Years after his expenses became the subject of political controversy and a criminal prosecution, Senator Mike Duffy of Prince Edward Island has suffered a serious — and potentially lawsuit-ending — setback in his civil claim for damages against the Senate of Canada. On August 28, 2020, the Court of Appeal for Ontario ruled, in Duffy v. Canada (Senate), 2020 ONCA 536, that the Senate’s handling of the “Duffy affair” is immune from judicial scrutiny because of the doctrine of parliamentary privilege. The court’s judgment, written by Justice Mahmud Jamal and concurred in by Chief Justice George Strathy and Justice James MacPherson, illuminates the scope of parliamentary privilege in Canada and its interplay with the jurisdiction of the courts.

What is parliamentary privilege?

Parliamentary privilege is a legal doctrine derived from English law that insulates the legislative activities of Parliament (and of the provincial legislative assemblies) from judicial oversight. The doctrine developed in the late 17^th century out of the British Parliament’s struggle for independence from the Crown and from the common law courts. Over time, it has become entrenched and solidified in parallel with the concept of Parliamentary supremacy.

Parliamentary privilege was received in Canadian law as part of the common law. It finds expression federally in the preamble and s. 18 of the Constitution Act, 1867 and ss. 4 and 5 of the Parliament of Canada Act.

What is this Duffy case about?

The Duffy appeal turned on whether courts can entertain a civil action for damages against the Senate of Canada on the basis of Senator Duffy’s allegations. Senator Duffy claimed that the Senate was liable to him for “malicious prosecution, misfeasance in public office, and unjust enrichment; for disqualifying him as a senator on grounds not provided under s. 31 of the Constitution Act, 1867; and for breach of his rights under the Canadian Charter of Rights and Freedoms” (Duffy, at para. 9).

The Senator’s claim originated in a highly publicized political scandal in which he was alleged to have misused his parliamentary resources. As a consequence of these allegations, Senator Duffy was suspended from the Senate and subsequently charged criminally. He was ultimately acquitted of all criminal charges.

He then sued the Senate. His claim was struck at first instance for want of curial jurisdiction, on the basis of parliamentary privilege (Duffy v. Senate of Canada, 2018 ONSC 7523). The Court of Appeal upheld that decision. In doing so, it confirmed that — at the federal level, at least — parliamentary privilege leaves very little room for courts to scrutinize legislative activity, which includes the management of a chamber’s internal affairs and the disciplining of MPs and Senators.

Principles of parliamentary privilege

In striking Senator Duffy’s claim, the Court of Appeal reiterated the Supreme Court of Canada’s description of parliamentary privilege in Canada (House of Commons) v. Vaid, 2005 SCC 30, at para. 29(2), 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”. The Court underlined the importance of parliamentary privilege to the separation of powers between the legislative, executive, and judicial branches of the state, and noted that parliamentary privilege is a tool to ensure that the legislative branch is able to discharge its duties autonomously, without undue judicial interference (Duffy, at para. 32).

The Court of Appeal applied Vaid’s two-step approach to applying the doctrine or federal parliamentary privilege. Under this framework, the claimant of parliamentary privilege (here, the Senate) has the onus of establishing (1) that the claimed privilege exists and that its scope has been authoritatively established based on British or Canadian precedent, and (2) that applying the asserted privilege is necessary because it is “so closely and directly connected with the fulfillment by the assembly or its members of their functions as a legislative and deliberative body … that the outside interference would undermine the level of autonomy to enable the assembly and its members to do their work with dignity and efficiency” (Duffy, at paras. 33-34).

In contrast to provincial parliamentary privilege — which, unlike federal parliamentary privilege, does not enjoy an express constitutional foundation — federal parliamentary privilege will rarely require the second, “necessity” inquiry. The Court of Appeal explained that this is so because, as Jamal J.A. stated at para. 99 of his reasons:

[T]he constitutional status of [federal parliamentary] privileges has been put beyond question by express constitutional and legislative enactments in s. 18 of the Constitution Act, 1867 and s. 4 of the Parliament of Canada Act…. This is not true of legislated parliamentary privileges at the provincial level, which would likely have to meet the necessity test.

The Court of Appeal held that, in the Duffy case, the Senate could claim the protection of parliamentary privilege with respect to the acts and omissions that were the subject of Senator Duffy’s civil claim. The Court of Appeal confirmed that parliamentary privilege protects Senate’s authority: (1) to discipline its members as it sees fit; (2) to conduct its internal affairs without judicial scrutiny, including by making decisions about how to allocate parliamentary resources for members’ allowances and benefits; and (3) to control proceedings before it, including day-to-day procedure. The Court of Appeal specifically determined that the Senate, like the House of Commons, has the exclusive right to regulate and oversee the use of parliamentary funds by Parliamentarians and to decide how these rules are applied (Duffy, at para. 60).

The Court of Appeal also noted that “the Senate benefits from an established parliamentary privilege over freedom of speech” (at para. 62). While this freedom of speech affords no protection from criminal prosecution for “ordinary crimes” committed within Parliament, it does deprive the courts of jurisdiction to oversee participation in parliamentary processes and decisions that “are integrally connected with proceedings in Parliament” (at para. 80). As Jamal J.A. put it, at paras. 65-66:

Persons exercising the privilege of freedom of speech are accountable only to Parliament….

[M]any of Senator Duffy’s allegations impugn exercises of free speech before the Senate and the [its Standing Committee on Internal Economy, Budgets and Administration]…. [T]hese exercises of free speech in the Senate were part of the Senate’s parliamentary business. The courts therefore have no jurisdiction to adjudicate them.

Senator Duffy argued that the rule of law provides courts an aperture to scrutinize conduct within Parliament. This submission was not well received in the Court of Appeal. The Court maintained that the rule of law and parliamentary privilege are not mutually exclusive concepts and that the protection of parliamentary privilege is, in fact, integral to the rule of law (Duffy, at para. 90).

Accordingly, the Court of Appeal directed Senator Duffy to seek remedies in the Senate, rather than the courts (at para. 91). Parliamentary privilege, it concluded, barred recourse to the latter.

Implications

The Court of Appeal’s strong language on parliamentary privilege confirms that litigation arising out of parliamentary proceedings will be difficult to maintain, and that its success will depend in large measure on the circumstances of a particular case. At the federal level, at least, claimants will generally have to convince courts that their particular set of facts takes them beyond the scope of parliamentary privilege, as it has been understood and applied historically in Britain and Canada.

This is consistent with prior cases. In Vaid, for example, the Supreme Court of Canada held that, while “matters ‘internal to the House’” – such as disputes about which MPs the Speaker calls on during debate – must “be resolved by [the House’s] own procedures” (at para. 20), parliamentary privilege did not immunize the Speaker of the House of Commons or the House of Commons itself of potential liability to a former employee who alleged constructive dismissal. Similarly, in Chagnon v. Syndicat de la fonction publique et parapublique du Québec, 2018 SCC 39, the Supreme Court of Canada concluded that the National Assembly’s management of its security guards was not necessary to the Québec legislature’s fulfilment of its constitutional functions, and thus did not come within the scope of the National Assembly’s (provincial) parliamentary privilege (at para. 44).

Vaid and Chagnon illustrate the limited scope for potential claims against legislative bodies and their officials, despite parliamentary privilege. Duffy illustrates the judiciary’s reluctance to entertain such claims more broadly. For those who, like Senator Duffy, would like to take a parliamentary body to court, the Court of Appeal’s judgment is food for sober second thought.

Case Information:

Duffy v. Canada (Senate),2020 ONCA 536

DATE: August 28, 2020

DOCKET: C66407

Byron D. Shaw is a partner and Adam Goldenberg is an associate in McCarthy Tétrault’s National Appellate Litigation Group. Rauf Azimov is an Articling student in McCarthy Tétrault’s Toronto office.