CITATION: Jama v. The Speaker, 2024 ONSC 1264
DIVISIONAL COURT FILE NO.: 652/23 DATE: 20240523
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Backhouse, Matheson and Davies JJ.
BETWEEN:
SARAH JAMA
Applicant
– and –
THE SPEAKER FOR AND ON BEHALF OF THE LEGISLATIVE ASSEMBLY OF ONTARIO, THE LEGISLATIVE ASSEMBLY OF ONTARIO, THE HONOURABLE TED ARNOT IN HIS CAPACITY AS SPEAKER, THE HONOURABLE PAUL CALANDRA, THE ATTORNEY GENERAL OF ONTARIO, AND HIS MAJESTY THE KING IN RIGHT OF ONTARIO
Respondents
CANADIAN CIVIL LIBERTIES ASSOCIATION, and the group comprised of the INDEPENDENT JEWISH VOICES CANADA, THE JEWISH FACULTY NETWORK AND THE ARAB CANADIAN LAWYERS ASSOCIATION
Interveners
David Baker, Wade Poziomka and Daniel Mulroy, for the Applicant/Responding Party to the Motions
Maxime Faille and Aaron Christoff, for the Speaker for and on behalf of the Legislative Assembly of Ontario, the Legislative Assembly of Ontario and Ted Arnot in his capacity as Speaker, Respondents/Moving Parties
S. Zachary Green and Andrea M. Bolieiro, for His Majesty the King in Right of Ontario, the Attorney General of Ontario and the Honourable Paul Calandra, Respondents/Moving Parties
Tim Gleason and Amani Rauff, for the intervenor Canadian Civil Liberties Association
Shane Martinez, for the intervenor group comprised of the Independent Jewish Voices, the Jewish Faculty Network and the Canadian Lawyers Association
HEARD at Toronto: February 22, 2024, followed by written submissions, May 3, 2024
THE COURT:
[1] The respondents move to strike out or dismiss this application for judicial review for want of jurisdiction, on the basis of parliamentary privilege. The application challenges a motion put forward in the Legislative Assembly of Ontario that, after a vote, resulted in a censure decision by the Legislative Assembly.
[2] The law is well-settled. Courts have no jurisdiction to review matters that fall within parliamentary privilege, including review under the Charter of Rights and Freedoms. As a matter of the constitutional separation of powers, those matters are within the exclusive purview of the Legislative Assembly.
[3] The relief sought in this application is precluded by parliamentary privilege, including the categories of the privilege regarding control over debates and proceedings in the Legislative Assembly and disciplinary authority over Members of the Legislative Assembly. This Court has no jurisdiction for the reasons set out below. The applicant’s proper course of action was to pursue a remedy at the Legislative Assembly.
Brief Background
[4] The applicant is an elected Member of the Provincial Parliament (MPP) for the riding of Hamilton Centre. The applicant seeks to quash a censure decision of the Legislative Assembly of Ontario. The censure arose from a motion (Motion 19) brought by the respondent Paul Calandra, MPP in the Legislative Assembly of Ontario. The respondent Speaker of the Legislative Assembly permitted the motion to proceed. After debate, the motion was put to a vote and passed.
[5] The applicant commenced this application for judicial review, seeking the following substantive relief:
(i) an order quashing the decision of the Speaker to allow Motion 19 to be moved and voted on in the Legislative Assembly;
(ii) an order requiring that the Speaker rule Motion 19 out of order;
(iii) an order quashing the censure by the Legislative Assembly; and,
(iv) a declaration that the measures imposed in the Legislative Assembly’s censure decision are unconstitutional.
[6] The motions before this Court primarily rely on r. 21.01(1)(b) and r. 21.01(3)(a) of the Rules of Civil Procedure. R.R.O. 1990, Reg. 194. All agree that for the purposes of the motions, the facts alleged in the amended notice of application are presumed to be true. There is no other evidence before the Court. The below account of the facts is taken from the amended notice of application.
Motion 19
[7] The applicant expressed her views about the Israeli-Palestinian conflict both prior and after she was elected an MPP. On October 10, 2023, she posted the following on X (formerly Twitter):
A CALL FOR AN IMMEDIATE CEASEFIRE:
The generations long occupation of Palestine, as explained by Michael Lynk, the UN Special Rapporteur for the Situation of Human Rights in the Palestinian Territory, is apartheid, i.e., “a political regime intentionally prioritizing fundamental political, legal, and social rights to one group over another in the same space on the basis of racial-national-ethnic identity”. We are seeing this definition of apartheid in real time through the continued violation of human rights in Gaza through the use of white phosphorous chemicals, the withholding of access to food, fuel, electricity and water, and the destruction of the only exit from Gaza that isn’t controlled by the State of Israel – the Rafah boarder [sic].
Especially with this context in mind, the news coming out of Israel and Palestine is deeply concerning. For 75 years, violence and retaliation rooted in settler colonialism have taken the lives of far too many innocent people. I call for an immediate ceasefire and de-escalation. We must look to the solution to this endless cycle of death and destruction: end all occupation of Palestinian land and end apartheid. Canada must hold true to its history of peacemaking, and refrain from military intervention. My heart genuinely goes out to all those impacted by this on-going violence.
[8] The above statement was posted with the caption: “I’m reflecting on my role as a politician who is participating in this settler colonial system, and I ask that all politicians do the same. #FreePalestine”.
[9] The following day, the applicant posted, again on X, as follows:
I heard many voices yesterday raising concerns about my post. I hear them – and above all, I understand the pain that many Jewish and Israeli Canadians, including my own constituents, must be feeling. I apologize. To be clear, I unequivocally condemn terrorism by Hamas on thousands of Israeli civilians. I also believe that Israel’s bombardment and siege on civilians in Gaza, as was also noted by the United Nations, is wrong. As a member of the Ontario NDP caucus, I stand by the position of our federal party, and believe that violence against civilians is never justified, and that there is no military solution to this conflict.
[10] That day, the Premier of Ontario posted on X saying that the applicant’s response to the events of October 7, 2023 was anti-Semitic and that she condoned rape and murder of Israeli civilians. When her party declined to request that the Premier’s post be taken down and an apology be made to her, the applicant retained counsel and issued a libel notice. There was no retraction.
[11] On October 18, 2023, Paul Calandra, Government House Leader, moved Motion 19 in the Legislative Assembly. Motion 19, as amended, read as follows:
[T]hat this House expresses its disapproval of, and dissociates itself from, continued disreputable conduct by the Member for Hamilton Centre, most specifically her use of social media to make anti-Semitic and discriminatory statements related to the existence of the State of Israel and its defence against Hamas terrorists; and
That this House demands the Member desist from further conduct that is inappropriate and unbecoming of a Member of the Legislative Assembly of Ontario; and
That the Speaker is authorized to not recognize the Member for Hamilton Centre in the House until the Member retracts and deletes her statements on social media and makes an apology in her place in the House.
[12] The applicant disputes that she called for the elimination of the state of Israel. The applicant also objects because the Legislative Assembly did not conduct an investigation into whether she had done so or whether she had made the statement attributed to her by the Premier.
[13] The applicant’s party instructed her to stay away during the debate of Motion 19 in the Legislative Assembly and her party did not permit her to issue a written statement. Her party refused to challenge the untrue allegations made against her or ask the Speaker to rule the motion out of order. The applicant made a written request of the Speaker, as follows:
On the advice of my legal counsel I am asking the Speaker to adjourn the vote and seek advice on whether the motion is out of order as curtailing Constitutionally protected political speech and imposing sanctions not properly contained in a censure motion. While my leader will not permit me to raise an objection to the government’s motion as a matter of personal privilege in the Legislature, I do object and am putting the Speaker on notice of my objection.
Before lodging a constitutional challenge, I am obliged to exhaust my remedies in the Legislature. My leader has determined that I must register my legal objection to the motion by issuing a statement outside the House. I am therefore requesting the Premier adjourn the debate and the vote on this motion so that he and his government can seek legal advice on its legality and constitutionality. Properly advised, neither he nor the members of his government could vote to censure me.
[14] The Speaker received the above request but did not make the requested ruling. The motion was debated in the Legislative Assembly. The government MPPs voted in favour of the censure. The other MPPs either abstained or opposed it. The motion passed.
[15] Although the applicant retained her right to sit in the Legislative Assembly, to participate in committees, and to vote, she has not been recognized in the Legislative Assembly since the censure.
[16] The applicant commenced this application for judicial review, seeking to quash the decision of the Speaker to permit the motion to be moved and voted on, seeking to quash the censure of the Legislative Assembly, and seeking that the court order the Speaker to rule Motion 19 out of order.
Motions before the Court
[17] The respondents have moved to strike out or dismiss the application for judicial review on several grounds including under r. 21.01(1)(b) and r. 21.01(3)(a) of the Rules of Civil Procedure. Motions under the above rules are available in applications as well as actions: r. 14.09; Martin v. Ontario, 2004 CarswellOnt 6385 (S.C.), at paras. 8-9.
[18] Under r. 21.01(1)(b) the moving parties must show that it is plain and obvious that the applicant cannot succeed: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45. Under r. 21.03(3)(a) the application may be dismissed because the court has no jurisdiction over the subject matter of the application. The court either has jurisdiction or it does not have jurisdiction: TeleZone Inc. v. Attorney General (Canada), 2008 ONCA 892, at para. 92, aff’d, 2010 SCC 62. The choice of subrule does not affect the outcome of this case.
[19] Where the requirements of the rules are met, it is “beneficial, and indeed critical to the viability of civil justice” that claims that are doomed to fail be disposed of at an early stage in the proceedings: Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, at para. 19.
Issues
[20] The main issue is whether or not the moving parties have shown that the subject matter of this application, including the motion put forward and debated in the Legislative Assembly, and the Legislative Assembly’s censure decision, fall within parliamentary privilege and are therefore outside the jurisdiction of the courts.
[21] Alternative relief is also sought regarding a record of proceedings should the application proceed, with related issues. It is not necessary to address that alternative relief given the outcome on the main issue.
[22] The respondents His Majesty the King, the Attorney General for Ontario and Paul Calandra advanced additional arguments for why the application should not proceed against them. The applicant conceded in oral argument that the application should be dismissed against those respondents. There is therefore no need to address the alternative arguments they raised.
Analysis
[23] The Supreme Court of Canada and the Ontario Court of Appeal have confirmed the long-standing general principles of parliamentary privilege. The Supreme Court summarized key principles in Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667 and Chagnon v. Syndicat de la fonction publique et parapublique du Québec, 2018 SCC 39, [2018] 2 S.C.R. 687. The Court of Appeal has addressed that jurisprudence in the more recent cases of Duffy v. Canada (Senate), 2020 ONCA 536 and Alford v. Canada (Attorney General), 2024 ONCA 306.
[24] As put by the Court of Appeal in Duffy, at para. 1: “Parliamentary privilege has been part of Canadian constitutional law since Confederation. The privilege, which is enjoyed by the Senate, the House of Commons, and the provincial legislative assemblies, helps maintain the constitutional separation of powers between the legislative, executive, and judicial branches of government and thus promotes the "constitutional equilibrium" of Canada's democracy [citing Vaid, at para. 4].”
[25] “In Canada, the principle has its roots in the preamble to our Constitution Act, 1867 which calls for ‘a Constitution similar in Principle to that of the United Kingdom’” where the privilege traces back to at least the U.K. Bill of Rights of 1689: Vaid, at para. 21. In Ontario, these principles are also recognized in s. 52.1(1) of the Legislative Assembly Act, R.S.O. 1990, c. L. 10, which affirms that the Assembly has the same privileges as the House of Commons in the United Kingdom as of 1867.
[26] The privilege is key to maintaining the separation of powers between the legislature and the courts: Vaid, at paras. 4, 20-21. It “does this by shielding certain areas of legislative activity from judicial or executive review, thereby giving ‘the legislative branch of government the autonomy it requires to perform its constitutional functions’": Duffy, at para. 1, citing Chagnon, at para. 1.
[27] “Parliamentary privilege is a rule of curial jurisdiction. The effect of a matter falling within the scope of parliamentary privilege is that its exercise cannot be reviewed by any external body, including a court”: Duffy, at para. 35, citing Vaid, at paras. 29(9), 34; Chagnon, at paras. 19, 24; New Brunswick Broadcasting, 1993 153 (SCC), [1993] 1 S.C.R. 319, at pp. 350, 382-84; Canada (Board of Internal Economy) v. Boulerice, 2019 FCA 33, [2019] 3 F.C.R. 145, at para. 48, leave to appeal refused, [2019] S.C.C.A. No. 103.
[28] When parliamentary privilege applies, it deprives the courts of jurisdiction over the privileged matter and confers an immunity from judicial review: Duffy, at paras. 1, 35 citing Vaid, at para. 4; Chagnon, at para. 19; New Brunswick Broadcasting, at p. 342.
[29] The court cannot review the exercise of parliamentary privilege, even on Charter grounds. Where the privilege applies, the legislative body holding the privilege has the exclusive competence to adjudicate an alleged breach of the Charter: Duffy, at para. 110.
[30] The privilege is “just as much part of our fundamental constitutional arrangements as the Charter itself. One part of the Constitution cannot abrogate another part of the Constitution”: Vaid, at para. 30, citing New Brunswick Broadcasting.
[31] “In matters of privilege, it would lie within the exclusive competence of the legislative assembly itself to consider compliance with human rights and civil liberties”: Vaid, at para. 30.
[32] The privilege recognizes Parliament or the legislature’s “exclusive jurisdiction to deal with complaints within its privileged sphere of activity": Duffy, at para. 35, quoting Vaid, at paras. 4, 29(9) and 30, New Brunswick Broadcasting, at pp. 383-84 and Boulerice, at para. 55.
[33] Parliamentary privilege is not restricted to matters that take place inside the legislature. The legislature also has the power to impose rules and sanctions pertaining to conduct that occurs outside their chambers: Harvey v. New Brunswick (Attorney General), 1996 163 (SCC), [1996] 2 S.C.R. 876, at para. 67-68, per McLachlin J. as she then was; Michaud v. Bissonnette, 2006 QCCA 775, at paras. 33-6, 39, citing Vaid, at paras. 21, 29(10) and New Brunswick Broadcasting, at p. 385; Saunders v. Nunatsiavut Assembly, 2022 NLSC 142; Zundel v. Boudria (1999), 1999 2190 (ON CA), 46 O.R. (3d) 410 (C.A.), at paras.16-18.
[34] The threshold issue for the court is whether the matter falls within the privilege. That is the issue on these motions.
[35] Parliamentary privilege does not extend to everything a legislative assembly might do – it attaches to specific activities: Vaid, at para. 29. The role of the courts is limited to determining the existence and scope of “categories” of parliamentary privilege. Once the court has recognized a category that is privileged, the court has no jurisdiction to deal with the related conduct. The court must withdraw from any further consideration of the matter: Duffy, at para. 1; Vaid, at para. 4; Chagnon, at para. 19.
[36] This application seeks to judicially challenge a decision adopted by the Legislative Assembly imposing parliamentary discipline on a Member of the Assembly (the censure of the applicant) arising from a motion brought and debated before the Legislative Assembly. The moving parties rely on several recognized categories of parliamentary privilege. To decide the motions, we need only focus on two: control over debates and proceedings and disciplinary authority over Members of the Legislative Assembly.
[37] In Vaid, at para. 29, the Supreme Court set out the following accepted principles that apply to the court’s analysis of whether the privilege applies in this case:
(i) there are a number of categories (or spheres of activity) that have been recognized as covered by the privilege, including the control over debates and proceedings and disciplinary authority over members;
(ii) where the existence of a category for which privilege is claimed is put at issue, the court must determine whether that category continues to be necessary – that is, a matter without which the dignity and efficiency of the legislature cannot be upheld;
(iii) necessity must be read broadly and linked to the autonomy required by legislative assemblies;
(iv) the court’s approach to the question of whether a category is necessary may differ at the Federal and provincial level, as discussed below; and,
(v) the claimant of parliamentary privilege has the onus of establishing its existence and scope and, if required, its necessity.
[38] The applicant puts forward submissions about the merits of the censure, alleging bad faith and noncompliance with statutes and the Charter. The interveners also focus to a significant extent on the merits and specifics of Motion 19 and the resulting censure. However, as put by the Court of Appeal in Duffy, there is “no support for [the] contention that the rule of law permits the courts to scrutinize the legality of conduct” if that conduct is protected by parliamentary privilege: Duffy, at para. 82.
[39] Once the category is established as covered by the privilege, it is for the legislature to determine whether the exercise of the privilege is necessary or appropriate in a particular case, not the court: Vaid, at para. 29. The courts have “no jurisdiction to adjudicate the exercise of any matter falling within the scope of the privilege”: Duffy, at para. 36, citing Vaid, at paras. 40-41, 47-48; Chagnon, at paras. 2, 32; and New Brunswick Broadcasting, at pp. 350, 384-85.
[40] The starting point is not an examination of the merits of the censure, quite the contrary. The starting point is to determine the existence and scope of relevant categories of parliamentary privilege. If the motion and censure fall within the privilege, it is not appropriate to go further and consider its exercise in this case.
[41] Following the roadmap in Vaid, we begin with the question of whether the categories relied upon have been recognized in prior jurisprudence. There is no doubt that both control over debates and proceedings in the legislature and disciplinary authority over members of the legislature are established categories of parliamentary privilege: Vaid, at para. 29; Harvey, at paras. 64, 74, cited with approval in Vaid, at para. 28; New Brunswick Broadcasting, at pp. 344, 379; Chagnon, at para. 31; Duffy, at paras. 40-43, 58.
[42] Moving to the need to show necessity, the first question is whether the categories have already been authoritatively established, which they have been as set out above. There is a potential difference between the analysis depending on whether it relates to the federal or provincial level. At the federal level, where the category has been authoritatively established, nothing further is required to show necessity. At the provincial level, the court may also be required to consider whether the category continues to be necessary to the functioning of the legislative body in the contemporary context: Duffy, at para. 33; Vaid, at para. 29(6); Chagnon, at para. 31.
[43] We proceed on the basis that even where the category has been established historically, as is the case here, the category must also be necessary in the contemporary context.
[44] We agree with the submissions of the CCLA that parliamentary privilege and the resulting immunity must not be described in an overly broad manner, relying on Vaid. However, the Supreme Court in Vaid expressly held, at para. 29(7), that the test for necessity should be “read broadly” and that the “time-honoured test” is what the “dignity and efficiency” of the legislature require.
[45] The applicant submits that Motion 19 and the resulting censure are not necessary in the contemporary context. Again, that is the wrong question. The question is not whether the specific activity complained of is necessary. Rather, the question is whether the categories of privilege relied on – control of debates and proceedings in the legislature and disciplinary authority over members of the legislature – are still necessary.
[46] The applicant relies on Chagnon, which is an employment case about the dismissal of security guards. In Chagnon, a majority of the Supreme Court held that parliamentary privilege did not prevent a labour arbitrator from adjudicating a union's grievance of the decision of the President of the National Assembly of Québec to dismiss three of the Assembly's security guards. Chagnon did not involve either a motion before the legislature or the discipline of an MPP. The majority of the Court concluded that the dismissal of security guards was not within the privilege and could be addressed under ordinary labour relations law.
[47] As set out in Chagnon, the necessity test “demands that the sphere of activity over which parliamentary privilege is claimed be more than merely connected to the legislative assembly’s functions. The immunity that is sought from the application of ordinary law must also be necessary to the assembly’s constitutional role”: at para. 30. The Court found that previously recognized categories of the privilege, including control over debates and proceedings and disciplinary authority over members, served as examples of matters that met this requirement.
[48] To be necessary, control over debates and proceedings and disciplinary authority over members must be "so closely and directly connected with the fulfillment by the assembly or its members of their functions as a legislative and deliberative body . . . that outside interference would undermine the level of autonomy required to enable the assembly and its members to do their work with dignity and efficiency": Vaid, at para. 46; Chagnon, at paras. 29, 31.
[49] Looking first at control of debates and proceedings, the applicant focuses on the actions of the Speaker, in allowing debate and a vote on Motion 19, submitting that to do so was contrary to the rule of law. The applicant does not put forward an argument that it is no longer necessary for a legislative assembly to have control over debates and proceedings. That is the question. The need for that control was expressly recognized as far back as 1689 and is still central to the needed autonomy today. As put in Vaid, at para. 7, a legislature without control over its own procedure would be unable to get their job done. As recently put by the Court of Appeal in Alford, at para. 46, it is fundamental that the legislature control its own procedures.
[50] The category of control of debates and proceedings remains necessary. As the Supreme Court noted in Vaid, at para. 20, external intervention would inevitably create delays, disruption, uncertainties and costs which would hold up the legislature’s business. That would be unacceptable.
[51] In this case, the applicant asks this Court to tell the Speaker not to permit a motion, debate and vote. Those are matters within this category of parliamentary privilege and not within the jurisdiction of this Court.
[52] Moving to the category of disciplinary authority, it too is a category with long-standing and repeated recognition at the Supreme Court of Canada, including in Vaid and Chagnon. Its continued importance is confirmed in the Duffy decision of the Court of Appeal. In that case, the appellant alleged that necessity be shown even at the federal level. The Court of Appeal disagreed but went on to hold that if it had been a requirement, the categories at issue (including parliamentary proceedings and the discipline of members) continued to meet the necessity test. The Court of Appeal found that each category helped preserve the Senate’s independence and promotes the workings of a representative democracy: at para. 107. The Court found that otherwise the Senate’s autonomy and its freedom to do its work with dignity and efficiency would be undermined: at para. 107. The same principles apply to the work of the Legislative Assembly.
[53] The applicant submits that her statements on X are not within parliamentary privilege because she made the statements outside of the legislature (even though she captioned the post by referring to her role as a politician). However, the privilege is not confined to regulating conduct within the legislature or imposing sanctions for statements made within the legislature: Michaud, at paras. 33-6, 39, citing Vaid, at paras. 21, 29(10) and New Brunswick Broadcasting, at p. 385; Saunders, at para. 90-91, citing Harvey, at para. 67; Zundel, at paras. 16-18.
[54] While it is not necessary to rely on it in this case, there is another sphere of activity that is protected by parliamentary privilege, specifically freedom of speech, including a legislative assembly denouncing remarks that its members collectively find unacceptable: Michaud, at paras. 32-6, 39, citing Vaid, at paras. 21, 29(10) and New Brunswick Broadcasting, at p. 385.
[55] The applicant submits that her conduct was not unlawful and that she complied with the Legislative Assembly Act, R.S.O. 1990. c. L.10. and the Members Integrity Act, 1994, S.O. 1994, c. 38. The Legislative Assembly Act expressly affirms the parliamentary privileges at issue here. The Members Integrity Act permits the use of social media but it not a comprehensive code that expressly waives the parliamentary privileges.
[56] The applicant further submits that before she could be censured, there must be an investigation and that her conduct outside the Legislative Assembly would need to be criminal or corrupt before any action could be taken. These submissions seek to suggest that the authority to sanction is limited to the criminal activity that the Legislative Assembly may inquire into as set out in s. 46 of the Legislative Assembly Act. However, that authority is in addition to the parliamentary privileges, not a limitation on those privileges.
[57] The applicant further relies on the impact on her constituents. She submits that they are harmed by the censure if the Speaker does not recognize her. In Vaid, at paras. 29 and 30, the Supreme Court noted that courts are apt to look more closely at cases in which claims to privilege have an impact on persons outside the legislative assembly. We have taken this into account, but it does not displace the privilege. At para. 30, the Supreme Court noted that in New Brunswick Broadcasting the press freedom guaranteed by s. 2(b) of the Charter did not prevail over parliamentary privilege. The Court went on in para. 30 to find that the consequences of a finding that an area of parliamentary activity is covered by privilege is a matter for the legislature.
[58] As held in Duffy v. Senate of Canada, 2018 ONSC 7523 (“Duffy ONSC”), at para. 46, legislatures “may discipline members for behaviour that, in their view, undermines their fundamental integrity”. That authority is “necessary to the dignity, integrity and efficient functioning of the legislature: Duffy ONSC, at para. 47.
[59] In this case, the applicant seeks to challenge a censure under which the Speaker may not recognize the applicant. Bearing this context in mind, the Supreme Court put forward an apt example in Vaid, ruling that it “would be intolerable, for example, if a member of the House of Commons who was overlooked by the Speaker at question period could invoke the investigatory powers of the Canadian Human Rights Commission with a complaint that the Speaker’s choice of another member of the House discriminated on some ground prohibited by the Canadian Human Rights Act, or to seek a ruling from the ordinary courts that the Speaker’s choice violated the member’s guarantee of free speech under the Charter”: Vaid, at para. 20.
[60] The Supreme Court underscored that these “are truly matters ‘internal to the House’ to be resolved by its own procedures. Quite apart from the potential interference by outsiders in the direction of the House, such external intervention would inevitably create delays, disruption, uncertainties and costs which would hold up the nation’s business and on that account would be unacceptable even if, in the end, the Speaker’s rulings were vindicated as entirely proper”: Vaid, at para. 20.
[61] The applicant relies on Chagnon, where the Court found that a purposive approach to parliamentary privilege helps to reconcile the privilege and the Charter rights of non-members by ensuring that the privilege is “only as broad as is necessary” for the proper functioning of our parliamentary democracy. This approach does not displace the necessity that a legislative assembly have control over its proceedings and disciplinary authority over its members. Those spheres of activity continue to be necessary in order that the legislature have the autonomy needed to perform its constitutional functions. They are matters without which the dignity and efficiency of the legislature cannot be upheld.
[62] The applicant further submits that her political speech outside the Legislative Assembly and her Charter right to freedom of expression should be addressed by this Court. This argument presumes that parliamentary privilege does not apply. If it does, the court does not have jurisdiction:
(i) As put in Chagnon, at para. 24, “[j]udicial review of the exercise of parliamentary privilege, even for Charter compliance, would effectively nullify the necessary immunity this doctrine is meant to afford the legislature”: citing New Brunswick Broadcasting, at pp. 350 and 382-84; Vaid, at para. 29(9)).
(ii) As put in Vaid, at para. 30: “In matters of privilege, it would lie within the exclusive competence of the legislative assembly itself to consider compliance with human rights and civil liberties”.
(iii) As put in Duffy, at para. 110: “The Supreme Court has repeatedly held that where parliamentary privilege applies, the legislative body holding the privilege has the exclusive competence to adjudicate an alleged breach of the Charter.”
[63] Once a claim to privilege is made out, the court must not inquire into the merits of its exercise: Vaid, at para. 47; Duffy, at para. 35-36. It will be for the legislature to do so: Vaid, at paras. 29(9), 48. Much of the applicant’s submission relates to the exercise of the privilege, including the specific terms of the censure.
[64] This application for judicial review proposes to examine the Legislative Assembly’s decision to allow Motion 19 to go forward, be debated, voted on and adopted, resulting in the censure disciplining the applicant. All the remedies sought in the application relate to those steps within the Legislative Assembly and their consequences.
[65] We conclude that the moving parties have met their high onus to show that the relief sought in this application is precluded by parliamentary privilege. As expressly observed in Vaid, these are truly matters internal to the Legislative Assembly, to be resolved by its own procedures. This Court does not have jurisdiction.
[66] This does not leave the applicant without remedies. However, the applicant must pursue remedies before the Legislative Assembly, not the courts: Vaid, at paras. 20, 29(9) and 30; Duffy, at para. 91. Further, as underscored by the Supreme Court of Canada, “while legislative assemblies are not accountable to the courts for the ways in which they exercise their parliamentary privileges, they remain accountable to the electorate”: Chagnon, at para. 24; see also, Duffy, at para. 92.
Order
[67] The motions are granted and the application is dismissed. The dismissal as against His Majesty the King, the Attorney General for Ontario and Paul Calandra is on consent. There shall be no order as to costs.
___________________________ Backhouse J.
Matheson J.
Davies J.
Date: May 23, 2024
CITATION: Jama v. The Speaker, 2024 ONSC 1264
DIVISIONAL COURT FILE NO.: 652/23 DATE: 20240523
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, Matheson and Davies JJ.
BETWEEN:
SARAH JAMA
Applicant
– and –
THE SPEAKER FOR AND ON BEHALF OF THE LEGISLATIVE ASSEMBLY OF ONTARIO, THE LEGISLATIVE ASSEMBLY OF ONTARIO, THE HONOURABLE TED ARNOT IN HIS CAPACITY AS SPEAKER, THE HONOURABLE PAUL CALANDRA, THE ATTORNEY GENERAL OF ONTARIO, AND HIS MAJESTY THE KING IN RIGHT OF ONTARIO
Respondents
REASONS FOR DECISION
THE COURT
Date of Release: May 23, 2024