Parliamentary Privilege, Rule of Law and the Charter after the Vaid Case

Article excerpt

Parliamentary privilege immunises certain activities of legislative bodies and their members from the ordinary law and judicial scrutiny. It seems to place these activities beyond both the ideals and the institutional framework of the rule of law, with potentially serious consequences such as a victim of discrimination having no recourse if the discrimination arose from an action covered by privilege. This paper looks at a recent case and argues that the rule of law and parliamentary privilege, properly understood, support rather than oppose one another. Specifically, legislative actors are entitled to interpret constitutional norms, at the moment they seek to assert privilege. It argues that judges are not the exclusive guardians of the rule of law, and that legislative offices such as the Speaker of the House have a legitimate role to play in upholding it. The author concludes that there is, however, a need for a rationale that confirms the legitimacy of the House's authority to settle disputes between its members within the realm of privilege, while leaving the Court with a principled basis to intervene when the facts so warrant.

Satnam Vaid worked as a chauffeur to three successive Speakers of the House of Commons between 1984 and 1995. He was terminated in January 1995, but successfully grieved the termination pursuant to the Parliamentary Employees Staff Relations Act (PESRA) and was reinstated in August of that same year. Upon his return, Mr. Vaid was told that his position had been designated "bilingual imperative." Lacking French, Mr. Vaid was sent for French language training. In April 1997, Mr. Vaid advised the Speaker that he wished to resume his former duties, but was advised by the Speaker's office that due to a re-organisation his position would become surplus effective May 29, 1997.

Mr. Vaid filed two complaints with the Canadian Human Rights Commission in July 1997, alleging separately that the Speaker and the House of Commons had discriminated against him on the basis of race, colour and ethnic or national origin. He also alleged workplace harassment.

The Speaker and the House challenged the jurisdiction of the Canadian Human Rights Tribunal ("CHRT") on grounds of parliamentary privilege. A majority of the CHRT ruled in Mr. Vaid's favour, and the Speaker and the House sought judicial review. The Federal Court-Trial Division refused their application, and this refusal was subsequently upheld by a unanimous Federal Court of Appeal. The Supreme Court heard an appeal by the Speaker and the House, and unanimously overturned the lower courts. Writing for the full Court, Justice Binnie found that the CHRA did apply to employees of the House, that the appellants had failed to establish the privilege they asserted, but that on the facts of this case the proper forum for the dispute was the regime established by PESRA rather than the CHRT.

Strictly speaking, the Court's extensive reasons concerning privilege are obiter dicta because the Court did not uphold the asserted privilege and therefore its ultimate decision was not based on a successful plea of privilege. Nonetheless, 56 of the 80 paragraphs under the heading "Analysis" deal explicitly with the immunising doctrine, and they essentially reaffirm and elaborate upon the majority judgments in the prior leading case, New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly).

While I will argue that the analytical framework courts should use to test a claim of privilege is still based on the majority judgments in New Brunswick Broadcasting, and differs slightly from the framework proposed in Vaid, the Court's unanimity in Vaid suggests that generally this more recent case is now the leading Canadian authority on parliamentary privilege.

Justice Binnie spent considerable time discussing the constitutional foundation of privilege. The principle has its roots in the preamble of the Constitution Act, 1867. …