The law of Parliament in Canada with respect to privilege is now substantially
clearer due to a unanimous decision of the Supreme Court issued on May
20th, 2005. In this landmark decision, entitled House of Commons and the
Honourable Gilbert Parent v. Satnam Vaid and the Canadian Human Rights
Commission (Vaid) the Court established criteria to clearly evaluate the
validity of a claim of privilege and presented an analysis that framed
the use of privilege in a contemporary setting.
The specific issue before the Supreme Court involved the broad nature and
scope of privilege over internal affaires claimed by the House of Commons.
In a decision written by Mr. Justice Binnie, the position taken by the
Commons was rejected and it was affirmed that the
Canadian Human Rights
Act (CHRA), like all statute law, does apply to parliament.1 However,
in this case the Court agreed that the employee could resolve his grievance
through the Parliamentary Employment and Staff Relations Act, 1985 (PESRA).
Aside from the importance of the decision itself, there are several features
about the case that make it quite remarkable. Contrary to all precedent,
the Attorney General intervened against the House of Commons to assert
the constitutional importance of the CHRA. Equally without precedent, two
Senators took the step of intervening to argue for a narrower understanding
of privilege. Finally, the Court relied on a British Parliamentary report
for its understanding of how privilege should be understood and applied.
It also used the same report to make a critical assessment of a British
court case which the House of Commons had relied upon in making its arguments.
As already indicated, the Court determined that the former chauffeur of
the Speaker (Mr. Vaid) could use the Parliamentary Employment and Staff
Relations Act, 1985 to review his complaint of constructive dismissal on
the basis of discrimination. In reaching this conclusion, the Court inadvertently
created a situation of unequal protection of employees of Parliament that
needs to be redressed.
Why is Privilege Necessary?
The Law of Parliament is obscure, convoluted, difficult to tackle, and
sometimes buried in historical precedents, conventions and traditions that
are not easy to decipher. Privileges, or in modern parlance the Rights
of Parliament, are little understood or appreciated by the average MP or
Even the mere word privilege in the contemporary context of democracy
often leads to the impression that it is entrenched in a society of another
era. It is therefore not particularly marketable in todays populist climate
where the use of the word arouses suspicion. Yet without these special
rights, parliament could not function effectively because it could not
conduct its business as freely and as openly as is needed to fulfill its
function. Hence it is easy to understand why MPs and Senators need to
possess privileges and rights; they are the immunities which are essential
to the performance of their duties in the House or Senate Chamber. It may
seem obvious, but it is in fact essential to the efficient and dignified
functioning of Parliament to be shielded from Court intervention.
It is worth noting that in the last fifteen years there have been more
decisions made by the courts on the issue of alleged privileges than ever
before (or at least since Confederation in 1867), whether at the federal,
provincial or territorial level2. This trend, concurrent with the culture
of rights that now permeates Canadian society, is a healthy phenomenon
but carries challenges for every Canadian legislature.
The decision of the Supreme Court in Vaid is the latest case in this effervescent
period of judicial activity on parliamentary privilege. It provoked a timely
reflection on the sum of all of the recent decisions and what conclusive
principles should be derived from that legal heritage.
The Inaction of Parliament
Notwithstanding the importance of the subject, no MP saw fit to raise this
issue in the House of Commons. 3 The House did not ask the Senate to join
in support of its claim of privilege on the management of all employees
of parliament, even though, according to the Constitution Act, 1867, both
Houses share the same privileges.
The Senate itself did not intervene at any level in those proceedings.
An explanation for the inaction is that both sides in the Chamber could
not agree on a rationale for the arguments, despite the fact that the Senate
Standing Committee on Rules, Procedure and the Rights of Parliament held
eight meetings and heard at least ten expert witnesses.4
All excuses aside, how can one deny human rights protection to approximately
5000 employees of Parliament in a post-Charter Canadian society?5 It offends
any sense of fairness that in joining the staff on the Hill, basic human
rights protections are forfeited. Ultimately, beyond the legal arguments
lies first and foremost the concept of human dignity.
This strongly held belief motivated two senators to seek intervener status
in the Supreme Court.6 It probably also incited the Minister of Justice
and Attorney General of Canada, the Hon. Irwin Cotler to join in the case.
What is exceptional is that the Minister intervened to deny that such a
privilege over management of all employees ever existed and to support
the protection of CHRA for the employees of parliament, even though the
Attorney General, as the procurer of the House of Commons, usually stands
behind the legal proceedings of that House, according to the parliamentary
principle and convention of Responsible Government. This was indeed an
unprecedented phenomenon in the annals of parliament!7
The core of the Courts decision, and the focus of the arguments heard
by the Court, was based on the following constitutional question framed
by Madam Chief Justice McLachlin:
Is the Canadian Human Rights Act, R.S.C. 1985, c. H-6, constitutionally
inapplicable as a consequence of parliamentary privilege to the House of
Commons and its Members with respect to parliamentary employment mattersquestion
The lawyers for the House of Commons maintained that management of all
employees fell within the ambit of the internal affairs of parliament.8
The Court, in exploring the meaning and scope of the expression proceedings
in parliament, established very specific boundaries or parameters to the
a) not everything that is said or done within the Chamber during the transaction
of business forms part of the proceedings of parliament (para 43)
b) the privileged areas must be so closely and directly connected with
the proceedings of parliament that intervention by the courts would be
inconsistent with parliaments sovereignty as a legislative and deliberative
assembly (para 44).
The Court ultimately rejected the position advocated by the lawyers of
the Commons9 that the management of all employees was covered under privilege
and that the CHRA did not apply, thus preventing the Human Rights Tribunal
from receiving any complaint that might be made by an aggrieved employee.
In its analysis of the claim to privilege, the Court sought to establish
whether or not the alleged privilege had been legislated by parliament
(as empowered in s.18 of the Constitution Act, 1867), or if it had been
recognized through practice as being necessary for the efficient functioning
of the House in its legislative and deliberative role and in its capacity
to hold the government accountable.
The Court rejected a view held by some parliamentarians that it is sufficient
simply to assert a privilege and that the Court must recognize it without
question. This opinion may stem from a superficial reading of the Parliament
of Canada Act in section 5:
The privileges, immunities and powers held, enjoyed and exercised [by parliament]
are part of the general and public law of Canada and it is not necessary
to plead them but they shall, in all courts in Canada, and by and before
all judges, be taken notice of judicially.
However, the purpose of this provision is to limit the role of the Court
only when dealing with a privilege that has been recognized. It is not
intended to restrict the Court from reviewing the existence and scope of
an alleged privilege as in this case. Rather, section 5 asserts that privileges
are part of the law, as will be admitted by the courts.
When Parliament establishes privileges, it cannot go beyond those in force
in the UK House of Commons at the time (s.18). The Court stated its right
to review any unilateral assertion of privilege by the British House of
Commons as any court in Britain would do. The Supreme Court then quoted
extensively from the 1999 British Joint Report of the House of Commons
and the Lords10 as a reliable source of information on the current status
of privilege at Westminster. As Justice Binnie explained, Its reasoning
a considered parliamentary view of the appropriate limits to claims of
privilege, which seems to me also to reflect the underlying principles
of the common law.(para. 45)
The necessity test remains of paramount importance with respect to a
claimed privilege, particularly if the exercise of the alleged power
affects a non-parliamentarian. Quoting the judgment of Stockdale v Hansard,
the Court held that the necessity of the claimed privilege has to be
clearly established, considering that the power to invade the rights of
others, is a very different thing: it is to be regarded, not with tenderness,
but with jealousy; and, unless the legality of it be most clearly established,
those who act under it must be answerable for the consequences.(para.
The Court reaffirmed strongly the purposive connection between necessity
and the legislative function (para. 43, 44). The concept of legislative
function is entrenched in the terms proceedings in Parliament or internal
affairs (cited in section 9 of the Bill of Rights 1689). According to
the Court, it is only when parliament is engaged in the performance of
its deliberative and legislative duties that Parliament is carrying out
its core responsibilities.
The Burden of Proof
Where necessity is used to claim the privilege, the Court stated that there
is a burden of proof that must be met by the claimant. That burden, according
to the Court, must be closely and directly related to the functions of
the assembly as a legislative and deliberative body. Assessing critically
the arguments of the House of Commons, Justice Binnie relied closely on
the British Joint report, which had expressed misgivings about any broad
assertion of privilege over the management of all employees. Thus the Court
took a rather restrictive approach in determining what could be deemed
necessary to the efficient functioning of parliament. It circumscribed
the categories of potential privilege related to proceedings in parliament
to a much more limited number of subjects and narrowed the extent of its
scope. In particular, the Court doubted the assertion of privilege when
the person affected is a non-parliamentarian. The proximity of that person
to the legislative/deliberative function needs to be taken into account
to determine the scope of the privilege, once that category has been recognized.
Having disposed of the arguments based on necessity, the Court then turned
to judicial decisions cited by the House in support of its claim. In doing
so, the Court addressed another claimed privilege: that parliament is a
statute free zone, not bound by the provisions of any statute unless
parliament has been explicitly included. This position, as it turns out,
is based on an elastic interpretation of the English court decision known
as R. v. Graham-Campbell, (ex parte Herbert), that was rendered in 1935.11
From this judgment, which concerned the unlicensed sale of alcoholic beverages
within the parliamentary precincts, it has been generally asserted that
statute law does not apply to parliament. The Court did not accept this
generous interpretation of privilege used by the Commons in support of
its allegation that the CHRA did not apply to its employees. Like the British
Joint Report, the Supreme Court also resoundingly rejected the wide conclusions
drawn from ex parte Herbert since 1935, and basically turned the interpretation
of the decision completely on its head. In other words, all statute law
applies to parliament unless there is an express exclusion in the Act.12
This conclusion is much more in line with the principle of the Rule of
Law and with the arguments raised by the Court when it asserted the nature
of privilege and its scope. Parliament is not above the law.13 In reviewing
the provisions of CHRA the Court could not identify any section that would
have excluded parliament from its application.14
The Vaid Decision and the Charter of Rights
Despite the extensive analysis made by the Court in reviewing the constitutional
nature of privilege, there was only a cursory discussion of the relationship
of privilege to the Charter.15 However, the Court made important comments
that departed from its previous decisions in New Brunswick Broadcasting
Co v. Nova Scotia (Donahoe)16
and in Harvey v. New Brunswick (Harvey).17
First, the Court asserted that the decision of the Federal Court of Appeal
that the CHRA applied on the basis of an alleged claim of discrimination
was wrongly motivated. It concluded that a recognized privilege is not
displaced by a claim of violation of a Charter right.
Second, the Court restated Donahoe where it was recognized that parliamentary
privilege is as much a part of our fundamental constitutional arrangement
as the Charter itself. One part of the Constitution cannot abrogate another
part of the Constitution (at para. 33, emphasis added). In the words of
Chief Justice McLachlin, the Court has to balance both to find the proper
At the same time, the Court dismissed the minority opinion by Chief Justice
Lamer in Donahoe where he concluded that the power of Parliament to legislate
its privileges brings it under the ambit of the Charter as much as any
other legislative initiative.
Third, the Court affirmed that the comments on privileges contained in
Harvey (among others those of Chief Justice McLachlin) were obiter and
that the decision of the case was made on other grounds. The Court in fact
distanced itself from the interpretation of Justice McLachlin where she
suggested that the scope of a privilege should be balanced with the protection
afforded in the Charter.
Fourth, the Court made a reservation: it expressed the possibility to intervene
in the context of an allegation of systemic discrimination.
In other words, once a privilege has been recognized, any allegation of
discrimination that runs contrary to the Charter, a constitutional right,
or the quasi-constitutional protections recognized in CHRA, it is for parliament
only to choose whether or not to entertain such a complaint. There is nothing
the Court can do to bring the complaint to a fair hearing and an acceptable
resolution. Parliament becomes off limits to a judicial intervention, be
it a parliamentarian or a non-parliamentarian who would be grieving.
As long as a privilege has been recognized, it is only up to parliament
to act or not act on an alleged discrimination complaint.
The Court stopped short of inviting parliament to establish an internal
complaint mechanism, even though doing so would recognize the spirit of
a chartered parliamentary democracy. Should we not uphold the essence
of the rule of law, one of the underlying principles of our Constitution,
identified by the Court in 1998, by having Parliament adopt in its rules
a formal complaint resolution process?18
Limited Protection of the Employees Through PESRA
The Supreme Court stated that CHRA applies to all employees of Parliament,
but that Mr. Vaid should use the grievance procedure provided by PESRA
since he is a member of a category of employees covered by that Act.
A large number of the employees of parliament are in fact covered by PESRA
and the Court ruled that they would therefore have to use its grievance
procedure to seek redress for an alleged human rights violation even though,
contrary to CHRA protection, there is no judicial review of an arbitration
decision. However, PESRA does not provide employees under its protection
the same human rights protection that is now afforded to all employees
of the public service through the new Public Service Labour Relations Act,
2003 (PSLRA). This new Act provides for an efficient grievance process
that includes a human rights component: adjudicators may give monetary
relief for pain and suffering and/or special compensation for willful or
reckless behaviour. Notice must also be given to the Human Rights Commission
to grant it standing to appear before the adjudication, thus providing
its expertise when necessary!19
PESRA should then be amended to provide a similar system of protection
for grievance based on alleged human rights discrimination. Employees who
are not covered by PESRA continue to be protected by CHRA and its system
of complaints, reviewable by the courts.20
As for the protection of the human rights of those employees who could
be covered by privileges, the Court recognized that: it would be within
the exclusive competence of the legislative assembly itself to consider
compliance with human rights and civil liberties.21
The practical implications of the conclusions drawn by the Court are complex
and provide for a patchwork system of protection of the human rights and
civil liberties of employees of parliament; amendments to PESRA need to
be made; and Rules for the Senate and House of Commons should be adopted
to express the responsibility within each Chamber to put in place a grievance
system to deal with the complaints of those employees whose status is privileged.
The procedure that has been pursued up until this point should be reviewed
and adapted according to the conclusions of the Supreme Court.
The practical conclusion of the Vaid decision on the protection of the
human rights of employees of parliament is that it will lead to different
processes of human rights complaints that do not afford equal protection
to employees of parliament. This runs counter to the very notion of human
rights and dignity. If there is a more efficient and uniform system of
protection against discrimination for federal employees as now provided
in PSLRA, there is no philosophical basis for such a differentiation in
the system of protection for the employees of parliament, who are, in the
end, less protected than their colleagues in the Federal Public Service.
This issue has to be addressed jointly by both Chambers of parliament,
inasmuch as the Supreme Court decision in Vaid applies to both Houses equally.
Parliament cannot remain passive or indifferent to the human rights protection
of its employees, while expecting the rest of the country to be in line
with the high standards of human rights protection accepted by Canadians
in a post-Charter society. The strength of parliaments commitment to human
rights should first be demonstrated in its own house.
1. Canada (House of Commons) vs. Vaid (2005) SCC 30.
2. Since 1991 there have been 48 cases at the provincial and federal level
regarding privileges. From 1867-1991, there were only 31 cases (one of
which was decided by the British Privy Council in 1896). (Source: Canadian
Legal Information Institute, 2005.
3. Even though the Hill Times reported the progress of the case as it moved
along through the judicial process. See the Hill Times Wheres the Common
Sense? August 4, 2003, and Senate Committee (divided over House privilege
case) Nov 3, 2003 by Paco Francoli.
4. There were 8 meetings in total. Expert witnesses included: Paul Bélisle,
Clerk of the Senate, Mr. Brendan Keith, Principal Clerk of the Judicial
Office and Registrar of Lords Interests, Hon. Coulter Osborne, Dr. Dale
Gibson, Professor, Professor Peter Mercer, Mitch Bloom, Privy Council Office,
Ron Wall, Parliamentary Operations Director, Mark Audcent, Law clerk and
Parliamentary Council, Robert Marleau, Former Clerk of the House Of Commons,
and Joseph Maingot, former Law Clerk and Parliamentary Council.
5. Library of Parliament, 2005. The Senate has 605, the Library of Parliament
400, the House of Commons 2033, and MPs have 1927 for a total of 4,965.
(Senate figures exclude casual and contract employees.)
6. Senators Mobina S. B. Jaffer and Serge Joyal, sought permission to intervene
jointly on April 6, 2004, and tabled their Factum on June 2nd.
7. In the other seminal decision of the Supreme Court on Parliament privileges
as applicable in Provincial legislature, New Brunswick Broadcasting Corporation
vs. Nova Scotia (Speaker of the Assembly)  S.C.R.319, both Houses
of the federal Parliament intervened in support of a complementary legal
position. The Senate was represented by Justice Ian C. Binnie, then legal
counsel in the firm of McCarthy Tétrault.
8. On that question, the Court refuted the interpretation given by J.P.
9. The House of Commons arguments also failed at the Human Rights Tribunal,
(2001) C.H.R.D., No.15 (QL) the Federal Court, (2002) 2 F.C. 583, and Federal
Court of Appeal, (2003) F.C. 602.
10. House of Lords, House of Commons, Parliamentary Privilege First
Report, March 30, 1999, HM Stationary Office.
11. R. v. Graham-Campbell, (ex parte Herbert), (1935) 1 K.B. 594.
12. The Supreme Court also refused to recognize any substantive content
to a legislative clause deemed to save or protect a privilege (section
4 of PESRA). Moreover, the Court underlined that no privileges extend to
Members on the sole ground that the activity was within the precinct of
13. The Court added that CHRA is a quasi-constitutional document and any
exemption from its provisions must be clearly stated.(para. 81)
14. In the future, Parliament will have to be more attentive to the impact
that legislation it adopted might have on its general operation.
15. On June 29, 2005, Sen. A.R. Andreychuck introduced a motion in the
Senate seconded by Senator S. Joyal, c.p., to authorize the committee on
Rules, Procedure and the Rights of Parliament to study the issue of developing
a systematic process for the application of the Charter of Rights and Freedoms
as it applies to the Senate.
16. New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House
of Assembly)  1 S.C.R.
17. Harvey v. New Brunswick (Attorney General) (1996) 137 D.L.R. 42.
18. Reference re Secession of Quebec,  2 S.C.R.
19. See Human Rights and the Public Service Labour Relations Act, Communications
Magazine, Vol. 31, No.2, Summer 2005, pp.12-14.
20. Letter of the Chief Commissioner of the Canadian Human Rights Commission,
Mary Gusella, dated July 27th, 2005, in response to the letter of June
16th, 2005 from Senator S. Joyal, available online at http://www.sergejoyal.com.
21. The House with one voice, accuses, condemns, and executes Stockdale
v. Hansard, at p. 1171, quoted at para 30 of Vaid.