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CROWN - Crown Privilege - Parliamentary Privilege - Practice and procedure - Evidence

Tuesday, April 04, 2017 @ 8:39 AM  


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Appeal by the Board of Internal Economy and the Speaker of the House of Commons from a Federal Court decision affirming a prothonotary's refusal to strike affidavit evidence. The respondents were past and present NDP MPs who sought to challenge decisions by the Board concerning the use of parliamentary funds and resources by the NDP for political mass mailing communications. The appellants moved to strike the proceedings on jurisdictional grounds, arguing the matters raised were within the exclusive privilege and purview of the House of Commons. The respondents filed an affidavit sworn by a law professor describing himself as a constitutional expert. The affidavit presented evidence of a worldwide trend to construe parliamentary privilege narrowly, and opined that administration of expenses did not fall within the common law concept of parliamentary privilege in various other commonwealth jurisdictions. The appellants brought a motion to strike the affidavit on the basis it contained legal argument rather than conveyed facts within the knowledge of the deponent. The prothonotary found no special circumstances justifying striking the affidavit at the present early stage of the proceeding. The Federal Court affirmed the prothonotary's discretionary decision. The appellants appealed to the Court of Appeal.

HELD: Appeal allowed. The Federal Court judge erred in upholding the prothonotary's order and in not striking the affidavit. It could not credibly be contended that the affidavit was a factual brief providing neutral information regarding the historical development of parliamentary privilege, and on comparative foreign law. A careful reading of the affidavit revealed it was not limited to factual matters, and was rife with legal opinion. The affidavit did not provide evidence necessary to enable a judge to appreciate the technical aspects of the matters in issue. It instead sought to advocate for a more restrictive interpretation of parliamentary privilege in light of recent developments in foreign law and practice. The affidavit was inadmissible and did not fall within the exception afforded to experts. The appropriate remedy was to strike the affidavit at the present juncture.

Boulerice v. Canada (Attorney General), [2017] F.C.J. No. 255, Federal Court of Appeal, A.F.J. Scott, R. Boivin and Y. de Montigny JJ.A., March 7, 2017. Digest No. TLD-Apr32017006