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GOVERNMENT LAW - Crown - Federal Parliament - Senate - Parliamentary procedure and practice

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Last Updated: Friday, October 02, 2020 @ 11:21 AM

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Appeal by the plaintiff from a decision of a motion judge dismissing his action for damages against the Senate for lack of jurisdiction based on parliamentary privilege. The appellant, a senator, alleged that the Senate acted unlawfully in how it investigated, prosecuted, and suspended him from the Senate for allegedly claiming inappropriate expenses as a senator and by then accepting funds from the Prime Minister’s Chief of Staff to reimburse the Senate for those expenses.

HELD: Appeal dismissed. The appellant’s claims fell within the exclusive competence of the Senate to adjudge according to its own rules. The courts had no jurisdiction to examine the Senate’s impugned conduct because of its established parliamentary privileges to discipline its members and administer its internal affairs, and its privileges over parliamentary proceedings and freedom of speech. The Senate’s acts in investigating the appellant’s expenses as a senator, suspending him from the Senate and taking other disciplinary measures regarding his compensation and benefits, all fell within the scope of the Senate’s established parliamentary privilege to discipline its members. The Senate had exclusive jurisdiction to administer its internal affairs in relation to the allocation of parliamentary resources for members’ allowances and benefits, including decisions on the propriety of the appellant’s expenses. The appellant’s allegations about political interference in the investigation and findings of the Committee on Internal Economy, Budgets and Administration CIBA’s and the Senate’s response in suspending him all targeted conduct within the established parliamentary privilege over proceedings in Parliament. Many of the appellant’s allegations impugned exercises of free speech before the Senate. Even if the claim alleged criminality, this could not defeat the Senate’s claim of privilege. There was no support for the appellant’s contention that the rule of law permitted the courts to scrutinize the legality of conduct within Parliament if that conduct was otherwise protected by parliamentary privilege. Because parliamentary privilege applied to the impugned actions of the Senate, the courts had no jurisdiction to review the appellant’s claim that the Senate breached his Charter rights. Any remedy the appellant sought against the Senate must be pursued with the Senate. Even if parliamentary privilege could be waived, because of the institutional and constitutional character of parliamentary privilege, any waiver would require an express statement, either in legislation or possibly in a parliamentary resolution, that clearly and unambiguously waived the privilege. The statement of claim pleaded no such waiver.

Editor’s note: The headline on this article has been changed for clarity.

Duffy v. Senate of Canada, [2020] O.J. No. 3636, Ontario Court of Appeal, G.R. Strathy C.J.O, J.C. MacPherson and M. Jamal JJ.A., August 28, 2020. Digest No. TLD-September282020010