It's time to rethink Parliamentary Privilege

This post is best described as speculative. I haven’t spent more than a couple of hours even thinking about it. I’m genuinely curious to hear from folks about what I’m missing or the unintended consequences I haven’t thought out!

Doug Ford is going to court to avoid a summons to the inquiry on the Emergencies Act, claiming that this would be in breach of his parliamentary privilege. What is parliamentary privilege, and can Ford use it as a shield against having to testify? (Spoiler: the answer to the 2nd question is yes).

Parliamentary privilege is a set of rights and immunities held by legislative assemblies and their members. The collective aspects ensure that legislative assemblies are fully self-governing institutions that control their own membership and regulate their own affairs/procedures, etc. The individual aspects ensure a right to free expression, freedom from arrest in civil actions, exemption from jury duty and from being subpoenaed to appear before court (here’s where Ford’s protection does indeed appear to be valid), and freedom from obstruction, interference, and intimidation.

The courts have helped to define and identify the limits of privilege. While the Constitution Act, 1867 recognizes and effectively entrenches parliamentary privilege at the federal level, the Supreme Court has also recognized that privilege at the provincial level is similarly entrenched (circuitously, as an “unwritten principle” of the Constitution and by virtue of its preamble). Nonetheless, privilege can be altered via by statute by either level, and even abolished by constitutional amendment if we wished (indeed, federal privileges are subject to amendment by statute as expressly noted by the constitutional provision establishing them - with an added wrinkle discussed below).

It is the individual aspects I want to focus on, because I think the reaction a lot of sensible people will have to Ford’s invocation of privilege to avoid appearing before the Emergencies Act inquiry will rightly be that it simply reeks. Given provincial responsibility over most policing, Ford was a pivotal player in the events of the convoy blockades and occupation. It is flatly unacceptable that he would use privilege to avoid having to appear to answer for why he basically vanished during a public emergency.

But we shouldn’t just throw up out hands.

The rest of this post will be seen by some as sacrilege, because a lot of parliamentary nerds view privilege as sacrosanct, but I think it’s time to seriously rethink whether privilege should be maintained in its current form.

Why? Because privilege emerged when legislators were under serious threat of retaliation and punishment by kings. Special rights of members of the Commons were crucial to ensuring a role for Parliament. Considering that context, it’s no mistake the specific individual privileges are what they are, but they have remained largely the same for centuries, well past any realistic threat from the Crown or other authorities and despite important developments in constitutional and other law, including the growth of universal rights.

Here we have a direct connection with my previous post on the importance of history and practice to the Canadian constitution. When the UK Parliament passed the British North America Act, 1867, and included the provision affirming the privileges of members of the Canadian House and Senate, it did so with the proviso that they not exceed those enjoyed by members of the UK House (of course, we could now remove this proviso via constitutional amendment as well).

Despite the ease with which privileges might be changed or abolished, it’s not surprising to find that such changes have been minimal. Why would legislators remove or limit the special immunities and rights they enjoy?

I don’t have a great instrumental response to this, other than to explain that, with respect to certain privileges, it’s not clear they’re needed or make much sense anymore.

Take the freedom of speech guarantee. The Charter of Rights already guarantees that everyone enjoys freedom of expression. What parliamentary privilege confers is an absolute right that in practice amounts to protecting members against defamation lawsuits. And it’s not especially clear to me why we think the legislative role necessitates members be permitted to engage in libel. One somewhat ironic justification is that this protection is said to ensure members can engage in “truthful and complete disclosure without fear of reprisal” - but given truth is a defense to defamation it would seem a lack of immunity might do just as good a job ensuring the truth than having the immunity in place does.

Now, we certainly wouldn’t want our elected representatives exposed to endless nuisance suits. But we shouldn’t want anyone to be subject to claims that ‘chill’ valid expressive conduct. This speaks only to a need to ensure defamation law, specifically through the use of enhanced anti-SLAPP legislation, prevents frivolous claims (and that unscrupulous claimants suffer monetary costs for bringing them). A properly conceived defamation law that also incorporates issues of fair comment and the public interest (as I believe existing jurisprudence takes into account) would mitigate if not outright prevent the use of lawsuits as mechanisms to chill legislators’ speech. Beyond that, what is the justification for allowing blatant defamation from the floor of the House (or at one of its committees)?

Immunity from being summoned to court or an inquiry is another privilege we should rethink. This privilege is said to be justified on the basis of “the principle that attendance of a member in the House of Commons takes precedence over other obligations, and that the House has the paramount right and prior claim to the attendance and service of its members.”

It certainly makes sense that elected officials be exempted from jury duty. But it’s worth noting that the exemption against summons’ to testify in court is often waived in the context of criminal proceedings - and rightly so! A federal or provincial inquiry is no less important (indeed, often more so) than a legislator’s typical sitting day. It is no small irony that the day Ford announced he was heading to court to fight the summons he didn’t even bother appear in the Ontario assembly to face questions about it from the opposition. In short, politicians skip days in the legislature for all manner of reasons all the time, and often enough for political convenience.

To account for rare occasions where a member’s attendance is crucial (crucial votes, minority situations involving confidence, etc.) a modified rule that puts an onus on courts or inquiries be flexible in scheduling the appearance of a sitting member seems for more reasonable than a blanket exemption.

At a minimum, it’s time to rethink certain aspects of parliamentary privilege. Constitutions should evolve to meet changing contemporary circumstances, and it’s a problem when certain aspects, like parliamentary privilege, can be used to violate other democratic norms, as Doug Ford is doing this week.