Court-Free Zones and the Expanding Limits of Parliamentary Privilege.

When a whiff of scandal hits Parliament, at what point can the courts intervene? According to the Federal Court of Appeal, they can’t – at least not where the alleged impropriety in question has to do with how Members of Parliament spend the parliamentary funds that have been allotted to them for official business.

In Canada (Board of Internal Economy) v. Boulerice, 2019 FCA 33, released last month, the Federal Court of Appeal held that decisions by the Board of Internal Economy – a House of Commons management body that oversees use and sanctions misuse of parliamentary funds – were protected by parliamentary privilege and therefore not subject to judicial oversight of any sort.

The question on appeal arose from the Board’s determination that certain sitting New Democratic Party (NDP) Members of Parliament had misused parliamentary funds, and its requirement that the amounts improperly used be repaid. The NDP Members sought judicial review of the Board’s decision at the Federal Court on a variety of grounds, including by alleging that the decision had been arbitrary, contrary to parliamentary rules, politically motivated, and made in bad faith (para. 2).

The Board sought to strike the application for judicial review on the grounds that its decisions were protected by parliamentary privilege, and that it was not a federal board subject to judicial review by the Federal Court pursuant to the Federal Courts Act. At first instance, both arguments were rejected. In reasons drafted by Noël CJ, a unanimous bench of the Federal Court of Appeal allowed the appeal on both counts and struck the application for judicial review.

The Federal Court of Appeal reviewed the jurisprudence on parliamentary privilege, notably Canada (House of Commons) v. Vaid, 2005 SCC 30 and the recent Chagnon v. Syndicat de la fonction publique et parapublique du Québec, 2018 SCC 39, before concluding that the first instance judge had erred in ruling that parliamentary privilege did not apply.

Based on this review of the basic principles, Noël CJ reiterated the underlying foundation of all parliamentary privileges: a shield from judicial review must be necessary for the protection of the dignity and efficiency of the parliamentary body, in this case the House of Commons (para. 60). Necessity must be established for each category of claimed privileges the first time that such a category is proposed. However, once a category to which privilege applies as a matter of necessity has been established, when a specific issue is alleged to fall within that category, it is inappropriate for a court to conduct an analysis of necessity with respect to that matter in particular. That is, “once a legislated parliamentary privilege is shown to come within an established category, necessity need not be proven again” (para. 60, citing Vaid at para. 29(9)).

In that context, the Federal Court of Appeal held that the Board’s decisions relating to the resources used by the Members of the House and with respect to the conduct of Members in using those resources could fall into one of three established categories of parliamentary privilege: internal affairs (para. 94), discipline (paras. 102-103), or “proceedings in Parliament” (paras. 105-111) – which can cover even matters that take place outside the House, provided they are “so closely and directly connected with proceedings in Parliament that intervention by the courts would be inconsistent with Parliament’s sovereignty as a legislative and deliberative assembly” (para. 104).

Without diving too deeply into Noël CJ’s analysis on each of the three points – his reasons are, however, worth reading in their entirety – my own view is that as a matter of existing law, the Federal Court of Appeal got it right in holding that internal Board rules about the allocation of parliamentary resources and the disciplinary decisions imposed on Members of Parliament who do not adhere to such rules fall within these accepted existing categories of parliamentary privilege. On a broad reading of each of the three categories, it is fairly easy to see how oversight of the use of funds that parliamentarians are in principle allotted in order to facilitate their work as legislators and constituency representatives may be characterized as a matter of internal affairs, discipline, or even as being closely related to proceedings in Parliament (in the sense of facilitating such proceedings). In the event it is not so straightforward at first blush, again, I invite readers to go back to Noël CJ’s reasons at paras. 67 through 118.

Moreover, while the question may arise whether it is absolutely necessary for the Board’s particular decisions relating to spending to lie outside the scope of judicial oversight, as Noël CJ pointed out, answering that question would essentially import a second necessity test into the analysis. In his view, “allowing courts to oversee decisions regarding the allocation and use made of parliamentary resources in the context of judicial reviews would seriously challenge the dignity and efficiency of the House” (para. 123).

That said, what interests me the most about the Noël CJ’s reasons is not so much the application of the principles established in Vaid but rather the questions that Noël CJ fails to address, much less answer: more fundamental questions about the nature of parliamentary privilege and the challenges that arise from a permissive approach to establishing new instantiations of this privilege.

First is the matter of the privilege’s scope. Even though the criterion of necessity purports to serve as a restraint on parliamentary privilege’s reach, the Federal Court of Appeal’s decision neatly illustrates the limitations of this approach – since, as the Court correctly indicates, it is only the necessity of a category of privilege that is ever called into question, and only at the first instance the category is alleged to exist. Specific instances of a claimed exercise of parliamentary privilege are not themselves subject to scrutiny for necessity provided they fall within an established category that attracts the privilege.

Yet it is easily conceivable that a category of privilege may be defined so broadly as to permit practically any specific matter to fall within its ambit. Indeed, Noël CJ’s reasons illustrate how this is the case. Take for instance para. 94, where Noël CJ bundles a highly specific instance of the Board’s decision-making into the apparently vast category of a legislature’s “internal affairs”:

[94] The unanimous case law on point and this historical acquiescence lead to the conclusion that the privilege claimed here – i.e., the House’s exclusive right to oversee and decide matters pursuant to internal rules governing the use made of funds and resources provided to Members of the House for the purpose of allowing them to perform their parliamentary functions – comes within the established category relating to internal affairs.

Of course, a broad definition of “internal affairs” will surely catch the particular circumstances of this case – but it will undoubtedly catch a great many other matters as well. Do any mechanisms exist to allow courts to prevent the categories of accepted parliamentary privilege to bloating uncontrollably? The Federal Court of Appeal’s approach suggests that, at least for the time being, no such tools are in sight, at least not so long as a necessity test for each claimed instance of privilege is rejected.

Second, it is interesting that neither the Federal Court of Appeal nor the Supreme Court in Chagnon actually considers the flip side of the argument that maintaining parliamentary privilege preserves the dignity of the legislature – namely, the possibility that ensuring oversight by an independent and unelected judiciary of some processes within a body that is broadly, but not uniformly, legislative might equally work to preserve that same dignity. Separation of powers would surely preclude making this type of argument where the function performed by an elected official is strictly legislative. But the broader a defined category of privilege, the more matters are subtracted from the courts’ jurisdiction, be they legislative or more administrative in nature. What is curious is that neither the Court of Appeal’s reasons nor most of the other jurisprudence on parliamentary privilege actually address this tension, even by simply raising the question of what it means to uphold legislative dignity in a given case and whether court intervention is necessarily always its antithesis. While the question is ultimately a normative one, it is unfortunate that courts do not even address the existence of the issue, even if they ultimately refrain from opining on it directly.

Absent a much more fulsome discussion of these matters, however, and especially given the current political context, the upshot of the Board of Internal Economy decision may ultimately be to underscore the limits of judicial authority and the importance of maintaining other mechanisms for safeguarding the accountability of our elected officials. The case serves as a keen reminder that in some (admittedly limited) circumstances, the courts will not interfere with decisions made by, or in respect of, our representative bodies – such that elected representatives and citizens alike must turn to other, more immediately democratic tools to ensure the fairness and transparency of such decisions.