standing Order of the House 8(c) enacted July 25, 1989 requires that "[t]he Speaker shall take the chair at the time appointed on every day fixed for the meeting of the House and shall read the Prayers". McRae J. further noted that although the Commission made a decision not to refer the complaint to a hearing, the issue was not moot and there remained a genuine lis between the parties.

[8] According to McRae J., parliamentary privilege is an ancient concept in English law extending back to the original Bill of Rights of 1689. [See Note 2 at end of document] He described parliamentary privilege in the following manner [at p. 141 D.L.R.]:

It refers to those rights and immunities enjoyed by legislative bodies and their members which are recognized as being necessary to ensure that the legislature is independent and able to carry out its functions.

[9] McRae J. then quoted extensively from the majority reasons of McLachlin J. in the Supreme Court of Canada decision New Brunswick Broadcasting Co. v. Donahoe, 1993 SCC 153, [1993] 1 S.C.R. 319, 118 N.S.R. (2d) 181 (hereinafter "New Brunswick Broadcasting"). In that case, the Canadian Broadcasting Corporation made an application to the Nova Scotia Supreme Court, Trial Division, for an order allowing it to film the proceedings of the House of Assembly with its own cameras. The application was based on s. 2(b) of the Charter. The media had regular access to the public gallery in the House, but the House of Assembly, in a purported exercise of its parliamentary privileges, prohibited the use of television cameras in the House. The main question before the Supreme Court was whether the Charter applied to the members of the House when they were exercising their privileges as members. McLachlin J. for the majority of the Supreme Court of Canada concluded that the Charter did not apply to the matter at hand, because the action in dispute was taken pursuant to a right which enjoys constitutional status and is not one that can be abrogated by the Charter. According to McLachlin J., the wording of our written constitution supports the proposition that Parliament and the legislatures of the provinces possess those historically recognized inherent constitutional powers and privileges as are necessary to their proper functioning -- such as the ability to exclude strangers from the chamber -- and such privileges are immune from Charter review.

[10] After quoting from New Brunswick Broadcasting, supra, McRae J. went on to recognize that Standing Orders have been passed for the purpose of the efficient operation of the Legislature and are necessary for the proper administration and day to day operation of the House. On this point, he noted [at p. 142 D.L.R.], "[t]he courts will not inquire into the impugned Standing Order nor should the Commission."

[11] The broad powers of search contained in s. 33 of the Code were examined by McRae J., who also considered the wide powers of enforcement and punishment given to boards of inquiry under s. 41(1). McRae J. concluded the judgment by stating [at p. 142 D.L.R.]:

Standing Orders including the impugned one are at the very heart of the day-to-day operation of the Legislature and an integral part of its proceedings. They fall within the scope of parliamentary privilege and they must be protected from outside attack from a body such as the Human Rights Commission to ensure that the Legislature is able to perform its duties and responsibilities without interference.

[12] Accordingly, he held that the subject of the complaint was governed by the doctrine of parliamentary privilege and was outside the Commission's jurisdiction to investigate. He therefore allowed the application for judicial review.

[13] Pardu J. dissented, holding that it was far from clear whether the subject-matter of the complaint was immune from review, and that the Commission acted reasonably when it declined to exercise its discretion to terminate complaint proceedings prior to an inquiry into the merits.

[14] The appellant has now asked this court to overturn the decision of the Divisional Court, on the basis that it is inconsistent with Supreme Court of Canada jurisprudence on the reconciliation of conflicting rights and inconsistent with rulings of the Supreme Court and this court to the effect that a Christian religious stamp should no longer be imposed upon society as a whole.

II. Issues as Stated by the Appellant

1. Are actions taken pursuant to Standing Orders of the Legislative Assembly necessarily immune from examination by the Commission, when those actions are alleged to breach the Code?

2. Did the Divisional Court err in failing to find that the Commission's decision to allow the complaint to proceed was reasonable?

III. Analysis

Issue #1

[15] The first issue raised by the appellant was whether actions taken pursuant to Standing Orders of the Assembly are necessarily immune from examination by the Commission, when those actions are alleged to breach the Code. According to the appellant, the Divisional Court did not properly consider the limitations described in the jurisprudence on the doctrine of parliamentary privilege and erred in using that doctrine to insulate the recitation of the prayer from judicial scrutiny. Further, the appellant contended that the Commission does possess the authority to review the Speaker's actions in circumstances where those actions are alleged to violate the Code, based on the fact that the Code is of a special nature, prevails over any other laws unless the legislature states so in express and unequivocal language, and applies both to private and public actors within the province.

[16] As an alternative to the broad assertion that the jurisdiction of the Commission is open-ended, the appellant submitted that the provision in the Standing Orders that requires the session to open with the saying of prayers does not fall within the protected scope of privileged internal proceedings, since the prayers are not necessary to the conduct of the day to day proceedings of the Legislature. The appellant submitted that the Legislature cannot create a privilege over impugned conduct simply by stating that such conduct is necessary to the regulation of its proceedings. According to the appellant, it is for the court to decide whether the function is necessary, and thus privileged, not for the Legislature.

[17] The appellant examined the case of New Brunswick Broadcasting, supra, and noted that while McLachlin J. recognized that one of the constitutionally-entrenched parliamentary privileges is the right of the House to control its internal proceedings, the question of whether a particular matter falls within the scope of internal proceedings is itself still subject to inquiry. On this basis, the appellant submitted that since the complaint at issue clearly involved the assertion of a private right, it cannot be maintained that the recitation of the Lord's Prayer is strictly a matter of the Legislature's internal proceedings. Further, it was argued that while the majority in New Brunswick Broadcasting, supra, held that immunity from judicial review provided by a constitutionally-entrenched privilege precluded scrutiny by the courts for adherence to the Charter, subsequent jurisprudence recognized that where the two constitutional principles conflict, neither should be subordinate to the other, and conduct claimed to fall within an entrenched parliamentary privilege could be deemed outside the purview of the privilege if it violated the equality provisions of the Charter. To support this contention, the appellant cited Harvey v. New Brunswick (Attorney General), 1996 SCC 163, [1996] 2 S.C.R. 876, 178 N.B.R. (2d) 161 (hereinafter "Harvey").

[18] With respect, the appellant's arguments on this point are wrong on a number of fronts. The privilege asserted by the Parliament of Canada and the provincial legislatures that they are independent of the executive and judicial branches of government is itself a constitutional right that is expressly recognized in the preamble to the Constitution Act, 1867. [See Note 3 at end of document] In R. v. Beauregard, 1986 SCC 24, [1986] 2 S.C.R. 56, 26 C.R.R. 59, Dickson C.J.C. stated at p. 72 S.C.R.:

The preamble to the Constitution Act, 1867 states that Canada is to have a Constitution "similar in Principle to that of the United Kingdom". Since judicial independence has been for centuries an important principle of the Constitution of the United Kingdom, it is fair to infer that it was transferred to Canada by the constitutional language of the preamble.

[19] In the case under appeal, the privilege asserted by the Speaker on behalf of the Legislative Assembly is the right to establish and regulate the House's own internal affairs without any interference from the other two branches of government, the executive and the judicial. In addressing the problem in this case, we are weighing the constitutional rights of a citizen of the state against the right of legislative assemblies, hard won over the centuries, to control their own affairs independent of the Crown. The fact that the Commission is a creation of the Legislature is of no significance in this case. The Commission is simply an emanation of the Crown and is subject, at the very least, to the same restrictions respecting the Legislature as are the judiciary and the executive.

[20] The internal procedures and rules of the Legislative Assembly are contained in Standing Orders, other Special Orders and Rulings made by the Speaker based on convention, precedent, past practice and parliamentary authorities. Section I of the Standing Orders deals with the Conduct of Business and contains Standing Order 8(c) which states:

The Speaker shall take the chair at the time appointed on every day fixed for the meeting of the House and shall read the Prayers.

(Emphasis added)

[21] The form and content of the prayers has been prescribed by a Special Order promulgated in 1969. One of the two prayers is non-denominational and the complainant Freitag has no objection to it. The other prayer is the "Lord's Prayer" which is associated with the Christian religion. It is the subject of the controversy.

[22] The appellant and the intervenor have presented their arguments in a variety of manners, but the sum and substance of their position is that the Commission, if it chooses to do so, has the right to examine the content of the prayers and to order the Speaker to change or delete them to respond to the intervenor's complaint that the recitation of one of the prayers violates his right to equal treatment. The appellant justifies this position on the basis that even if a prayer is required, a Christian prayer is not. It submits that the courts and the Commission are entitled to make a determination whether the offering of the prayers is a necessary or legal incident of the conduct of the business of the Legislative Assembly.

[23] With respect, the appellant's approach to this issue is wrong. The question is not whether the prayers are necessary, but whether the Standing Orders governing the conduct of the business of the Assembly are necessary. If the Standing Orders are determined to be necessary to the proper functioning of the House -- and they include the prayers -- that is the end of the inquiry. The Standing Orders are protected by parliamentary privilege and neither the courts nor any quasi-judicial body have the right to inquire into their contents or to question whether a particular part of the Standing Orders (including the recitation of prayers) is necessary or indeed lawful. As McLachlin J. stated in New Brunswick Broadcasting, supra, at p. 383 S.C.R.:

The test of necessity is not applied as a standard for judging the content of a claimed privilege, but for the purpose of determining the necessary sphere of exclusive or absolute "parliamentary" or "legislative" jurisdiction. If a matter falls within this necessary sphere of matters without which the dignity and efficiency of the House cannot be upheld, courts will not inquire into questions concerning such privilege. All such questions will instead fall to the exclusive jurisdiction of the legislative body.

(Emphasis added)

[24] McLachlin J. further stated at pp. 384-85 S.C.R.:

Were the courts to examine the content of particular exercises of valid privilege, and hold some of these exercises invalid, they would trump the exclusive jurisdiction of the legislative body, after having admitted that the privilege in issue falls within the exclusive jurisdiction of the legislative body. The only area for court review is at the initial jurisdictional level: is the privilege claimed one of those privileges necessary to the capacity of the legislature to function? A particular exercise of a necessary privilege cannot then be reviewed, unless the deference and the conclusion reached at the initial stage be rendered nugatory.

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

(Emphasis added)

[25] Therefore, while it is true to say in the abstract that parliamentary privilege covers those matters which are necessary to the functioning of the House, "necessity" in this context applies to categories of matters, and each particular exercise of privilege within a category is not scrutinized against a standard of necessity. As noted by McLachlin J., once a court has decided that a category of matters is necessary to the independent functioning of the House, it does not then go on to decide whether each individual exercise of privilege is necessary, but, rather, only has to ask whether the particular exercise in question falls within the recognized category of privilege. If it does, it is not subject to outside review.

[26] Accordingly, if rules of order are determined to be necessary to the capacity of the Legislature to function, their form and content are solely matters within the exclusive and absolute jurisdiction of the Legislature. In this regard, the decision of McLachlin J. in New Brunswick Broadcasting, supra, clearly establishes that the Assembly's ability to control its own internal proceedings is a necessary category of conduct that receives the constitutionally-entrenched protection of parliamentary privilege. As stated at p. 385 S.C.R.:

Among the specific privileges which arose in the United Kingdom are the following:

(a) freedom of speech, including immunity from civil proceedings with respect to any matter arising from the carrying out of the duties of a member of the House;

(b) exclusive control over the House's own proceedings;

(c) ejection of strangers from the House and its precincts; and

(d) control of publication of debates and proceedings in the House.

(Emphasis added)

[27] After commenting further that the need for the right to freedom of speech in the House is "so obvious as to require no comment", McLachlin J. stated at p. 386 S.C.R.:

The right of the House to be the sole judge of the lawfulness of its proceedings, is similarly evident; Erskine May [in Treatise on The Law, Privileges, Proceedings and Usage of Parliament, 21st ed., (1989)] states that this right is "fully established". In settling or departing from its own codes of procedure "the House can 'practically change or practically supersede the law'" (p. 90).

(Emphasis added)

[28] In a concurring judgment, Lamer C.J.C. was not prepared to grant parliamentary privileges a constitutional status which is on the same footing as the Charter, but did make the following finding at p. 354 S.C.R.:

There is a clear parallel between the doctrines of independence of the judiciary and of parliamentary privilege as the latter is the means by which the Houses of Parliament protect their independence. In Canada, it is through the exercise of the privileges inherent in all legislative bodies that the provincial Houses of Assembly are able to control their own proceedings and thereby maintain the independence of the legislative process.

[29] While the case of New Brunswick Broadcasting, supra, appears to be directly on point to the case at bar, the appellant contends that the application of McLachlin J.'s decision must be tempered based on what the appellant claims to be a conflict between that case and the later decision of the Supreme Court of Canada in Harvey, supra. I do not see any conflict between the two cases and view the later decision as simply a re-affirmation of the earlier case in the context of the application of the doctrine of privilege to the act of the New Brunswick Legislature in expelling from the Legislature a member who had been convicted of corrupt practices under the Elections Act, R.S.N.B. 1973, c. E-3.

[30] In the case of Harvey, supra, it was argued that the Legislature's conduct violated the member's s. 12 Charter rights, since the expulsion constituted cruel and unusual treatment or punishment. In refusing to act on this argument on the basis that the conduct at issue was outside the purview of judicial intervention, McLachlin J. reiterated what she had earlier said in New Brunswick Broadcasting, supra. For example, at p. 918 S.C.R. of the decision in Harvey, supra, McLachlin J. stated:

This is not to say that the courts have no role to play in the debate which arises where individual rights are alleged to conflict with parliamentary privilege. Under the British system of parliamentary supremacy, the courts arguably play no role in monitoring the exercise of parliamentary privilege. In Canada, this has been altered by the Charter's enunciation of values which may in particular cases conflict with the exercise of such privilege. To prevent abuses cloaked in the guise of privilege from trumping legitimate Charter interests, the courts must inquire into the legitimacy of a claim of parliamentary privilege. As this Court made clear in New Brunswick Broadcasting, the courts may properly question whether a claimed privilege exists. This screening role means that where it is alleged that a person has been expelled or disqualified on invalid grounds, the courts must determine whether the act falls within the scope of parliamentary privilege. If the court concludes that it does, no further review lies.

(Emphasis added)

[31] Earlier in that decision, McLachlin J. dealt specifically with the argument that parliamentary privilege could not be asserted in the face of an express Charter violation. McLachlin J. rejected this argument and very clearly stated that because the legislative privilege itself enjoys a constitutional status, it cannot be subject to the Charter in the manner of non-constitutional laws. She said at p. 917 S.C.R.:

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.

[32] As becomes evident, the reconciliation process referenced by McLachlin J. involves reading the Charter as being consistent with parliamentary privilege, not the other way around as submitted by the appellant. The Charter recognizes Parliamentary privilege, it does not override it. In applying this reconciliation process to the case before her, McLachlin J. referred to s. 3 of the Charter which guarantees every citizen of Canada the right to vote in an election of members of the House of Commons or of a legislative assembly, and stated at p. 917 S.C.R.:

The purpose of the democratic guarantees in the Charter must be taken to be the preservation of democratic values inherent in the existing Canadian Constitution, including the fundamental constitutional right of Parliament and the legislatures to regulate their own proceedings. Express words would be required to overthrow such an important constitutional principle as parliamentary privilege.

(Emphasis added)

[33] Accordingly, the principles espoused in New Brunswick Broadcasting, supra, have not been altered by subsequent jurisprudence and remain directly relevant to this case. Further, the ideas expressed by McLachlin J. in that case are echoed in leading authorities on parliamentary privilege, such as Erskine May's Treatise on The Law, Privileges, Proceedings and Usage of Parliament, 22nd ed. (London: Butterworths, 1997). On the subject of parliamentary privilege, the author states at pp. 88-89:

Closely related to the claim of freedom of speech in and underlying the Bill of Rights is the privilege of both Houses to the exclusive cognisance of their own proceedings. Both Houses retain the right to be the sole judge of the lawfulness of their own proceedings, and to settle -- or depart from -- their own code of procedure.

(Emphasis added)

[34] Another equally authoritative text is J.P. Maingot's Parliamentary Privilege in Canada, 2nd ed. (Montreal: Queen's University Press, 1997), in which the author states at pp. 183-84:

The privilege of control over its own affairs and proceedings is one of the most significant attributes of an independent legislative institution.

The right to regulate its own internal affairs and procedures free from interference includes:

4. The right to administer that part of the statute law relating to its internal procedure without interference from the courts.

5. The right to settle its own code of procedure.

The Bill of Rights, 1689 declares that proceedings in Parliament shall not be questioned elsewhere than in Parliament, and the basis of privilege being necessity for the House to effectively perform its legislative and investigative functions, the examination of witnesses openly or during in camera sittings is well within rights exercisable within the House.

(Endnotes omitted)

[35] Maingot makes the further point that even with statutes that are enacted by Parliament to control some aspect of the internal proceedings of the House of Commons, the House of Commons retains the absolute right to interpret those statutes. This is so even though such statutes, like all other Acts of Parliament, are subject to the Charter. The author states at pp. 184-85:

The Bill of Rights, 1689 (Article 9) also construes the right of each House to settle its own code of procedure because it forbids anything said or done in Parliament to be questioned out of Parliament. Therefore neither House is subject to the control of the courts in their administration of that part of the statute law relating to its own internal proceedings. Either House may change its rules that are not set out in the Constitution. Otherwise, its interpretation of rules for proceedings in the House set out in legislation or its own Standing Orders is not subject to appeal.

(Endnotes omitted)

[36] The author's authority for this proposition, Bradlaugh v. Gossett (1884), 12 Q.B.D. 271, 53 L.J.Q.B. 209, is instructive. In that case, Charles Bradlaugh was elected to serve in the English House of Commons and was entitled to take the oath prescribed by law to be taken by members of the House of Commons, and to sit and vote as one of its representatives. Bradlaugh required the Speaker to call him to the table for the purpose of taking the oath, but the Speaker refused. The Speaker was supported by the House of Commons, which passed a resolution directing the Sergeant-at-Arms to exclude Bradlaugh from the House. Bradlaugh brought an action against the Sergeant-at-Arms seeking an injunction restraining him from carrying out the resolution.

[37] The report of the Queen's Bench proceedings does not attribute to the Speaker any reasons for his refusal to allow Bradlaugh to take the oath, but counsel for the respondent told this court that it was because Bradlaugh was an acknowledged atheist. However, what is important is that the panel of the court of Queen's Bench, comprised of Lord Coleridge C.J., Mathew J. and Stephen J., who heard the matter on a demurrer, was prepared to proceed on the assumption that the House of Commons had passed a resolution inconsistent with the Parliamentary Oaths Act, 1866 (U.K.), 29 Vict., c. 19 (see p. 280 Q.B.D.). Stephen J. summarized the matter this way at p. 278 Q.B.D.:

The legal question which this statement of the case appears to me to raise for our decision is this: -- Suppose that the House of Commons forbids one of its members to do that which an Act of Parliament requires him to do, and, in order to enforce its prohibition, directs its executive officer to exclude him from the House by force if necessary, is such an order one which we can declare to be void and restrain the executive officer of the House from carrying out? In my opinion, we have no such power. I think that the House of Commons is not subject to the control of Her Majesty's Courts in its administration of that part of the statute-law which has relation to its own internal proceedings, and that the use of such actual force as may be necessary to carry into effect such a resolution as the one before us is justifiable.

(Emphasis added)

[38] And at pp. 280-81 Q.B.D.:

It seems to follow that the House of Commons has the exclusive power of interpreting the statute, so far as the regulation of its own proceedings within its own walls is concerned; and that, even if the interpretation should be erroneous, this Court has no power to interfere directly or indirectly.

[39] It is evident that the court of Queen's Bench regarded the internal workings of Parliament as protected by privilege and it was not prepared to scrutinize conduct that fell within that category, even if such conduct violated a statutory right. As stated by Lord Coleridge C.J. at p. 277 Q.B.D.:

The history of England, and the resolutions of the House of Commons itself, shew that now and then injustice has been done by the House to individual members of it. But the remedy, if remedy it be, lies, not in actions in the courts of law . . . but by an appeal to the constituencies whom the House of Commons represents.

[40] I cannot leave this subject without commenting on this court's decision in Freitag v. Penetanguishene (Town) (1999), 1999 ON CA 3786, 47 O.R. (3d) 301, 67 C.R.R. (2d) 1 (C.A.), even though that case is readily distinguishable from the case in appeal. In that case, the Mayor of the respondent town customarily commenced public meetings of the town council by inviting the councillors to rise and recite the Lord's Prayer. The Mayor stated in an affidavit that the purpose of the practice was to "have the Council take a moment's pause to recognize the importance of our deliberations, the moral values that should be brought onto our deliberations and the fact that we are serving the public when we deliberate" [at p. 304 O.R.].

[41] The same Mr. Freitag who launched the complaint that forms the subject of this appeal was a resident of the town and regularly attended the town council meetings. According to him, when the council members rose and recited the prayer, members of the public also rose and recited the prayer with them. Mr. Freitag acknowledged that he was not forced to stand and say the prayer, but argued that there was great pressure to do so and that he felt intimidated and uncomfortable with the practice adopted by the town.

[42] Mr. Freitag complained to the Ontario Human Rights Commission, which ultimately declined to order a board of inquiry on what appeared to be jurisdictional grounds. He then brought an application for a declaration that the recitation of denominational prayer violated his freedom of religion under the Charter. The applications judge dismissed the application on two grounds. He first found that there was no legislation or regulation in issue that affected Mr. Freitag's Charter rights. Second, he held that if the practice was carried out pursuant to a by-law enacted under the Municipal Act, R.S.O. 1990, c. M.45, its effect was trivial and insubstantial and did not violate the protection of freedom of religion.

[43] The town is organized under and governed by the Municipal Act. Section 55(2) of that Act provides that every council shall adopt a procedure by-law for governing the calling, place and proceedings of meetings. The town council passed By-Law 1996-69, s. 9.2 of which provides that the Mayor shall open the meeting of the council by taking the chair and calling the members to order. The by-law provides that the Mayor is the head of council.

[44] On appeal from the decision of the applications judge, the reasons of this court were delivered by Feldman J.A. She first found that the act of the Mayor in inviting the members of the council to rise with him and recite the prayer was governmental conduct which is subject to the Charter. This finding was in response to an argument by the respondent town that the recitation of the Lord's Prayer by the Mayor was done at the personal invitation of the Mayor and was not part of the legislated procedure for the conduct of the council meetings. This finding of Feldman J.A. is significant and is a response to the argument made in this appeal to the effect that the Lord's Prayer is separate from the Standing Orders that govern the conduct of the proceedings in the Legislature. Feldman J.A. stated at pp. 305-06 O.R.:

The by-law of the respondent Town does not mandate recitation of the Lord's Prayer, nor does it refer to the recitation of any prayer or particular opening ceremony for council and committee meetings. However, the mayor's authority to conduct the meetings derives directly from the Municipal Act, while his authority to open the meetings derives from the by-law. The fact that he chooses to do so by invoking the Lord's Prayer means that the recitation of the prayer is part of the meetings and is done pursuant to the authority of the mayor to open and conduct the meetings. It does not make it an invitation of the mayor in his personal capacity and, therefore, outside his legislative capacity and authority to open and conduct the meetings. In other words, when the mayor opens the Town Council meetings by inviting the councillors to rise and recite the Lord's Prayer with him, that action is governmental conduct by a government official in a government meeting.

(Emphasis added)

[45] The next question considered by Feldman J.A. was whether the governmental conduct by the town infringed the Charter freedom of conscience and religion. Feldman J.A. examined the purpose of the town's practice, finding that the purpose of the recitation of the prayer was to impose a Christian moral tone on the deliberations of council. Further, Feldman J.A. considered the effects of the conduct, holding that they were neither trivial nor insubstantial. After having found a violation of the Charter, Feldman J.A. determined that the violation could not be saved under s. 1 of the Charter. Accordingly, the appeal was allowed and judgment was granted declaring that the practice of the town was unconstitutional and enjoining the council from continuing to require or permit the Lord's Prayer to be recited by members of council at the commencement of its meetings.

[46] In terms of comparing the case decided by Feldman J.A. to the case at bar, it must first be noted that in Freitag v. Penetanguishene, supra, the offending body was a municipal council, not a provincial legislative assembly. This is an extremely significant difference. A municipal council is a creation of the legislature and only has those powers granted and delegated to it by the province. In the case at bar, the court is being asked to scrutinize the actions of a provincial legislative body that enjoys constitutional status. It is the direct successor to the "mother of all parliaments" in the United Kingdom. The Assembly elected the Speaker from within its membership and clothed the Speaker with far-reaching powers to oversee all of the business of the House. With or without the Standing Orders, the Speaker's activities as they relate to the internal procedures of the legislature are protected by the same constitutionally-entrenched privileges that protect the independence of the Legislature itself.

[47] Since the scope and application of parliamentary privilege were not even considered in Freitag v. Penetanguishene, supra, it cannot be said that that case binds the court's hands in the case at bar. It is my opinion that Feldman J.A.'s decision is of little guidance to the issues in the case at bar, given that our inquiries are not directed at determining whether the actions of the Speaker violate human rights legislation or the Charter, but, rather, are directed at deciding whether the shield of parliamentary privilege protects the Speaker, even when his acts allegedly conflict with provisions of the Code.

[48] Accordingly, it is my opinion that actions taken pursuant to the Assembly's Standing Orders are immune from examination by the Commission, even when those actions are alleged to breach the Code. I consider it well established that the Assembly must be afforded privilege over its own internal affairs and day-to-day proceedings and that this privilege includes the setting of rules such as the Standing Orders to provide for the proper functioning of the Assembly. That is, matters relating to the internal workings of the House must be subject to the exclusive jurisdiction of the House, since control over such matters is necessary to the independent existence of the House. The House must be absolutely free to set its own guidelines for how its legislative sessions will be carried out and the Standing Orders that detail the operation of parliamentary procedure must be considered privileged and insulated from outside review. Having made this determination, it is not open to this court, nor to any other body a ssociated with the executive or judicial branches of government, to question an individual exercise of conduct that falls within the protected sphere. As the recitation of the prayers is called for by the Standing Orders, it is encompassed as part of the Assembly's privilege relating to control of its internal proceedings, and is not susceptible to outside challenge.

Issue #2

[49] The second issue raised by the appellant was whether the Divisional Court erred in failing to find that the Commission's decision to allow the complaint to proceed was reasonable. It was submitted by the appellant that when the Commission merely declines to exercise its statutory discretion pursuant to s. 34 of the Code, and does not thereby make any decision or come to any conclusion as to the scope or extent of its jurisdiction, the appropriate standard of review is that of "patent unreasonableness". Based on this approach, the appellant argued that the Commission acted reasonably when it declined to exercise its discretion to not deal with the complaint.

[50] On this issue of the proper standard of review, the respondent's position is that the standard of review of a decision about jurisdiction under s. 34(1)(c) of the Code is that of correctness.

[51] My own view is that on an issue as fundamental as the decision of the Commission to assert jurisdiction over the activities of the Speaker, there can be no deference whatsoever. By expressly refusing the request by the Speaker to decline jurisdiction, the Commission left the Speaker exposed to having the complaint re-activated at the whim of the Commission. The submission that the Commission does not regard its behaviour as constituting a decision reflects badly on its administrative process. A decision not to exercise a statutory discretion or not to make a decision is nonetheless an exercise of a statutory power of decision making and must be subject to judicial review. This is especially true when the decision not to act results in the Commission retaining jurisdiction over the subject matter of the complaint.

[52] I agree with the Divisional Court that the Commission's actions constituted a decision, that the issues involved in this case are not moot, and that the appropriate standard of review for the Commission's decision is that of correctness.

IV. Conclusion

[53] For the reasons set out above, the answer to the first issue as framed by the appellant is "Yes" and the answer to the second issue as framed by the appellant is "No". Accordingly, I would dismiss the appeal. This is not an appropriate case for costs.

Appeal dismissed without costs.

Notes

Note 1: Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (hereinafter the "Charter").

Note 2: 1 Will. & Mary, Sess. 2, c. 2 (U.K.).

Note 3: 30 & 31 Vict., c. 3 (U.K.), reprinted in R.S.C. 1985, App. II, No. 5.