The Honourable John Manley, in his capacity as Member of Parliament for Ottawa South v. Telezone Inc. et al.

Telezone Inc. v. The Attorney General of Canada

[Indexed as: Telezone Inc. v. Canada (Attorney General)]

69 O.R. (3d) 161

[2004] O.J. No. 5

Docket Nos. C40084 and C40211

Court of Appeal for Ontario

Laskin, MacPherson and Simmons JJ.A.

January 6, 2004

Constitutional law -- Parliamentary privilege -- Motion judge ordering Member of Parliament to attend for examination for discovery no sooner than 15th day after commencement of Parliament's Summer Recess -- Motion judge erring in defining scope of privilege of testimonial immunity of Members of Parliament as period that Parliament is actually sitting and for 14 days after it adjourns -- Parliamentary privilege continuing for 40 days after session of Parliament and recommencing 40 days before new session.

The plaintiff brought an action against the Attorney General of Canada seeking damages arising out of the failure of M, as Minister of Industry, to select the plaintiff for a personal communications services licence. The plaintiff moved successfully for an order substituting M for the person chosen by the Attorney General as his representative for examinations for discovery. That order was not appealed. The plaintiff then brought an order fixing dates for the examination for discovery of M. The motion judge ordered that M attend for examination for discovery no later than the 15th day after the commencement of the Summer Recess of the Parliament of Canada in 2003. The motion judge accepted that the right not to attend as a witness is a parliamentary privilege, but did not accept that the privilege applied throughout the legislative session and extended 40 days after the prorogation or dissolution of a session of Parliament and 40 days before the commencement of a new session. Instead, she held that the privilege applied only while Parliament was actually sitting and for the first 14 days of an adjournment of Parliament. M and the Attorney General appealed.

Held, the appeal should be allowed.

It is clear from the preamble and s. 18 of the Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3 and ss. 4 and 5 of the Parliament of Canada Act, R.S.C. 1985, c. P-1, that Canadian parliamentarians enjoy certain privileges, immunities and powers, and that the scope and contents of those privileges, immunities and powers must be measured against those held, enjoyed and exercised by the United Kingdom, especially in 1867. As the motion judge acknowledged, the right not to attend as a witness is one of the recognized parliamentary privileges. That privilege endures while Parliament is in session. The motion judge's conclusion that "in session" means "sitting" was inconsistent with the definitions of "sitting" and "in session" in the Standing Orders of the House of Commons, the overwhelming weight of scholarly authority, the leading Canadian case authorities and the considered formal opinions of two Speakers of the House of Commons. The Standing Orders define "session" as "one of the fundamental time periods into which a Parliament is divided, usually consisting of a number of separate sittings. Sessions are begun by a Speech from the Throne and are ended by prorogation or dissolution of the Parliament." "Sitting" is defined as "a meeting of the House of Commons within a session". The privilege in question extends throughout a parliamentary session, and not merely when Parliament is sitting. At the time of [page162] the motion judge's decision, the second Session of the 37th Parliament continued. Accordingly, M's privilege was operative.

In 1867, the parliamentary privilege relating to testimonial immunity continued for 40 days after a parliamentary session and recommenced 40 days before a new session. There has been no development in constitutional or statute law since 1867 that would displace that conclusion. The state of the law in Canada is that a Member of Parliament is immune from testifying as a witness in a court proceeding during a parliamentary session for 40 days after its conclusion and for 40 days before the commencement of a new session. Whether the privilege so defined is necessary to the proper functioning of Parliament today is a question for Parliament, not the courts. Once a court has determined that a parliamentary privilege exists and has ascertained its definition and scope, its role ends. Any change to the privilege must come through Parliament enacting a law pursuant to its power under s. 18 of the Constitution Act, 1867 and s. 4 of the Parliament of Canada Act.

APPEAL from an order setting a time for attendance for examination for discovery.

Ainsworth Lumber Co. Ltd. v. Canada (Attorney General) (2003), 226 D.L.R. (4th) 93, [2003] 7 W.W.R. 715, 2003 BCCA 239, 14 B.C.L.R. (4th) 302, [2003] B.C.J. No. 901 (QL) (C.A.); New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), 1993 153 (SCC), [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; Samson Indian Nation and Band v. Canada (2003), 238 F.T.R. 68, [2003] F.C.J. No. 1238 (QL), 2003 FC 975 (T.D.), consd Other cases referred to Harvey v. New Brunswick (Attorney General), 1996 163 (SCC), [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; Ontario (Speaker of the Legislative Assembly) v. Ontario (Human Rights Commission) (2001), 2001 8549 (ON CA), 54 O.R. (3d) 595, 201 D.L.R. (4th) 698, 85 C.R.R. (2d) 170 (C.A.), affg (2000), 2000 30135 (ON SCDC), 196 D.L.R. (4th) 136 (Ont. Div. Ct.); R. v. Brown (2001), 2001 PESCTD 6, 197 Nfld. & P.E.I.R. 285, 591 A.P.R. 285 (S.C.T.D.); R. v. Gamble (1852), 9 U.C.R. 546 (Can.) Statutes referred to Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5"preamble", s. 18 Parliament of Canada Act, R.S.C. 1985, c. P-1, ss. 4, 5 Parliamentary Privilege Act, 1770 (U.K.), 10 Geo. III, c. 50, preamble Authorities referred to Blackstone, W., Commentaries on the Laws of England (Oxford: Clarendon Press, 1765) Boulton, C.J., Erskine May's Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 21st ed. (London: Butterworths, 1989) Bourinot, J.G., Parliamentary Procedure and Practice in the Dominion of Canada, 4th ed. by T.B. Flint (Toronto: Canada Law Book Company, 1916) Dawson, W.F., Procedure in the Canadian House of Commons (Toronto: University of Toronto Press, 1962) House of Commons Debates (19 May 1989) at 1953 (Hon. John Fraser) House of Commons Debates (26 May 2003) at 6413 (Hon. Don Boudria) House of Commons Debates (26 May 2003) at 6413 (Hon. Peter Milliken) Maingot, J.P., Parliamentary Privilege in Canada, 2nd ed. (Ottawa: House of Commons and McGill-Queen's University Press, 1997) Marleau, R., and C. Montpetit, House of Commons Procedure and Practice (Montréal/Toronto: Chenelière/McGraw-Hill, 2000) [page163] Ward, N., Dawson's The Government of Canada, 6th ed. (Toronto: University of Toronto Press, 1987) Wittke, C."The History of English Parliamentary Privilege" (1921), 266 Ohio State University Bulletin 9

Barbara A. McIsaac, Q.C. and Gregory S. Tzemenakis, for Hon. John Manley. Peter F.C. Howard and Eliot N. Kolers, for Telezone Inc. Paul J. Evraire, Q.C. and Karen Lovell, for Attorney General of Canada.

The judgment of the court was delivered by

MACPHERSON J.A.: --

A. Introduction

[1] Throughout most of the year 2003, the Honourable John Manley was one of the most important and busiest public figures in Canada. He was, until December 12 of that year, the Deputy Prime Minister of Canada and Minister of Finance.

[2] In a judgment dated May 14, 2003, Backhouse J. ordered Mr. Manley to appear and testify as a witness in a civil suit "no sooner than the 15th day after the commencement of the Summer Recess of the Parliament of Canada in 2003".

[3] Mr. Manley and the Attorney General of Canada appeal the motion judge's order. They contend that her order is inconsistent with a centuries-old parliamentary privilege that protects Members of Parliament from testifying in a civil proceeding while Parliament is in session, for 40 days after the end of a session, and for 40 days before the commencement of a new session. Crucial to the appellants' position is the assertion that this privilege continues throughout the summer recess; accordingly, they submit that the motion judge erred when she said:

[W]hile the House is not sitting, no privilege exists. It cannot reasonably be said that the House is sitting while a 3 month Summer Recess is underway.

B. Facts

(1) The parties and the events

[4] In June 1995, Industry Canada made a call for personal communications services ("PCS") licence applications. Telezone Inc. ("Telezone") submitted an application. Industry Canada officials [page164] made recommendations to the Minister of Industry as to which applicants should receive PCS licences.

[5] Mr. Manley was then Minister of Industry. For the particular class of licence sought by Telezone, he selected two applicants. Telezone was not chosen.

[6] Telezone commenced an action against the Attorney General of Canada relating to the Minister's decision, seeking damages for negligence, breach of contract and unjust enrichment.

[7] The Attorney General designated Michael Connolly, an Industry Canada employee, as his representative for examinations for discovery in the civil action. Telezone moved for an order substituting Mr. Manley for Mr. Connolly as the Attorney General's discovery representative. Backhouse J. granted this motion on December 3, 2002. Importantly, for the purpose of these appeals, neither the Attorney General nor Mr. Manley appealed Backhouse J.'s order of December 3, 2002. Accordingly, there is no issue as to whether Mr. Manley is subject to examination for discovery in Telezone's civil action; he is. The only question is when Mr. Manley will attend for examination for discovery.

[8] The correspondence between the parties in early 2003 failed to set a date for Mr. Manley's appearance. By letter dated February 6, 2003, the Attorney General advised Telezone that "the current session of Parliament sits until it is prorogued, some time in the Spring of 2004. Parliamentary Privilege extends throughout the sitting and for 40 days after the session is prorogued." In a subsequent letter, on February 19, 2003, the Attorney General informed Telezone that "the Deputy Prime Minister is invoking Parliamentary Privilege."

(2) The motion

[9] Telezone brought a motion for an order fixing dates for the examination for discovery of Mr. Manley.

[10] On May 14, 2003, the motion judge ordered that Mr. Manley attend for examination for discovery no sooner that the 15th day after the commencement of the Summer Recess of the Parliament of Canada in 2003. In her reasons, the motion judge accepted that "[t]he right not to attend as a witness is one of the recognized parliamentary privileges." However, she did not accept that the privilege applied throughout the legislative session and extended 40 days after the prorogation or dissolution of a session of Parliament and 40 days before the commencement of a new session. Instead, the motion judge held that the privilege applied only while Parliament was actually sitting and for the first 14 days of an adjournment of Parliament. [page165]

[11] The Attorney General and Mr. Manley, in his capacity as Member of Parliament for Ottawa South, each appealed the motion judge's order. On June 16, 2003, Charron J.A. combined the two appeals and stayed the order under appeal pending the resolution of the appeals.

C. Issue

[12] The issue on appeal is: did the motion judge err by defining the scope of the privilege of testimonial immunity of Members of Parliament as "the period that Parliament is actually sitting and for 14 days after it adjourns"?

D. Analysis

(1) General principles

[13] The Parliament of Canada and its members have certain powers, privileges and immunities which ensure the proper and unimpeded functioning of Parliament. In the leading text, Parliamentary Privilege in Canada, 2nd ed. (Ottawa: House of Commons and McGill-Queen's University Press, 1997), J.P. Maingot, Q.C., offers this general definition of the doctrine of parliamentary privilege, at p. 12:

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 these 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 of each legislature to enforce that immunity and to protect its integrity.

[14] In Canada, parliamentary privilege is part of the general public law of the land: see Maingot, Parliamentary Privilege in Canada, at p. 1. The privileges and the immunities of the Parliament of Canada and its members are rooted in the Constitution and in statute law.

[15] At a general constitutional level, parliamentary privileges are part of the Canadian constitution by virtue of the preamble of the Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, which provides that Canada is to have a "Constitution similar in Principle to that of the United Kingdom". The link between the preamble and parliamentary privilege was made by the Supreme Court of Canada in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), 1993 153 (SCC), [1993] 1 S.C.R. 319, 100 D.L.R. (4th) 212 ("New Brunswick Broadcasting"), in particular in the judgment of McLachlin J., at p. 377 S.C.R.: [page166]

It seems indisputable that the inherent privileges of Canada's legislative bodies, those "certain very moderate privileges which were necessary for the maintenance of order and discipline during the performance of their duties" (see R. M. Dawson, The Government of Canada (5th ed. 1970), at p. 338), fall within the group of principles constitutionalized by virtue of this preamble.

[16] Still on the constitutional plane, s. 18 of the Constitution Act, 1867 deals specifically with the subject of parliamentary privilege:

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

[17] Turning to statute law, acting on the authority provided by s. 18 of the Constitution Act, 1867, Parliament addressed the subject of parliamentary privilege in ss. 4 and 5 of the Parliament of Canada Act, R.S.C. 1985, c. P-1:

4. The Senate and the House of Commons, respectively, and the members thereof hold, enjoy and exercise

(a) such and the like privileges, immunities and powers as, at the time of the passing of the Constitution Act, 1867, were held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom and by the members thereof, in so far as is consistent with that Act; and

(b) such privileges, immunities and powers as are defined by Act of the Parliament of Canada, not exceeding those, at the time of the passing of the Act, held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom and by the members thereof.

5. The privileges, immunities and powers held, enjoyed and exercised in accordance with section 4 are part of the general and public law of Canada and it is not necessary to plead them but they shall, in all courts in Canada, and by and before all judges, be taken notice of judicially.

[18] Two things are clear from the preamble and s. 18 of the Constitution Act, 1867 and ss. 4 and 5 of the Parliament of Canada Act: (1) Canadian parliamentarians enjoy certain privileges, immunities and powers; and (2) the scope and contents of those privileges, immunities and powers must be measured against those "held, enjoyed and exercised" by the United Kingdom, especially in 1867.

[19] In Canada, there are several parliamentary privileges applying to and protecting parliamentarians. The purpose and [page168] contents of the privileges are well summarized in Maingot, Parliamentary Privilege in Canada, supra, at p. 15:

Corporate Privileges and Individual Privileges

Individual privileges of Members of the Senate and House of Commons are the absolute immunity they require to perform their parliamentary work; corporate privileges are the necessary means for each House to effectively discharge its functions. Thus a breach of any privilege constitutes a contempt of the House rather than of the Member, because the Member would not require the privileges if he or she was not a Member. Nevertheless, such individual privileges as freedom of speech are considered to belong primarily to the Member and only indirectly to the House itself. The individual privileges are freedom of speech, freedom from arrest in civil process, exemption from jury service, and the privilege relating to Members summoned as witnesses. While there is the general freedom from being molested while attending to his work in the House, this amounts to a contempt of the House.

The corporate or collective privileges of the Senate and of the House of Commons are the power to punish for contempt (or its penal jurisdiction); the right to regulate its own constitution; the right to regulate its own internal affairs free from interference, which includes the right to discipline its own Members; the right to institute inquiries and call for witnesses (persons, papers and records): and the right to settle its own code of procedure.

Generally speaking, it will be seen that the powers, rights, immunities, and privileges of both the elected assembly and its members exist to enable the members to attend the assembly without disturbance, to enable the assembly to perform its functions, and to guard the functions of Parliament undisturbed.

(Emphasis added)

See also: Sir J.G. Bourinot, Parliamentary Procedure and Practice in the Dominion of Canada, 4th ed. by T.B. Flint (Toronto: Canada Law Book Company, 1916), at pp. 37-46.

[20] In the present case, the motion judge held [at para. 3] that "[t]he right not to attend as a witness is one of the recognized parliamentary privileges." In light of the general principles I have discussed, this conclusion is clearly correct. The real question, to which I now turn, is the definition or scope of this privilege in the context of the Parliament of Canada.

(2) Session and sitting

[21] The motion judge, having identified the right not to attend as a witness as a recognized privilege, went on to frame the issue in terms of whether the privilege included "the right to refuse to be examined as a witness in a Court proceeding during the Summer Recess of Parliament". She found that it did not.

[22] The motion judge acknowledged that, according to Maingot, the privilege endured while Parliament was "in session". However, relying on a reference to "the sitting of the House" in [page168] Erskine May's Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 21st ed., C.J. Boulton et al. (London: Butterworths, 1989), at p. 100, a dictionary definition of "session" ("not on vacation"), and the preamble to the Parliamentary Privilege Act, 1770 (U.K.), 10 Geo. III, c. 50, the motion judge concluded that "'in session' must mean 'sitting'" and that therefore Mr. Manley would have no such privilege during the summer recess.

[23] With respect, I disagree with the motion judge's conclusion. In my view, her analysis is inconsistent with the definitions of "sitting" and "session" in the Standing Orders of the House of Commons, the overwhelming weight of scholarly authority, the leading Canadian case authorities and the considered formal opinions of two Speakers of the House of Commons, including the opinion of the current Speaker, the Honourable Peter Milliken.

[24] First, the Standing Orders of the House of Commons draw a clear distinction between "session" and "sitting":

Session. One of the fundamental time periods into which a Parliament is divided, usually consisting of a number of separate sittings. Sessions are begun by a Speech from the Throne and are ended by prorogation or dissolution of the Parliament. Distinguish: sitting.

Sitting. A meeting of the House of Commons within a session. A sitting may last for only a matter of minutes or may extend over several calendar days. Compare: session.

[25] Second, none of the leading authors on the broad topic of parliamentary privileges suggests that any of the privileges exists only while Parliament is sitting. In Parliamentary Privilege in Canada, supra, Maingot writes, at p. 158:

Since Parliament has the paramount right to the attendance and service of its Members, any call for the Member to attend elsewhere while the House is in session is not a call that need be answered. Thus the Member is not compelled to attend as a witness before any court or tribunal in Canada while the House is in session, whether in a criminal, civil, or military matter.

See also: R. Marleau and C. Montpetit, House of Commons Procedure and Practice (Montréal/Toronto: Chenelière/McGraw- Hill, 2000), at p. 81; N. Ward, Dawson's The Government of Canada, 6th ed. (Toronto: University of Toronto Press, 1987), at p. 115; Bourinot, Parliamentary Procedure and Practice in the Dominion of Canada, supra, at pp. 45-46; and W.F. Dawson, Procedure in the Canadian House of Commons (Toronto: University of Toronto Press, 1962), at p. 30.

[26] Moreover, the passage from Erskine May's Treatise on the Law, Privileges, Proceedings and Usage of Parliament relied on by the motion judge does not support her conclusion. Although the [page169] author uses the word "sitting" in a single paragraph, it is clear from the authorities cited in that paragraph, which explicitly refer to "session", and indeed from the book as a whole, that he finds that the privilege extends throughout a parliamentary session.

[27] Third, the parliamentary privilege of testimonial immunity has been considered in three recent Canadian cases, involving former Prime Minister Jean Chrétien, former Minister of Finance Paul Martin and former Minister of Indian Affairs and Northern Development, Robert Nault, respectively. In those cases, the courts defined the scope of the privilege in terms of a session of Parliament: see R. v. Brown (2001), 2001 PESCTD 6, 591 A.P.R. 285, 197 Nfld. & P.E.I.R. 285 (P.E.I.S.C.T.D.) at p. 290; Ainsworth Lumber Co. v. Canada (Attorney General), 2003 BCCA 239, [2003] B.C.J. No. 901 (QL), 226 D.L.R. (4th) 93 (C.A.), at para. 45, leave to appeal to S.C.C. refused [2003] S.C.C.A. No. 296 ("Ainsworth Lumber"); and Samson Indian Nation and Band v. Canada, 2003 FC 975, [2003] F.C.J. No. 1238 (QL), 238 F.T.R. 68 (T.D.) at para. 43 ("Samson Indian Nation").

[28] In Ainsworth Lumber, Low J.A. responded to the argument that "in session" must mean "sitting", at para. 56:

When Parliament is in session it can be called to sit at any time. When it is in session, it is assembled, whether actually sitting or not. As shall be seen, none of the writings on the broad topic of parliamentary privileges suggests that any privilege exists only while Parliament is sitting. In light of this, I think it puts a strain on the words in the preamble quoted above [from the Parliamentary Privilege Act, 1770 (U.K.)] to interpret them to mean that each time Parliament rises from a sitting, parliamentary privileges are suspended until Parliament actually sits again. The business of Parliament and the duties of parliamentarians are not at rest just because Parliament, during a session, is not physically sitting.

I agree with this analysis.

[29] Finally, I note that two Speakers of the House of Commons have stated, in formal rulings delivered in the Commons, that the parliamentary privilege of testimonial immunity applies throughout a parliamentary session. In 1989, Speaker John Fraser described the privilege as follows:

Let me state for the record that the right of a Member of Parliament to refuse to attend court as a witness during a parliamentary session and during the 40 days preceding and following a parliamentary session is an undoubted and inalienable right supported by a host of precedents.

See: House of Commons Debates (19 May 1989) at p. 1953.

[30] Recently, the current Speaker of the House of Commons, the Honourable Peter Milliken, made a ruling after the government House leader brought the decisions of the British Columbia Court of Appeal in Ainsworth Lumber and the motion judge in the present case to his attention. After a comprehensive review of [page170] the leading authorities on parliamentary privilege, the Speaker concluded that "Speaker Fraser correctly defended this privilege, and it is my duty and privilege to do so again today." See: House of Commons Debates (26 May 2003) at p. 6413.

[31] Referring to the decision of the motion judge in the present case, Speaker Milliken said:

The Ontario court did not see the distinction between a session and a sitting of the House and seemed to believe that between sittings, that is, during adjournment periods, members of Parliament were, if you like, on holiday. The court relied on a dictionary definition of "in session" which included the meaning "not on vacation" and the judge emphasized this by underlining. From this, the judge felt members of Parliament were available for other matters, such as court appearances. The court's confusion of a session with a sitting, on the one hand, and its idea of a parliamentary holiday, on the other, are clearly contrary to the parliamentary authorities.

The House requires the availability of its members throughout an entire session as well as for the traditional 40-day period before and after the start and end of a session. Erskine May points out that the immunity from subpoenas is based on the same principle as other personal privileges; that is, the paramount right of Parliament to the attendance and service of its members.

See: House of Commons Debates (26 May 2003) at p. 6413.

[32] The views of the two Speakers are not binding on this court. However, given the experience and high reputation of these two parliamentarians, and in the context of a legal dispute that centres on the definition of a parliamentary privilege, it seems obvious that their careful and considered rulings should be accorded substantial respect. I do so.

[33] For these reasons, I conclude that the motion judge erred by confining the parliamentary privilege of testimonial immunity to the sittings of Parliament. The proper scope of the privilege is parliamentary sessions, not sittings. At the time of the motion judge's decision, the second Session of the 37th Parliament continued. Accordingly, Mr. Manley's privilege was operative.

(3) The temporal reach of the privilege outside a parliamentary session

[34] The motion judge concluded that the parliamentary privilege of testimonial immunity continued for 14 days into the summer recess of Parliament. In reaching this conclusion, she relied on the preamble of the Parliamentary Privilege Act, 1770 (U.K.).

[35] In three other recent cases, Canadian courts have considered the temporal reach of the privilege outside a parliamentary session. In R. v. Brown, supra, at p. 290 Nfld., MacDonald C.J.T.D. concluded that the "immunity to attend as a witness before a court of law in relation to a criminal matter extends forty [page171] days before and after a session of Parliament, and forty days after dissolution." In Ainsworth Lumber, supra, the British Columbia Court of Appeal concluded that the privilege did not extend for any period of time beyond the parliamentary session. In Samson Indian Nation, supra, Teitelbaum J. held that the privilege extended 14 days after a session and 14 days before the commencement of a new session.

[36] Of these three options, the one with the least support in the literature on parliamentary practice and privileges is the 14-day extension adopted by the motion judge and the court in Samson Indian Nation.

[37] The 1770 U.K. law relied upon by the motion judge dealt only with the historical privilege prohibiting parliamentarians from being sued. I agree with Low J.A. who said, in Ainsworth Lumber, at para. 57: "I view the preamble of the 1770 statute as being an authoritative description of the parliamentary privilege with which the statute is concerned." Teitelbaum J. made a similar observation, at para. 45, in Samson Indian Nation.

[38] In Samson Indian Nation, Teitelbaum J. explained his adoption of the 14-day period at para. 45:

With advances in efficiency of modes of travel and communication, what appears to be, according to some sources, the old rule of forty days before and after a parliamentary session is no longer necessary. However, some time is needed to either wrap up and conclude the business of a session, or to prepare for the commencement of one. A reasonable period of time, therefore, is fourteen days; thus I find that the privilege extends beyond a session, to include fourteen days before a session convenes and fourteen days after a session ends.

(Emphasis added)

[39] With respect, I do not agree with this analysis. For reasons that I will develop in detail in the next section, the necessity inquiry is strictly limited to identifying whether a particular privilege exists. It does not permit a court to modify the privilege in light of changing social conditions: see New Brunswick Broadcasting, supra, at p. 383 S.C.R.

[40] With respect to the other two options, I have reviewed the reasons of the courts in R. v. Brown and Ainsworth Lumber with particular attention to the authorities considered in those reasons. I am mindful that the Supreme Court of Canada did not grant leave to appeal to the Attorney General of Canada and Mr. Martin in the latter case. However, that fact is not determinative of this appeal because the issue on a leave application is whether the proposed appeal presents an issue of national importance, not whether the decision appealed from is correct. [page172]

[41] In the end, I think the better view is that in 1867, the parliamentary privilege relating to testimonial immunity continued for 40 days after a parliamentary session and recommenced 40 days before a new session. Moreover, I do not see any development in constitutional or statute law since 1867 that would displace this conclusion. In reaching this conclusion, I rely on two sources -- the scholarly literature relating to this parliamentary privilege and the formal rulings of two Speakers of the House of Commons.

[42] The weight of scholarly opinion tells in favour of the 40-day formulation. In Parliamentary Privilege in Canada, supra, Joseph Maingot states, at p. 155:

In Canada, the case of R. v. Gamble and Boulton [(1852), 9 U.C.R. 546 (Can.)] is authority for the proposition that the duration of the privilege is the same as it is in the U. K.: 40 days before and after a session, and 40 days after a dissolution.

See also: W. Blackstone, Commentaries on the Laws of England (Oxford: Clarendon Press, 1765), at p. 160; and C. Wittke"The History of English Parliamentary Privilege" (1921), 26 Ohio State University Bulletin 9, at 52.

[43] In addition, I am again inclined to accord respect, and attach weight to the formal rulings of Speakers Fraser and Milliken. They are experts on parliamentary practice, procedures and privileges. In careful rulings, both concluded that the scope of the privilege of testimonial immunity included the entire session of Parliament, the 40 days that follow a session and the 40 days that precede a session.

[44] For these reasons, I conclude that the motion judge erred by holding that the parliamentary privilege relating to testimonial immunity extends for only 14 days after a sitting of Parliament. It continues for 40 days after a session of Parliament and recommences 40 days before a new session.

(4) Necessity

[45] If the parliamentary privilege is, as I think it is, that a Member of Parliament is immune from testifying as a witness in a court proceeding during a parliamentary session for 40 days after its conclusion and for 40 days before the commencement of a new session, the respondent counters with a "necessity" argument. The respondent contends that the court must review the parliamentary privilege as so defined and determine whether it is necessary to the proper functioning of Parliament. Moreover, the respondent submits that the temporal context for this inquiry is today, not the time at which the privilege was created nor the time it may have arisen in Canada. [page173]

[46] The respondent anchors its "necessity" argument in two passages from McLachlin J.'s judgment in New Brunswick Broadcasting, supra, at pp. 384 and 387 S.C.R.:

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.

[I]t behooves us to ask anew: in the Canadian context of 1992, is the right to exclude strangers necessary to the functioning of our legislative bodies?

[47] In its factum, the respondent provides a factual analysis concerning the practical effect of the "session plus 40 days before and after" definition of the privilege -- in the last 20 years there would have been only four brief windows totalling 138 days during which parliamentarians would have been compellable witnesses in civil proceedings. The respondent asserts that a privilege with such a sweeping scope is not necessary to the proper functioning of Parliament.

[48] In my view, the respondent's submission misconceives both the nature of the necessity inquiry in which a court might engage and the temporal context of that inquiry.

[49] With respect to the nature of the privilege, the inquiry into whether a particular privilege claimed by Parliament is "necessary" is a limited one. As McLachlin J. said in New Brunswick Broadcasting, 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.

See also: Harvey v. New Brunswick (Attorney General), 1996 163 (SCC), [1996] 2 S.C.R. 876, 137 D.L.R. (4th) 142, at p. 913 S.C.R., per McLachlin J.; and Ontario (Speaker of the Legislative Assembly) v. Ontario (Human Rights Commission) (2001), 2001 8549 (ON CA), 54 O.R. (3d) 595, 201 D.L.R. (4th) 698 (C.A.), at p. 603 O.R.

[50] With respect to the temporal context of the necessity inquiry, for the federal Parliament it is clearly July 1, 1867, by virtue of s. 18 of the Constitution Act, 1867 and s. 4 of the Parliament of Canada Act. These constitutional and statutory provisions envisage the possibility of a different time period being relevant, but only if Parliament enacts a law dealing with a privilege sometime after 1867. That has not happened with respect to the privilege relating to testimonial immunity. [page174]

[51] In summary, I would respond to the respondent's necessity argument in this fashion. Was there a recognized and necessary category of parliamentary privilege relating to testimonial immunity of members of Parliament in the United Kingdom in 1867? Yes. What was the temporal scope of the privilege? It applied throughout parliamentary sessions and the 40 days before and after each session. Is the privilege so defined necessary to the proper functioning of Parliament today? This is a question for Parliament, not the courts. Once a court has determined that a parliamentary privilege exists and has ascertained its definition or scope, its role ends. The reason for this limited role was well explained by McLachlin J. in New Brunswick Broadcasting, at pp. 387-88 S.C.R.:

But, it is argued, it is not necessary that the right be absolute. The courts should be given the power to monitor the exercise of this power to ensure that only those strangers who are truly disruptive are excluded. In my view, a system of court review, quite apart from the constitutional question of what right the courts have to interfere in the internal process of another branch of government, would bring its own problems. The ruling of the Assembly would not be final. The Assembly would find itself caught up in legal proceedings and appeals about what is disruptive and not disruptive. This in itself might impair the proper functioning of the chamber. This lends support to the venerable and accepted proposition that it is necessary to the proper functioning of a legislative assembly modeled on the Parliamentary system of the United Kingdom that the Assembly possess the absolute right to exclude strangers from its proceedings, when it deems them to be disruptive of its efficacious operation.

[52] In my view, this reasoning is equally applicable to the parliamentary privilege in issue in this appeal. Any change to the privilege must come through Parliament enacting a law pursuant to its power under s. 18 of the Constitution Act, 1867 and s. 4 of the Parliament of Canada Act. In that vein, I note the Government House Leader moved, and the House of Commons passed this motion immediately after Speaker Milliken's ruling:

That the question of the immunity of Members of the House from being compelled to attend court during, immediately before and immediately after a Session of Parliament be referred to the Standing Committee on Procedure and House Affairs.

See: House of Commons Debates (26 May 2003) at p. 6413.

E. Disposition

[53] I would allow the appeals, set aside the order of the motion judge, and declare that the parliamentary privilege of a Member of Parliament not to attend as a witness in a civil action applies throughout a session of Parliament, and extends 40 days after [page175] the prorogation or dissolution of Parliament and 40 days before the commencement of a new session.

[54] I would award the appellants their costs of the appeals and the stay motion before Charron J.A. fixed at $25,000 each, inclusive of disbursements and GST.

Appeal allowed.