Court File and Parties

COURT FILE NO.: 17-73728 DATE: December 14, 2018

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Senator Michael Dennis Duffy Plaintiff/Respondent – and – The Senate of Canada Defendant/Moving Party

COUNSEL: Lawrence Greenspon and Tina H. Hill for Plaintiff/Respondent Maxime Faille, Guy Regimbald and John J. Wilson for the Defendant/Moving Party – and – The Attorney General of Canada Robert Frater, Alexander Gay and Sanam Goudarzi for the Defendant

HEARD: June 27 and 28, 2018 and October 22, 2018

JUSTICE SALLY GOMERY

Overview

[1] Senator Michael Duffy is suing the Senate of Canada for over $7 million in damages.

[2] On November 5, 2013, the Senate voted to suspend Senator Duffy based on a report from its standing committee on Internal Economy, Budgets and Administration (the “CIBA”). This CIBA report concluded that he had violated rules on living and travel expenses. Senator Duffy was later criminally charged with breach of trust, fraud and accepting a bribe. On April 21, 2016, after a trial that lasted more than a year, he was acquitted of all charges. Justice Vaillancourt, the judge who heard the criminal trial, concluded that the Prime Minister’s Office (“PMO”) directed one or more senators to interfere with an audit of Senator Duffy’s expenses. He also concluded that, in making living expense claims, Senator Duffy “committed no prohibited act, violated no Senate rules”, and neither engaged in criminal fraud nor intended to do so.

[3] In his lawsuit, Senator Duffy claims that the CIBA report and the Senate’s decision to suspend him were politically motivated, unconstitutional, procedurally unfair and contrary to his rights under the Canadian Charter of Rights and Freedoms. Given the judge’s findings when he was acquitted of criminal charges, Senator Duffy argues that actions by various senators and the Senate as a whole were clearly wrong and unlawfully deprived him of salary, allowances and pension contributions. He also says that, since he was acquitted and the suspension was lifted, the Senate has once again unfairly denied him reimbursement for further legitimate expenses. He seeks compensation for the amounts he says he is entitled to as well as compensatory and punitive damages.

[4] This matter is before me now because the Senate says that Senator Duffy’s action should be dismissed. The Senate contends that the lawsuit cannot proceed because the actions that Senator Duffy seeks to challenge fall squarely within the scope of parliamentary privilege. Determining the questions that arise in Senator Duffy’s lawsuit would accordingly require a court to do exactly what parliamentary privilege is designed to prevent.

[5] Parliamentary privilege is “the necessary immunity that the law provides for members of Parliament … in order for these legislators to do their legislative work”. It is recognized in our Constitution, and is a fundamental aspect of our constitutional democracy. Parliamentary privilege ensures that legislative bodies such as the Senate have the ability to manage their own decisions and core processes without interference from the courts. Each branch of our government must show “proper deference for the legitimate sphere of activity of the other”. Former Chief Justice McLachlin offered this rationale for parliamentary privilege:

The point is not that the legislature is always right. The point is rather that the legislature is in at least as good a position as the courts, and often in a better position, to decide what it requires to function effectively. In these circumstances, a dispute in the courts about the propriety of the legislative body’s decision, with the delays and uncertainties that such disputes inevitably impose on the conduct of legislative business, is unjustified.

[6] In its decisions on parliamentary privilege over the past 25 years, the Supreme Court of Canada has established how a judge should proceed when a legislative body seeks to dismiss a lawsuit on the basis of parliamentary privilege. The judge must first determine if the claim would require a court to review actions or processes that fall within the scope of an established area of privilege. If the judge determines that it would, the action must be dismissed.

[7] For the purpose of a motion like this one, I must assume that all of the factual allegations in Senator Duffy’s statement of claim are true. He makes many allegations about the improper motivations of various senators and the denial of any due process. But the core allegation, what he says entitles him to damages, is that the decisions by the CIBA and the Senate to suspend him and to deny his claims for compensation were unlawful and unfair. I must determine whether these decisions are protected by parliamentary privilege and therefore shielded from any review by this court.

[8] I conclude that they are. The Senate enjoys certain categories of privilege by virtue of the Constitution Act, 1867. Four types of privilege prevent a court from reviewing the actions by the Senate at issue in this case.

[9] First, parliamentary privilege extends to decisions by the Senate to discipline its own members. The privilege clearly applies to decisions about whether a senator should be suspended or expelled. In some cases, a court may review disciplinary decisions with respect to employees of a legislative body, if the management of such employees does not fall within the scope of what is necessary to protect the independent functioning of that body. There is however no question that the privilege prevents judicial review of discipline or suspension of a member of the legislature itself.

[10] Second, parliamentary privilege applies to the Senate’s management of its internal affairs, including the allocation and use of parliamentary resources. This privilege extends to decisions on the approval of expenses claimed by senators. I find that the privilege applies to decisions by an internal committee of senators, such as the CIBA, with respect to the allocation or withholding of parliamentary resources to a senator.

[11] Third, Parliament has exclusive control over, and privilege with respect to, its own debates and proceedings.

[12] Finally, parliamentary privilege protects freedom of speech in the Senate. Allegations in a statement of claim about what was said in parliament must be struck, because statements in parliament cannot be reviewed by a court. Neither a senator nor a third party can be compelled to testify in court about anything they said or did in the course of Senate proceedings. Transcripts of proceedings, and reports produced by or commissioned for the Senate, can likewise not be produced in court proceedings. The Senate’s failure to object to disclosure of some evidence that might have been subject to privilege during Senator Duffy’s criminal trial does not mean that it has relinquished its right to invoke privilege in this case.

[13] Senator Duffy contends that the application of parliamentary privilege in this case leaves him without any meaningful remedy. He says that he cannot hope to get justice from the very body that has treated him so badly in the past, and that the courts should not allow Charter violations to go unchecked, particularly in circumstances where those violations arise from interference by one branch of government (the PMO) with another (the Senate).

[14] I am however obliged to respect constitutional imperatives. Allowing a court to revisit the Senate’s decisions at issue here would interfere with the Senate’s ability to function as an independent legislative body, equal to other branches of government. These decisions, as well as the Senate record relevant to them, are protected by parliamentary privilege and are accordingly immune from judicial review or reconsideration. Since the actions at issue fall within those actions protected by parliamentary privilege, I cannot give any consideration to whether they were wrong or unfair or even contrary to Senator Duffy’s Charter rights. All of these are determinations that the Senate, and the Senate alone, can make. The Senate’s motion to dismiss Senator Duffy’s action against it is therefore granted.

Analysis

[15] In my analysis, I will consider five questions:

(1) What rules apply to this motion to strike? (2) What is Senator Duffy alleging in his action against the Senate? (3) What is the source and scope of parliamentary privilege in Canada? (4) How should I approach the claim of parliamentary privilege in this case? (5) Are the Senate’s actions at issue in this case subject to its privilege with respect to: a) The administration of its own internal affairs; b) Discipline of its own members; c) Control of its own proceedings; or d) Freedom of speech within parliament?

(1) What rules apply to this motion to strike?

[16] The Senate brings this motion under rules 21 and 25.11 of the Ontario Rules of Civil Procedure.

[17] Rules 21 and 25.11 allow a defendant to ask the court to dismiss an action or strike a statement of claim at a preliminary stage of a lawsuit. Under rules 21.01(1)(a) and (b), a judge may determine a question of law raised by a pleading and strike out a pleading or grant judgment if it discloses no reasonable cause of action. Under rule 21.01(3)(a), a defendant may seek to stay or dismiss an action on the ground that the court has no jurisdiction over the subject matter of the action. A defendant may also ask the court to stay, dismiss or strike some or all of a pleading on the basis that the action or the pleading is frivolous, vexatious or an abuse of the process of the court (rules 21.01(3)(d) and 25.11).

[18] A judge hearing a motion under these rules must assume that all of the facts pleaded in the statement of claim are true. Assuming they are true, the judge must then decide whether it is plain and obvious that the claim cannot succeed. A motion to stay or dismiss a claim or strike a pleading under rules 21.01 or 25.11 can only succeed in the clearest of cases. A claim should not be struck just because it is novel, or because the underlying law is unsettled, or because the plaintiff’s odds of success seem slim. If there is any chance that the plaintiff could succeed, the court should allow the lawsuit to proceed.

(2) What is Senator Duffy alleging in his action against the Senate?

[19] Senator Duffy’s claim is set out in his amended statement of claim dated September 8, 2017. The central allegations of fact relevant to Senator Duffy’s claim against the Senate are as follows:

• In 2009, Senator Duffy was appointed senator for Prince Edward Island (at para. 12). He initially received reassurances from the Prime Minister and from other senators that his expenses were appropriate (at paras. 13, 15, 19 and 20).
• In February 2013, the CIBA engaged Deloitte, an auditing, consulting and financial advisory company, to conduct an independent examination of Senator Duffy’s expense and living claims from April 1, 2011 to September 30, 2012 and to determine if they were subject to reimbursement (at paras. 28-29).
• The PMO interfered, for political reasons, with the work of the CIBA and the Deloitte audit (at paras. 22 to 25, and paras. 30 to 40). The PMO directed the CIBA to prevent Senator Duffy from meeting with Deloitte while the audit was underway (at para. 43).
• On May 9, 2013, Deloitte released its report on Senator Duffy’s expense claims. The report stated that the applicable Senate regulations and guidelines were unclear and did not allow it to determine Senator Duffy’s primary residence. Aside from one small clerical error, Deloitte could not find that any of Senator Duffy’s living claims were inappropriate (at paras. 44-45).
• After receiving the Deloitte report, the CIBA presented its own report (the “Twenty-Second Report”). The report recommended that living expenses that had been claimed by Senator Duffy from his date of his appointment were properly claimed and that, going forward, his living and travel expenses be monitored for a period of not less than a year (at para. 46). The Twenty-Second report was adopted by the Senate as a whole (at para. 47).
• On May 29, 2013, the CIBA, on orders from the PMO, released a new politically-motivated report (the “Twenty-Sixth Report”). This report stated that Senator Duffy’s living expenses and living allowances should not have been claimed and referred Senator Duffy’s repayment of $90,000 to authorities for investigation (at para. 52).
• On October 17, 2013, Senator Carignan, then Leader of the Government in the Senate, introduced a motion to suspend Senator Duffy for alleged gross negligence in the management of his parliamentary resources (at para. 57).
• On November 5, 2013, the Senate voted in favour of Senator Duffy’s suspension (at para. 65). Although Senator Duffy attended at the Senate to defend himself, no fair and public hearing was held prior to the vote (at paras. 64 and 66). He was the only Senator suspended even though a June 4, 2015 report by the Auditor General of Canada found that 30 other Senators, not including Senator Duffy, had incurred expenses inconsistent with applicable Senate rules, policies or guidelines (at para. 67). His suspension was for “purely political motives” (at para. 69).
• During his suspension, Senator Duffy’s remuneration, reimbursement for expenses and pension accrual were withheld, and he was denied the right to use any Senate resources or receive any benefit from the Senate (at para. 57).
• On July 17, 2014, Senator Duffy was charged with 31 offences relating to Senate expenses and his receipt of $90,000 from Nigel Wright, the Prime Minister’s former Chief of Staff (at para. 84).
• Senator Duffy’s suspension ended on the dissolution of Parliament on August 2, 2015, but the Senate continued to withhold his pay and expenses pending the outcome of his criminal trial (at paras. 72 and 104).
• On April 21, 2016, Senator Duffy was acquitted of criminal charges (at para. 72). In his decision acquitting Senator Duffy on criminal charges, Justice Vaillancourt concluded that, when Senator Duffy designated his primary residence as PEI and claimed living expenses for his residence in the National Capital Region, he “committed no prohibited act, violated no Senate rules and did not in all circumstances commit the actus reus of fraud” (at para. 54). He found that senior members of the Senate had acted at the direction of Mr. Wright to, among other things, attempt to influence the outcome of the Deloitte audit (at para. 88). The judge also found that all of Senator Duffy’s travel claims were appropriate (at para. 56). The Crown did not appeal Justice Vaillancourt’s judgment (at para. 92).
• On July 25, 2016, the Senate deducted $17,000 from Senator Duffy’s salary to recover amounts it alleged he had claimed inappropriately, even though Judge Vaillancourt had found that these claims were valid (at paras. 93-94).
• On August 24, 2016, the CIBA rejected Senator Duffy’s request for partial reimbursement of his legal expenses in defending the criminal charges against him, contrary to its own policy on reimbursement of such expenses (at para. 95).
• The Senate has not responded to Senator Duffy’s written request made on December 12, 2016 for reimbursement of the salary, pension accrual and living allowance during his suspension (at paras. 96-97).
• Senator Duffy has suffered significant emotional, physical and economic damages as a result of the senate committee investigation, the Deloitte audit, his suspension, the criminal investigation and media coverage of these events (at paras. 98-103).

[20] Based on these allegations, Senator Duffy claims that the Senate is legally liable on the basis of malicious prosecution, misfeasance in public office, unjust enrichment, unconstitutional actions and violations of his rights under sections 7, 11 and 12 of the Charter.

[21] There are many allegations of fact in the statement of claim that I have not mentioned. Some describe Senator Duffy’s career before he was appointed. Others relate to his claim against the RCMP or allege improper motives and conduct by the PMO and its staff. These allegations colour the narrative presented by Senator Duffy but are not directly relevant to his claim against the Senate.

[22] The amended statement of claim also includes many statements that are not allegations of fact. For example, at paras. 58 to 62, Senator Duffy alleges that his November 2013 suspension was “in effect an expulsion” that created a vacancy in the Senate, and that the withholding of his remuneration was an “unprecedented abuse of power” that was unnecessary for the proper functioning of the Senate. These are arguments, legal conclusions or characterizations as opposed to factual allegations. This is an important distinction since, on a motion under rules 21.01 and 25.11, I must only assume that all facts alleged are true. I am not required to assume that Senator Duffy’s legal arguments will succeed, or that he has accurately described the legal impact of various events.

[23] In summary, for the purpose of this motion I must assume that the CIBA’s Twenty-Sixth report, which found that Senator Duffy violated internal rules and policies in claiming expenses, was contrary to the Twenty-Second Report and the findings of the Deloitte audit. I must assume that the Twenty-Sixth Report’s recommendations, actions taken by various senators in the course of the underlying investigation, and the referral of the legality of the $90,000 payment to the RCMP, were politically motivated and contrary to the Senate’s own rules. I must assume that the motion introduced in the Senate to suspend Senator Duffy, the vote by the Senate to suspend him, and the decision after his suspension to deny him reimbursement of his legal fees and legitimate expenses, were not based on any actual violation of Senate rules or practices by him, but were again politically motivated. Finally, I must assume that he has suffered damages as a result of these events.

(3) What is the source and scope of parliamentary privilege in Canada?

[24] Parliamentary privilege originated in England in response to attempts by courts and the Crown to interfere with the workings of the legislative branch. In 1689, Parliament enacted the Bill of Rights, 1689, immunizing certain parliamentary activities from consideration by the courts. It provided that “the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place outside of Parlyament”.

[25] Over time, the concept of parliamentary privilege was expanded to protect not only speech and procedures, but any action within parliament over which it must necessarily have exclusive control, as an independent and coequal branch of government. Parliamentary privilege is accordingly:

the necessary immunity that the law provides for Members of Parliament … 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 … Finally, it is the authority and power of each House of Parliament … to enforce that immunity.

[26] In 1867, parliamentary privilege in Canada became part of our founding Constitution Act, 1867. The preamble to the Canadian Constitution provides that we have a constitution “similar in principle to that of the United Kingdom”. Section 18 states that “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”, subject to the condition that any such legislation cannot confer privileges, immunities or powers exceeding those held, enjoyed and exercised by the UK Parliament and its members in 1867. Section 4 of the Parliament of Canada Act confirms that the Senate, and its members, have both the privileges, immunities and powers that the UK parliament and its members had in 1867, and any additional privileges, immunities or powers enacted by the Canadian Parliament, so long as they do not exceed those in the first category.

[27] In Canada (House of Commons) v. Vaid, 2005 SCC 30, Justice Binnie characterized parliamentary privilege in Canada as “the sum of the privileges, immunities and powers enjoyed by the Senate, the House of Commons and provincial legislative assemblies, and by each member individually, without which they could not discharge their functions”.

[28] Parliamentary privilege is an essential feature of our constitutional democracy. In the words of former Chief Justice McLachlin:

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

[29] Privilege not only upholds the “dignity and efficiency” of parliament but also protects its autonomy:

A legislative assembly without control over its own procedure would, said Lord Ellenborough C.J. almost two centuries ago, “sink into utter contempt and inefficiency” (Burdett v. Abbot (1811), 14 East 1, 104 E.R. 501) . “Inefficiency” would result from the delay and uncertainty would inevitably accompany external intervention. Autonomy is therefore not conferred on Parliamentarians merely as a sign of respect but because such autonomy from outsiders is necessary to enable Parliament and its members to get their job done.

(4) How should I approach the claim of parliamentary privilege in this case?

[30] The underlying principle of parliamentary immunity is that: “[w]hat is said or done within the walls of Parliament cannot be inquired into in a court of law”.

[31] In Vaid, Justice Binnie set out twelve propositions which respect to parliamentary privilege “accepted both by the courts and by the parliamentary experts”. One of these propositions is that certain categories of privilege are well-established. These categories include freedom of speech within Parliament; control by the House of Parliament over debates and proceedings in Parliament, including day to day procedure in the House; and disciplinary authority over members. Justice Binnie held that, if the “existence and scope of a privilege at Westminster is authoritatively established (either by British or Canadian precedent), it ought to be accepted by a Canadian court without the need for further inquiry into its necessity”.

[32] When a party to a court proceeding invokes parliamentary privilege, the court must ask a simple question: does the activity at issue in the proceeding fall within the scope of the privilege? If it does, that is the end of the court’s inquiry. If the activity is immunized from review as a result of the privilege, the court has no further role:

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?

[33] This same approach prevails even where a party asking the court to review conduct by a legislature claims that their Charter rights have been violated. Parliamentary privilege and the Charter both have constitutional status. Courts must attempt, so far as possible, to “reconcile them in such a way as will preserve both meaningful legislative privilege as well as the fundamental democratic values guaranteed by the Charter.” But the Charter does not give to the courts the power to intrude on the sphere of activity exclusive to the parliament. An allegation of a breach of a human rights code or the Charter does not give courts a pretext for ignoring parliamentary privilege:

If the courts below were correct about a “human rights exception”… any person dealing with the House of Commons could circumvent the jurisdictional immunity conferred by privilege simply by alleging discrimination on grounds contrary to the Canadian Human Rights Act. Such a rule would amount to an invitation to an outside body to review the reasons behind the exercise of the privilege in each particular case. This would effectively defeat the autonomy of the legislative assembly which is the raison d’être for the doctrine of privilege in the first place.

[34] If parliamentary privilege applies, the court must defer to the legislature even if the privilege would shield activity that is alleged to violate Charter rights.

[35] In Vaid, Justice Binnie observed that “the historical foundation of every privilege of Parliament is necessity”, and that a party who seeks to rely on the immunity provided by parliamentary privilege may need to establish its existence:

When the existence of a category (or sphere of activity) for which inherent privilege is claimed (at least at the provincial level) is put in issue, the court must not only look at the historical roots of the claim but also to determine whether the category of inherent privilege continues to be necessary to the functioning of the legislative body today. Parliamentary history, while highly relevant, is not conclusive. [Emphasis added.]

[36] The Supreme Court released its decision in Chagnon v. Syndicat de la fonction publique et parapublique du Québec, 2018 SCC 39 after this motion was argued before me. Senator Duffy and the Senate made written submissions on the impact of the majority’s analysis on this case. Senator Duffy argues that, based on the majority’s reasons in Chagnon, the Senate must prove that the privileges it invokes continue to be absolutely necessary to its core activities, even if those privileges have been recognized in earlier decisions by Canadian or UK courts.

[37] Counsel for the Senate argues that Chagnon does not overturn Vaid, which recognized established categories of inherent privilege held by the federal parliament. The Senate argues that the Court’s comments on necessity in Vaid and Chagnon do not apply to these inherent privileges.

[38] I accept the Senate’s argument on this point. I do not agree that Chagnon stands for the proposition that the necessity of long-held, constitutionally recognized privileges held by the federal parliament must be proved again every time they are invoked.

[39] The issue in Chagnon was whether a decision to discipline security guards employed at the Quebec National Assembly was protected by parliamentary privilege. The guards were unionized employees of the provincial government and had the right, pursuant to provincial statute, to grieve their dismissal to an arbitrator. It was in that context that the Supreme Court held that the necessity of a privilege, that would preclude arbitration, had to be established.

[40] The situation in this case is different. Pursuant to the Constitution Act, 1867 and section 4 of the Parliament of Canada Act, the Senate has the same privileges as those held, enjoyed and exercised by the UK parliament in 1867. As stated in Vaid, a decision relied on by the majority in Chagnon, these categories of privilege are so well-established that their existence cannot be in any doubt.

[41] The concept of necessity is relevant in determining the scope of parliamentary privilege. When privilege is invoked, the court must determine where to draw the line between privileged and non-privileged activity. Where a particular activity within Parliament is not obviously within the scope of a privilege, the body invoking the privilege must show that the scope it advocates only protects activities necessary to its core functions. If however the activity at issue falls squarely within the scope of an established privilege, the court has no further role to play.

[42] It is with these principles in mind that I turn now to the central issue on this motion, that is, whether parliamentary privilege extends to the Senate’s actions at issue in this case.

(5) Does parliamentary privilege apply to the conduct at issue in this action?

[43] The Senate argues that the conduct that Senator Duffy is asking the court to review, through his action, are protected by four different kinds of parliamentary privilege:

a) The Senate’s privilege to discipline its own members; b) The Senate’s privilege to administer its own internal affairs c) Privilege over proceedings in Parliament; and d) Privilege over freedom of speech.

a) The Senate’s privilege to discipline its own members

The scope of the privilege

[44] Courts have long recognized Parliament’s exclusive right to discipline its members. As stated over a hundred years ago in the case of Bradlaugh v. Gossett (1884), 12 Q.B.D. 271 (D.C.):

The jurisdiction of the Houses over their own members, their right to impose discipline within their walls, is absolute and exclusive.

[45] In Harvey, in 1996, the Supreme Court of Canada considered a legal challenge by a member of a provincial legislature who had been expelled after being convicted of an illegal practice under the Canada Elections Act. He claimed that his expulsion infringed section 3 of the Charter.

[46] The Court observed that the history of the prerogative of the legislative body “to maintain the integrity of their processes by disciplining, purging and disqualifying those who abuse them is as old as Parliament itself.” Legislatures may discipline members for behaviour that, in their view, undermines their fundamental integrity. Disciplinary action may range from light sanctions for minor irregularities and expulsion for serious misconduct:

The power of Parliament to expel a member is undoubted. This power has been repeatedly exercised by the English and Colonial Parliaments, either when members have been guilty of a positive crime, or have offended against the laws and regulations of the House or have been guilty of fraudulent or other discreditable acts, which proved that they were unfit to exercise the trust which their constituents had reposed in them, and that they ought not to continue to associate with the other members of the legislature.

[47] The Court concluded that the power to disqualify members for corruption “is necessary to the dignity, integrity and efficient functioning of the legislature”. As a result, it fell outside the ambit of s. 3 of the Charter. In the words of the Court: “It is a matter for the legislature, not the courts, to determine”.

[48] The Court emphasized that, once it determined that the expulsion was an exercise of parliamentary privilege, it could not second-guess the legislature’s stated rationale for its action, or make any determination about whether the sanction was justified or fair.

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.

[49] Since Harvey’s expulsion was subject to parliamentary privilege, he had no ability to challenge it through a judicial proceeding.

[50] The outcome in Harvey is consistent with section 33 of the Constitution Act, 1867, which gives the Senate the exclusive and non-reviewable power to determine the qualification of a Senator to remain in the Senate:

If any Question arises respecting the Qualification of a Senator or a Vacancy in the Senate the same shall be heard and determined by the Senate.

[51] Section 33 does not refer explicitly to the Senate’s power to suspend a senator, but other federal legislation does. As already noted, section 4 of the Parliament of Canada Act affirms that the Senate’s privileges include not only those privileges common to the UK parliament, but those “defined by an Act of the Parliament”. Section 2.9 of the Members of Parliament Retiring Allowances Act states that:

If a member is suspended by the Senate or House of Commons, as the case may be, by a majority vote of that House, the member’s pensionable service is not to include the period that begins on the day on which the suspension starts and ends on the day fixed by the majority vote of that House for the reinstatement of the member’s entitlement to accrue pensionable service.

[52] Section 1(1) of the Senate Sessional Allowance (Suspension) Regulations, enacted pursuant to the Parliament of Canada Act, likewise refer to the Senate’s power to suspend a senator:

If the Senate suspends a member, there shall be deducted from the member’s sessional allowance for the period of suspension the amount otherwise payable after deductions required by any Act of Parliament.

[53] These provisions recognize not only that the Senate may suspend a member by majority vote, but that it has the power to decide when the suspension begins and ends, which in turn determines pension accrual and payment of a sessional allowance. This is all premised on the inherent privilege of parliament to discipline its members through suspension.

[54] The scope of the parliamentary privilege to discipline has been challenged in cases where the person subject to dismissal, expulsion or suspension is not a member of the legislature, but an employee. In Vaid, the former chauffeur to the Speaker of the House of Commons filed discrimination and harassment complaints after his position was eliminated. The Speaker and the House argued that the Canadian Human Rights Commission had no jurisdiction to consider the complaint due to parliamentary privilege.

[55] The Supreme Court accepted this argument. As explained by Justice Binnie, deciding otherwise would require a court to do exactly what the privilege prevents it from doing:

The courts below held that parliamentary privilege does not include the freedom to discriminate on grounds prohibited by the Canadian Charter of Rights and Freedoms or the Canadian Human Rights Act because such discrimination is not necessary to the proper functioning of the Senate or House of Commons. On this view, an allegation of discrimination destroys any privilege that might otherwise immunize the Speaker’s conduct from external review.

[56] He concluded that:

The purpose of privilege is to recognize Parliament’s exclusive jurisdiction to deal with complaints within its privileged sphere of activity. The proper focus, in my view, is not the grounds on which a particular privilege is exercised, but the prior question of the existence and scope of the privilege asserted by Parliament in the first place.

[57] More recently in Chagnon, the Supreme Court held that a decision by the President of the National Assembly of Quebec to dismiss security guards was not protected by parliamentary privilege. The majority concluded that judicial oversight of how security guards are managed and disciplined would not impede the National Assembly’s core functions. It also noted that employees of the National Assembly are subject to the same labour relations regime that governs other civil service employees.

Does the privilege apply here?

[58] In Harvey, the Supreme Court held that parliamentary privilege extends to decisions by the Senate to discipline its members. This includes decisions about whether a member of a body should be suspended or expelled. Section 33 of the Constitution Act, 1867, and federal legislation referencing the Senate’s right to suspend its members by majority vote, support the privilege asserted by the Senate in this case.

[59] Senator Duffy relies on the Supreme Court of Canada’s 1878 decision in Landers v. Woodworth (1878), 2 S.C.R. 158. In Landers, a member of the Legislative Assembly of Nova Scotia was ordered, by resolution of the Assembly, to apologize for making an unfounded accusation of misconduct against the Provincial Secretary. When Landers refused to apologize, he was forcibly removed from the Assembly. He sued the Speaker and some MLAs for damages and won. The Supreme Court upheld this decision. It held that the Legislative Assembly did not have the power to punish a member for contempt.

[60] Landers is distinguishable from this case because the Senate has all of the privileges enjoyed by the UK Parliament, whereas the Legislative Assembly of Nova Scotia does not. One of these powers is indisputably the power to punish a member for contempt. As a result, if Landers had been a senator as opposed to a member of the Legislative Assembly of Nova Scotia, the Assembly’s actions in finding him in contempt and physically expelling him could not have been subject to any review by the courts.

[61] Senator Duffy argues that Chagnon fundamentally changes how courts should approach a motion like this. I disagree. In Chagnon, a majority of the Court reaffirmed that, if the actions at issue in a lawsuit fall within the scope of a privilege recognized as necessary for the core processes of a legislative body, the court cannot allow the action to proceed.

[62] There may be debate about whether disciplining an employee of the Senate, such as a chauffeur (as in Vaid) or a security guard (as in Chagnon) falls within the scope of privilege. There is however no debate that the disciplining of a Senator, as a member of the federal parliament, falls within the scope of the privilege. Nothing in Chagnon or any other case since Harvey suggests otherwise. The parliamentary privilege over discipline would be meaningless if it did not extend to decisions over members themselves.

[63] I conclude that the Senate’s decision to suspend Senator Duffy was an exercise of parliamentary privilege, and therefore immune to any review by this court. This precludes a court from determining whether the suspension was unlawful, unfair or contrary to Senator Duffy’s Charter rights, or from granting him any damages flowing from his suspension.

b) The Senate’s privilege to administer its own internal affairs

The scope of the privilege

[64] In his book Parliamentary Privilege in Canada, Joseph Maingot states that “[o]ne of those matters of privilege is the right of the legislative body to control its internal affairs and proceedings free of interference from the Crown or executive, the courts or the public”.

[65] This category of parliamentary privilege was at issue in Villeneuve v. Northwest Territories (Legislative Assembly), 2008 NWTSC 41, 85 Admin. L.R. (4th) 281, a case somewhat similar to this one. Villeneuve, a former member of the Legislative Assembly of the Northwest Territories, sought judicial review of a decision to withhold an allowance payable to him by the assembly’s board of management. Following an audit, the board had filed a complaint alleging that Villeneuve had misrepresented his place of residence. Villeneuve lost his seat before the complaint could be adjudicated.

[66] The Assembly asked the Northwest Territories Superior Court to dismiss Villeneuve’s action, on the basis that the board’s decision to withhold the allowance was protected by parliamentary privilege. Justice Charbonneau granted the Assembly’s motion to strike.

[67] Justice Charbonneau concluded that the Assembly alone could decide how to allocate internal resources, and had delegated its responsibility for the administration of allowances and benefits to the board. In order for it to be an independent and equal branch of the territorial government, the board’s decisions on these issues must be free from interference from the courts:

In my view, decisions that the Board makes about MLAs allowances and benefits are truly internal to the legislature, and it is necessary that those decisions be privileged and free from review by the courts. It is necessary that the legislature, through the Board, be able to make its own decisions about benefits and allowances of its members without outside interference. How members are compensated, and what allowances they receive to enable them to do their work as MLAs, are the types of internal matters over which the legislature must have complete control and be free from outside interference, as an independent branch of government.

[68] The Quebec Superior Court reached the same conclusion in Filion v. Chagnon, 2016 QCCS 6146, 2016 CarswellQue 11909. Filion was a member of the Quebec National Assembly. After he lost his seat, the Assembly withheld some of his transitional allowance on the basis that he had made illegitimate expense claims. Justice Francoeur rejected Filion’s action challenging the Assembly’s decision. He concluded that, since the decision was made by an internal body with the mandate to manage the Assembly’s administrative and financial affairs, it fell within the scope of parliamentary privilege, that is, the Assembly’s right to regulate its internal affairs without outside interference. As a result, the decision simply could not be reviewed by the court.

[69] Senator Duffy argues that CIBA’s decisions are not immune from judicial review for two reasons. First, he suggests that his criminal prosecution means that the privilege no longer applies. Second, he argues that, based on a recent decision of the Federal Court of Canada, the privilege does not extend to decisions by committees such as CIBA.

[70] Senator Duffy’s first argument is based on a decision by the UK House of Lords in R. v. Chaytor, [2010] UKSC 52, [2011] 1 A.C. 684. In Chaytor, members of the UK Parliament faced criminal charges for false accounting of parliamentary expenses. They sought a dismissal of the criminal charges on the basis that the charges infringed parliamentary privilege. This argument was rejected by the trial judge and that decision was upheld on appeal. The UK courts held that the members’ alleged misconduct could be punished by both the parliament and by the criminal courts, because the prosecution did not impeach or question any parliamentary proceeding or freedom. Lord Rodger wrote:

[E]ven though the alleged offences presuppose the existence of the allowances system, nothing in the particulars in the indictments indicates, or even suggests, that the prosecution of the charges would raise any issue as to decisions of the House or of its committees, or of any officers or employees acting on their behalf, as to the system or its operation. … [There is nothing in the allegations against the appellants which relates in any way to the legislative or deliberative processes of the House of Commons or of its members, however widely construed.

[71] Based on the language in Chaytor, Senator Duffy argues that his civil lawsuit for recovery of money is not inconsistent with the Senate’s exclusive control over the allocation of internal resources.

[72] Senator Duffy made similar arguments about the impact of Chaytor in his criminal trial. He asked Justice Vaillancourt to order the Senate to produce records with respect to the CIBA investigation, based in part on the reasoning in that case. Justice Vaillancourt held that the situation in Chaytor was distinguishable from Senator Duffy’s situation:

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

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

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

[73] I agree with Vaillancourt J. that Chaytor is distinguishable from this case on the two grounds he mentions. First, the Senate’s claim for privilege in this case is not being made to shield senators from allegations of criminal wrongdoing, but rather to protect the Senate’s right to regulate its own affairs and procedures, to enforce discipline on members, and to deliberate and examine witnesses. Second, the privilege is asserted with respect to proceedings of the Senate and its wholly internal subcommittee, as opposed to proceedings of an arm’s-length body.

[74] I conclude, like Justice Vaillancourt, that Chaytor does not assist Senator Duffy.

[75] Senator Duffy’s second argument is based on Boulerice v. Canada (Attorney General), 2017 FC 942, 2017 CarswellNat 6051. In Boulerice, four members or former members of Parliament sought judicial review of decisions by the Board of Internal Economy, which had ruled that the members had used parliamentary resources and services in contravention of the Board’s by-laws. The Board and the Speaker of the House of Commons brought a motion to strike the applications. They argued that the Board was not a “federal board, commission or other tribunal” under the Federal Courts Act, and that its decisions were therefore not subject to judicial review. They also argued that parliamentary privilege shielded the Board from any judicial review.

[76] Justice Gagné rejected the motion to strike, allowing the applications for judicial review to proceed.

[77] Justice Gagné held first that the Board of Internal Economy is a “federal board”. She found that the Board’s jurisdiction and powers were not derived from constitutional privileges, but uniquely from section 52.3 of the Parliament of Canada Act. In her view, this put the Board in a fundamentally different position than the Senate. Justice Gagné wrote:

This case does not involve the Senate or the House of Commons, institutions central to our free and democratic system of government… Rather, we are faced with a subsidiary entity charged and empowered to administer the use of resources and services by members. The Board, in all of its delegated powers and functions, is clearly not as fundamental to our notion of free democracy that it attracts the same protections afforded to the Senate and the House of Commons.

[78] Justice Gagné noted that, pursuant to section 2(2) of the Federal Courts Act, the Commons and its committees are not subject to the jurisdiction of the Federal Court. In her view, however, the Board of Internal Economy did not have the same standing or role as a parliamentary committee:

Committees of the House of Commons – be they standing, legislative, special or subcommittee – are specific parliamentary bodies derived from the conduct of the House, its Standing Orders and parliamentary tradition. … They are not created by, nor do they take their powers from, an Act of Parliament. They examine policy, engage in law-making and exercise functions at the core of the legislative powers.

The Board, on the other hand, has no such functions. Its only functions are financial and administrative.

[79] Senator Duffy argues that, like the Board of Internal Economy, the CIBA’s only functions are financial and administrative, and that therefore its decisions are not subject to parliamentary privilege. I disagree.

[80] The CIBA is a purely internal parliamentary committee made up of senators appointed by the Leader of the Government in the Senate and the Leader of the Opposition in the Senate. In exercising its functions and powers, it is subject to the “rules, direction and control of the Senate”. As an internal committee of the Senate, it falls outside the definition of a “federal board, commission or tribunal” in section 2(2) of the Federal Courts Act.

[81] The CIBA has the mandate to act on all financial and administrative matters respecting the Senate, its premises, its services, its staff and the members of the Senate. This includes the power to make regulations about senators’ use of “funds, goods, services and premises made available to them for the carrying out of their parliamentary functions”, and “prescribing the terms and conditions of the management of, and accounting for, by senators”, of such funds. The CIBA likewise has the exclusive authority to determine whether a senator has made proper use of the parliamentary resources allocated to them:

The Committee has the exclusive authority to determine whether any previous, current or proposed use by a senator of any funds, goods, services or premises made available to that senator for the carrying out of parliamentary functions is or was proper, given the discharge of the parliamentary functions of senators, including whether any such use is or was proper having regard to the intent and purpose of the regulations made under subsection 19.5(1).

[82] Finally, the CIBA may issue general opinions regarding the proper use of Senate funds, goods, services and premises.

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

[84] In her reasons, Justice Gagné, relying on Chaytor, concludes that the notion of parallel jurisdiction over allegedly criminal activities also applies in the analysis of the availability of judicial review. I respectfully disagree. What was at issue in Chaytor was the ability of a member of parliament to evade criminal prosecution based on a claim of parliamentary privilege. The UK courts rejected this argument because its parliament has never asserted such a privilege on behalf of its members. But parliament has consistently asserted privilege when a party, in the context of legal proceedings, asks the court to review a matter within the scope of parliament’s exclusive control.

[85] I conclude that Boulerice is distinguishable from this case. To the extent that it is not, I respectfully decline to adopt Gagné J.’s reasoning in that case.

Does the privilege apply here?

[86] In his lawsuit, Senator Duffy alleges that the CIBA has withheld his pension allocation and reimbursement for legitimate expenses. He asks this court to find that these decisions are unlawful.

[87] The Senate has the exclusive power to regulate its internal affairs. This power includes the right to allocate internal resources, as found by the courts in Villeneuve and Filion. The Senate has delegated decisions on allowances and expenses to a wholly internal subcommittee, the CIBA.

[88] Adjudicating Senator Duffy’s claim regarding his living allowance, pension and expenses would require the court to overturn decisions that the Senate alone, through the CIBA, has the power to make. The Senate’s decisions on Senator Duffy’s monetary entitlements are not subject to judicial consideration; they clearly fall within the scope of recognized parliamentary privilege. This precludes any court from determining whether these decisions were unlawful, unfair or contrary to Senator Duffy’s Charter rights, or from granting him any damages flowing from them.

c) Privilege over parliamentary proceedings

The scope of the privilege

[89] In 1839, in Stockdale v. Hansard (1839), 9 Ad. & E.1, the chief justice of the Court of Queen’s Bench held that parliament alone must have control over its own proceedings and decide when its internal rules have been violated:

That the House should have exclusive jurisdiction to regulate the course of its own proceedings, and animadvert upon any conduct there in violation of its rules, or derogation from its dignity, stands upon the clearest grounds of necessity.

[90] Parliament’s right to control its own processes has likewise been recognized by Canadian courts. As the Supreme Court of Canada recognized in NB Broadcasting, the “right of the House to be the sole judge of the lawfulness of its proceedings is … evident”. Less than a month ago, the court reaffirmed this privilege, stating:

Canadian jurisprudence makes clear that parliamentary privilege protects control over “debates or proceedings in Parliament”. The existence of this privilege generally prevents courts from enforcing procedural constraints on the parliamentary process.

[91] In Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40, 20 C.E.L.R. (4th) 1, a majority of the Supreme Court held that the Federal Court could not require the government to consult with First Nations when it was developing new legislation, because the legislative process is shielded from court review.

Does the privilege apply here?

[92] The CIBA investigation and the processes leading to the Senate’s decision to suspend Senator Duffy are protected by parliamentary privilege. A court could not conclude that the Senate or one of its bodies failed to provide Senator Duffy with a fair opportunity to present his case, because this would impose procedural constraints on the Senate. This precludes any court from determining whether the investigation or suspension were unlawful, unfair or contrary to Senator Duffy’s Charter rights, or from granting him any damages flowing from any denial of his procedural rights.

d) Privilege over freedom of speech

The scope of the privilege

[93] The privilege over speech in parliament was formally recognized in article 9 of the 1689 Bill of Rights and is therefore a category of privilege referred to in the Constitution Act, 1867. In NB Broadcasting, the Supreme Court stated that “[t]he need for the right of freedom of speech is so obvious as to require no comment”.

[94] The parliamentary privilege over freedom of speech prevents a member of parliament from being sued for comments made in parliament or from being compelled to testify in court about speeches made in the legislature. The privilege protects not only statements made in Parliament but those made before parliamentary committees. As a result, anything that is said in one of the committees is not actionable in the ordinary courts.

[95] The privilege extends to statements by members of the public who participate in proceedings in Parliament or parliamentary committees. Maingot states:

The Bill of Rights, 1689 is not restricted to Members; whatever protection is afforded the Member is equally afforded to the non-Member under the same circumstances. Accordingly, witness, petitioner, counsel, and others whose assistance the House considers necessary for conducting its proceedings are protected by the rule of Parliament … that no evidence given in either House can be used against the witness in any other place without the permission of the House.

[96] As a result:

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

[97] As noted in the passage I have just cited, parliamentary privilege over freedom of speech is absolute. It does not matter if the person who made statements in parliament is alleged to have lied or in fact clearly did so. The only body that can take steps to sanction speech in parliament is parliament itself. In the face of this privilege, a court may not consider any action based on speech in parliament, or admit evidence about speech in parliament.

[98] In Prebble v. Television New Zealand Ltd., [1995] 1 A.C. 321 (P.C.), the Privy Council stated that the reason for the blanket privilege over speech in parliament is “the need to ensure so far as possible that a member of the legislature and witnesses before committees of the House can speak freely without fear that what they say will later be held against them in the courts”. This point was emphasized by Justice Tremblay-Lamer in two decisions on parliamentary privilege over freedom of speech.

[99] In Gagliano v. Canada (Attorney General) (2005) FC 576, [2005] 3 F.C.R. 535 (T.D.), a former member of parliament sought judicial review of a decision by the Sponsorship Inquiry to preclude testimony before a parliamentary committee from being used in cross-examination. The Crown argued successfully that the decision should be upheld, because parliamentary privilege protected the independence of the legislature from both the judiciary and the Crown, including a federal commission of inquiry.

[100] Justice Tremblay-Lamer provided this rationale in dismissing the application for judicial review:

It is my opinion that precluding cross-examination based on evidence presented to a Parliamentary committee is necessary for that committee, primarily because it encourages witnesses to speak openly.

It is also essential to the proper functioning of the committee in its investigative or inquisitorial role. And it forecloses the possibility that a finding of fact by a court or a commission of inquiry will contradict a finding of fact by a Parliamentary committee or Parliament as a whole.

[101] She concluded that questioning the Committee’s procedure and decisions would be “contrary to our constitutional structure”.

[102] Justice Tremblay-Lamer dealt with the same issue again in a judicial review of the RCMP Commissioner’s decision to discipline a member for alleged perjury in her evidence before the House of Commons’ Public Accounts Committee. She observed that recognizing Parliament’s absolute control over the speech is necessary to preserving its independence:

If Parliament has reason to believe that a witness has deliberately misled the House, it is up to Parliament, and Parliament alone, to initiate proceedings and discipline such conduct. Misleading the House is contempt of the House punishable by the House: if a court or another entity was allowed to inquire into whether a member or a witness had misled the House, this could lead to exactly the type of conflict between two spheres of government that the wider principle of parliamentary privilege is designed to avoid. The courts would be trespassing on Parliament’s jurisdiction … .

[103] The privilege not only prevents witnesses from testifying in court with respect to statements they made in parliament, but the production of transcripts of their evidence. In Lavigne v. Attorney General of Ontario (2008), 91 O.R. (3d) 728 (S.C.J.), a senator was being investigated by a special subcommittee on the use of Senate resources. He applied to the Superior Court for an order compelling production of transcripts of witnesses heard by the committee in private. The court dismissed the application on the basis that the transcripts were privileged. Justice Lalonde noted that the right of speech and the right of the Senate to control its debates, including the right to debate in private and to publish its debates, are recognized parliamentary privileges. He held that:

A decision on my part to require the Senate to produce the transcripts would have the effect of reversing the Senate’s decision to asking them to provide the transcripts and would also have the effect of reversing the senators’ decision to hold the hearings involving Senator Raymond Lavigne in private. I would then be making public what the Senate did not wish to make public. The Senate can decide to hold its sessions in private; this is a recognized parliamentary privilege and the Senate is not required to establish the necessity for it.

[104] Having found that the activity at issue fell within the scope of the privilege, Justice Lalonde said he could not question whether the Senate had any justification for refusing to provide Senator Lavigne with the transcripts. In his words:

My role is simply to make a finding as to whether or not the claimed parliamentary privilege exists. If I find that there is a parliamentary privilege, as I do in this case, it is not for me to determine how it should be applied in a particular case.

[105] Where a plaintiff makes allegations in a statement of claim that something was said in parliament, the defendant may seek to have that allegation struck, on the ground that parliamentary privilege applies:

The proceedings of a legislative body are absolutely privileged and words spoken in the course of a proceeding in Parliament can neither form the basis of nor support either a civil action or a criminal prosecution.

[106] Ontario v. Rothmans Inc., 2014 ONSC 3382, 374 D.L.R. (4th) 175 is a good example how a court should approach allegations in a statement of claim that are subject to privilege. The Ontario government sued various tobacco companies, claiming that they had misrepresented the health risks of smoking. It alleged that some of these misrepresentations had been made to parliamentary committees. The defendant companies applied to strike these allegations, on the basis that any statements to such committees were subject to privilege. Justice Conway granted the motion to strike, rejecting the government’s argument that it was inappropriate to do so in the absence of evidence on the context in which the statements were made:

[B]ecause the immunity is absolute, any self-serving motivations of the person participating before the committees would not affect the privilege. Motive is irrelevant to an absolute privilege. In Roman Corp. v. Hudson’s Bay Oil & Gas Co., the court struck out a statement of claim noting that it had “no power to inquire into what statements were made in Parliament, why they were made, who made them, what was the motive for making them or anything about them”.

Once a person attends and participates in a parliamentary committee proceeding, the absolute privilege applies to his statements made in the course of that proceeding, with the result that the statements cannot be used in a civil action against him. The surrounding circumstances are simply not relevant. In this case, the Crown had pleaded that the defendants made the Presentations to various House of Commons standing committees and federal legislative committees. That is sufficient to invoke the privilege.

Does the privilege apply here?

[107] The amended statement of claim includes many allegations about statements made before the CIBA and in the Senate generally. For example, Senator Duffy makes allegations about the contents of CIBA reports, and complains that the Twenty-Sixth report is inconsistent both with the Twenty-Second Report and the Deloitte audit. The CIBA reports and the audit report are subject to parliamentary privilege. Following Rothmans, any allegations about them must be struck.

[108] Senator Duffy argues that I should not strike these allegations for two reasons. First, he says that the Senate has waived its privilege. Second, he says that he will not necessarily need any privileged evidence to prove his case, and it would be premature to strike the allegations in his statement of claim at this stage of the lawsuit.

(a) Has the Senate waived the privilege?

[109] Senator Duffy argues that the Senate waived its right to invoke parliamentary privilege over freedom of speech when the CIBA referred the issue of Senator Duffy’s acceptance of money from Nigel Wright to the RCMP, and when it co-operated with the investigation and prosecution of criminal charges against him. Citing Rothmans, he contends that “the waiver of parliamentary privilege is the same as waiving any other kind of privilege”.

[110] I do not agree that the decision in Rothmans stands for the proposition that parliamentary privilege is the same as other types of privilege. The paragraph cited by Senator Duffy’s counsel simply states that:

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

[111] The judge in Rothmans, citing Royal Canadian Mounted Police (Deputy Commissioner) v. Canada (Attorney General), 2007 FC 564, [2008] 1 F.C.R. 752 (T.D.), concluded that a waiver of parliamentary privilege must be expressly made, and that there was nothing to indicate that the waiver had been made in that case. As a result, he struck the allegations in the statement of claim with respect to the defendants’ representations in the House of Commons.

[112] In his amended statement of claim, Senator Duffy does not explicitly allege that the Senate waived its privilege. The only fact pleaded that might suggest any kind of waiver is the CIBA’s referral to the RCMP of his acceptance of money from Mr. Wright. At his criminal trial, Senator Duffy argued that this amounted to an implicit waiver of the Senate’s privilege. Justice Vaillancourt ruled against him on this issue. He held that a waiver of parliamentary privilege requires a constitutional enactment using clear and unambiguous language. The fact that the documents at issue had been disclosed or are public is irrelevant.

[113] Senator Duffy argues that I should infer waiver based on the Senate’s failure to contest the calling of Senate officials and employees as witnesses at his criminal hearing, and the production of internal Senate documents in that proceeding. He does not however allege this in his statement of claim. Even if he had done so, I would need to find that the Senate’s failure to invoke privilege at any given time means that it has lost its ability to do so going forward. Senator Duffy provided no authority for this proposition.

[114] Since parliamentary privilege is a constitutional principle, it cannot be implicitly waived. I find that there is no conduct alleged in the statement of claim that would indicate, clearly and unambiguously, that the Senate waived its privilege.

(b) Is it premature to strike the allegations?

[115] Senator Duffy said that I should not assume that, in order to prove his case against the Senate, he would need to call witnesses who had testified before the CIBA, or the senators who allegedly took steps to interfere with the Deloitte investigation and directed the Twenty-Sixth Report. He suggested that Justice Vaillancourt’s findings of fact in his criminal trial would suffice to prove his allegations against the Senate.

[116] I have a great deal of trouble seeing how this could work. But even if I accepted that Senator Duffy did not need to call his fellow senators or Senate representatives to testify, there is no question that he would have to introduce the CIBA reports, and the Deloitte audit report, and records of Senate proceedings, into evidence at trial. These are the very sorts of records that Senator Duffy sought to produce at his criminal trial, and that Justice Vaillancourt concluded were privileged.

[117] In any event, on a motion to strike like this, I must take the pleadings as they are. If I find that the plaintiff has made allegations about statements subject to parliamentary privilege, I must strike them. I cannot wait and see whether the allegations may not turn out to be essential to the plaintiff’s case or that evidence could be adduced later on to show that the privilege was waived.

[118] I conclude that many of the allegations in the statement of claim refer to speech protected by parliamentary privilege and so must be struck.

Conclusion

[119] For the reasons set out here, I conclude that Senator Duffy’s legal claim against the Senate is based on actions and speech that fall squarely within the scope of established parliamentary privilege. The decision to suspend Senator Duffy is subject to the Senate’s privilege to discipline its members. The investigation of his living allowance and claims for reimbursement are protected by the Senate’s privilege to manage its internal affairs. The CIBA investigation and the processes leading to the decision to suspend Senator Duffy fall within the Senate’s privilege over its proceedings. Parliamentary privilege immunizes all of the decisions and conduct underlying Senator Duffy’s claim against the Senate. As a result, this court has no role in judging their lawfulness or fairness.

[120] The allegations in Senator Duffy’s statement of claim about statements and reports in the Senate are furthermore subject to the Senate’s privilege over freedom of speech. The Senate has not waived this privilege. As a result, all such allegations must be struck. These allegations are fundamental to Senator Duffy’s claims of malicious prosecution, misfeasance in public office, unjust enrichment, unconstitutional actions and violations of his Charter rights. There would be no point in granting Senator Duffy leave to amend his statement of claim, because there would be no way for him to assert his claim absent reference to privileged speech.

[121] This court, and Senator Duffy, must respect Canada’s constitutional framework. The separation and independence of the legislative, executive and judicial branches of our government is a fundamental aspect of that framework. The decisions at issue here are within the exclusive power of the Senate to make. Allowing a court to revisit them, or to compel production of privileged material, would interfere with the Senate’s ability to function as an independent legislative body, coequal to other branches of government.

[122] The Senate’s motion to dismiss Senator Duffy’s action against it is therefore granted.

[123] If the parties cannot agree on costs, the Senate may make written costs submissions within ten days of release of this decision. Senator Duffy may make responding costs submissions within ten days of receipt of the Senate’s submissions. Submissions should not exceed three pages in length in addition to a costs outline. Counsel should forward the submissions to me at my office at 161 Elgin Street. If I do not receive submissions within the deadline set out here, I shall assume that the parties have resolved the issue of costs.

Justice Sally Gomery Released: December 14, 2018

Court File and Parties (Duplicate)

COURT FILE NO.: 17-73728 DATE: December 14, 2018 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Senator Michael Dennis Duffy Plaintiff/Respondent – and – The Senate of Canada Defendant/Moving Party – and – The Attorney General of Canada REASONS FOR JUDGMENT Justice S. Gomery Released: 2018-12-14

Footnotes

[1] Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 (“Charter”).

[2] Senator Duffy is also suing the Royal Canadian Mounted Police, represented in these proceedings by the Attorney General of Canada. The Attorney General is not taking any position on the motion.

[3] J.P. Joseph Maingot, Parliamentary Privilege in Canada, 2d ed. (Montreal: McGill-Queen’s Press, 1997) (“Maingot”) at p. 12, cited in Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667 at para. 29.

[4] New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319 (“NB Broadcasting”) at p. 389.

[5] Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876 (“Harvey”) at p. 922.

[6] 30 & 31 Vict., c. 3 (U.K.).

[7] R.R.O. 1990, Reg. 194.

[8] Operation Dismantle Inc. et al v. The Queen et al, [1985] 1 S.C.R. 441 at pp. 486-87; Hunt v. T & N plc, [1990] 2 S.C.R. 959 (“Hunt”) at pp. 977-979; Connor v. Scotia Capital Inc., 2018 ONCA 73, [2018] O.J. No. 394 (“Connor”) at para. 3.

[9] Hunt supra note 9 at pp. 977-978; Connor supra note 9 at para. 3.

[10] Hunt supra note 9 at p. 979.

[11] (UK), 1 Will & Mar Sess. 2, c. 2 (“Bill of Rights, 1689”).

[12] Ibid.

[13] Maingot supra note 3 at p. 12, cited in Villeneuve v. Northwest Territories (Legislative Assembly), 2008 NWTSC 41, 85 Admin. L.R. (4th) 281.

[14] R.S.C. 1985, c. P-1.

[15] Ibid.

[16] Vaid supra note 3 at para. 29.

[17] NB Broadcasting supra note 4 at p. 389.

[18] Ibid at para. 29.

[19] Bradlaugh v. Gossett (1884), 12 Q.B.D. 271 (D.C.) at p. 275.

[20] Vaid supra note 3 at para. 29.

[21] Ibid at para. 37.

[22] Harvey supra note 5 at p. 918.

[23] NB Broadcasting supra note 4 at p. 384.

[24] Harvey supra note 5 at pp. 910-11 and 917-18.

[25] Ibid at pp. 910-11.

[26] Vaid supra note 3 at pp. 700-01.

[27] Ibid at p. 686.

[28] 2018 SCC 39, 40 Admin. L.R. (6th) 1 (“Chagnon”).

[29] Bradlaugh supra note 22 at p. 275.

[30] Canada Elections Act, S.C. 2000, c. 9.

[31] Section 3 provides that “Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein”.

[32] Harvey supra note 5 at p. 914.

[33] J.G. Bourinot, in Parliamentary Procedure and Practice in the Dominion of Canada (2d ed. 1892), at pp. 193-94, cited in Harvey supra note 5 at pp. 920-921.

[34] Harvey supra note 5 at p. 926.

[35] Harvey supra note 5 at p. 926.

[36] Ibid at p. 918.

[37] R.S.C. 1985, c. M-5.

[38] SOR/98/126.

[39] Vaid supra note 3 at para. 4.

[40] Vaid supra note 3 at para. 4.

[41] (1878), , 2 S.C.R. 158 (“Landers”).

[42] Maingot supra note 3 at p. 277.

[43] Villeneuve supra note 15.

[44] Ibid at paras. 34-36,

[45] 2016 QCCS 6146, 2016 CarswellQue 11909 (“Filion”).

[46] Ibid at para. 22.

[47] R. v. Chaytor, [2010] UKSC 52, [2011] 1 A.C. 684;

[48] Ibid at para. 122.

[49] Duffy application, at paras. 111-113.

[50] 2017 FC 942, 2017 CarswellNat 6051 (“Boulerice”).

[51] Ibid at paras. 21-22 (citations in para. 22 omitted).

[52] Ibid at paras. 26-27.

[53] Parliament of Canada Act supra note 17, s. 19.1(3).

[54] Ibid, s. 19.1(4).

[55] R.S.C. 1985, c. F-7.

[56] Ibid, s. 19.3.

[57] Ibid, s. 19.5(1).

[58] Ibid, s. 19.6(1).

[59] Ibid, s. 19.8.

[60] (1839), 9 Ad. & E.1 in Bradlaugh supra note 22 at p. 279.

[61] NB Broadcasting supra note 4 at p. 386.

[62] Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40, 20 C.E.L.R. (4th) 1 (“Mikisew”) at para. 37. Within this passage, the majority cited Vaid supra note 3 at para. 29, point 10; Maingot supra note 3 at pp. 166-71; see also NB Broadcasting supra note 4 at p. 385; P. W. Hogg, Constitutional Law of Canada, 5th ed. (Toronto: Carswell, 2007) (loose-leaf supp.) at s. 1.7; Bill of Rights of 1689 supra note.

[63] NB Broadcasting supra note 4 at p. 385.

[64] Maingot supra note 3 at p. 31, cited in Ontario v. Rothmans Inc., 2014 ONSC 3382, 374 D.L.R. (4th) 175 (“Rothmans”) at para. 12.

[65] Ibid at pp. 36-37, cited in Rothmans supra note 71 at para. 13 (emphasis added in Rothmans omitted).

[66] Ibid at p. 77, cited in Rothmans supra note 71 at para. 13.

[67] Prebble v. Television New Zealand Ltd., [1995] 1 A.C. 321 (P.C.) (“Prebble”) at p. 334.

[68] (2005) FC 576, [2005] 3 F.C.R. 535 (T.D.) (“Gagliano”). The Sponsorship Inquiry was the Commission of Inquiry into the Sponsorship Program and Advertising Activities established in February 2004 to investigate irregularities identified by the Auditor General of Canada.

[69] Ibid at paras. 108-10.

[70] Ibid at paras. 108-10.

[71] Royal Canadian Mounted Police (Deputy Commissioner) v. Canada (Attorney General), 2007 FC 564, [2008] 1 F.C.R. 752 (T.D.) (“RCMP Commissioner”).

[72] RCMP Commissioner at para. 65, citing Pepper (Inspector of Taxes) v. Hart, [1993] A.C. 593 (H.L.); Hamilton v. Al Fayed (No. 1), [2000] 2 All E.R. 224 (H.L.).

[73] (2008), , 91 O.R. (3d) 728 (S.C.J.) (“Lavigne”).

[74] Ibid at para. 23.

[75] Ibid at para. 48.

[76] Duffy application, at para. 91.

[78] Stopforth v. Goyer (1978), 20 O.R. (2d) 262 (H.C.J.), rev’d on other grounds (1979), , 23 O.R. (2d) 696 (C.A.), at p. 269. See also: Janssen-Ortho Inc. v. Amgen Canada Inc., rev’d in part on other grounds (2005), , 256 D.L.R. (4th) 407 (Ont. C.A.).

[79] Rothmans supra note 71.

[80] Ibid at paras. 31-32.

[81] Ibid at para. 21.

[82] Ibid at para. 35.