Legal and Social Affairs Division
Ten years ago, in May 2005, the Supreme Court of Canada released a landmark decision that clarified the scope and application of parliamentary privilege.
The decision, in Canada (House of Commons) v. Vaid, was the third parliamentary privilege case heard by the Supreme Court following the advent of the Canadian Charter of Rights and Freedoms in 1982. It was the one and only case involving a federal house of Parliament.
Its legacy lies in three areas:
- how it defined parliamentary privilege;
- the necessity test it developed to determine the scope or parameters of a claimed privilege, and;
- its reference back to the houses of Parliament to determine how best to exercise validly claimed privileges in a manner consistent with other elements of the Constitution, in particular the Charter.
How the Vaid case unfolded
The Vaid case arose from complaints of discrimination and harassment made by the former chauffeur of the Speaker of the House of Commons, Mr. Satnam Vaid, against both the Speaker and the House of Commons after Mr. Vaid’s position was declared surplus.
Mr. Vaid sought to have his complaints investigated by the Canadian Human Rights Commission (CHRC).
In response, the Speaker and the House of Commons asserted parliamentary privilege in relation to “management of employees”. Consequently, they challenged the CHRC’s jurisdiction to investigate Mr. Vaid’s complaints.
Defining parliamentary privilege
In Canada, parliamentary privilege is enshrined in the Constitution Act, 1867, in section 18 and through its preamble. It is further confirmed in section 4 of the Parliament of Canada Act.
In the Vaid decision, the Supreme Court defined parliamentary privilege as follows:
Parliamentary privilege in the Canadian context is 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.
In defining privilege, the Court emphasized that Parliament is not immune from the ordinary laws of the land. Rather, in cases where privilege applies, jurisdiction to address complaints related to the privilege lies with the particular house of Parliament.
Lower court rulings had held that acts of discrimination pursuant to the Charter or the Canadian Human Rights Act could not be protected under the guise of parliamentary privilege. In these situations, they submitted, the courts could essentially examine how a privilege was being exercised.
The Supreme Court, however, disagreed with this approach, noting that Parliament has exclusive jurisdiction to address issues within the recognized parameters of privilege.
The question for the courts, then, is not whether Parliament is exercising its recognized privileges properly (that is up to Parliament to decide). Rather, it is whether, and to what extent, a claimed privilege exists.
Evaluating the necessity of privilege
To this end, the Supreme Court set out a framework to determine the existence and scope of a claimed privilege, grounded in the necessity of parliamentary privilege to enable parliamentarians to do their jobs:
- First, has the claimed privilege been authoritatively established in Canada’s Parliament or in the Parliament of the United Kingdom at Westminster?
- If not, is the claimed privilege necessary for Parliament to properly function as a legislative and deliberative body (including holding the government to account)?
Using this framework the Supreme Court determined that the claimed privilege of “management of employees” did not qualify as an established or necessary privilege.
Privilege and the Charter
Finally, the Supreme Court reiterated an observation that it had made in an earlier case pitting parliamentary privilege against protections found in the Charter.
In New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), it had ruled that “one part of the Constitution cannot abrogate another part of the Constitution”.
Rather, the Court emphasized that 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”.
According to the Court, it is incumbent upon Canada’s houses of Parliament to determine how they wish to exercise their collective and individual privileges, and whether to do so in a way that is consistent with the other elements of the Constitution such as Charter.
Looking ahead: The future of parliamentary privilege
In the decade since the Vaid decision, lower courts have had many occasions to apply its principles. While the results have not always been consistent, the Supreme Court itself has offered no further clarification of parliamentary privilege.
More recently, however, a parliamentary committee has studied whether and how the exercise of privilege could be adapted to ensure consistency with contemporary constitutional norms, such as those expressed in the Charter.
The Standing Senate Committee on Rules, Procedures and the Rights of Parliament established a Subcommittee on Parliamentary Privilege to examine the subject.
It produced a position paper entitled A Matter of Privilege: A Discussion Paper on Canadian Parliamentary Privilege in the 21st Century. The document is intended to serve as a tool to invite discussion on the future of parliamentary privilege in Canada. This paper was subsequently adopted as an interim report of the Standing Senate Committee on Rules, Procedures and the Rights of Parliament (on 12 May 2015).
According to the position paper, this discussion should centre on how privilege should be exercised in a rights-based legal system exemplified in Canada by the Charter.
The position paper recommends that the federal houses of Parliament should proactively re-evaluate and reconsider parliamentary privilege in the Canadian context, building on the framework set out in Vaid. This would involve reassessing privilege in a way that allows Parliament to function properly without infringing on the rights of others.
At the 10th anniversary of the Vaid decision, the law of parliamentary privilege in Canada continues to evolve. While the Standing Senate Committee on Rules, Procedures and the Rights of Parliament has acknowledged the Supreme Court’s suggestion that a parliamentary body explore how privilege can be exercised in “compliance with human rights and civil liberties”, its work has only just begun.
If, however, Parliament does not evaluate its privileges in the context of the Charter, the courts might again step in.
As has been observed in a United Kingdom Joint Select Committee Report on Parliamentary Privilege: “If Parliament does not act, the courts may find themselves compelled to do so.” This possibility makes Parliament’s work on privilege all the more important.