Thank you for this thoughtful essay. I value your expression and knowledge. I have no background in these matters, other than an interest and desire for fairness. It would appear to me that Premier Ford and his supporters value his political success over his responsibility to the people of Ontario and Canada, as we were all involved at some level.He must testify.
Do you have thoughts on the efficacy of parliamentary privilege to preclude a summons from another legislative body? Namely, what if the federal House of Commons summonsed Ford and Jones to provide the same testimony sought by the statutory Rouleau Commission, and sent an officer of the House of Commons to enforce same?
I am not sure if there is any caselaw on the conflicting curial jurisdictions of legislative chambers in the Canadian federation. However, the (provincial) parliamentary privilege relied upon by Ford and Jones (as a de facto executive privilege) is a product of the curial jurisdiction of the Ontario Legislative Assembly. But the hypothetical summons from the federal Parliament would derive from the curial jurisdiction of the House of Commons.
Thus, could the curial jurisdiction of the federal House of Commons run supreme (in like manner to the doctrine of federal paramountcy in relation to statutory cohesion)? Clearly, the Courts could simply determine that the Ontario Legislative Assembly’s privilege is impenetrable—i.e., its members do not need to answer to any summons, including one issued by another legislative body. However, one could seemingly argue that Ford and Jones would have no recourse to the superior courts, as the courts would arguably lack curial jurisdiction in relation to the review of summonses issued by a legislative assembly per Article 9 of the Bill of Rights, 1689.
Thank you for creating this substack. I always appreciate your takes. How does parliamentary privilege gel with the fact that the cabinet is also the executive? Recognizing that jurisdictions have executive privilege as well, given the fused nature of our parliamentary system, at what point does being a member of the executive (or leader of it) counter parliamentary privilege?
Thanks for the thoughts! I think there may be a few unintended consequences, but also an alternative potential solution:
1. Fed/Prov Issues: There is already an interesting dynamic at play in this example, given that it's a federal commission seeking to call a provincial Minister. Unlike the Tainted Blood Inquiry, or the Mass Shooting Commission, there are not mirrored OICs from the province(s) that permit investigation into any provincial angles. This is a bit tricky in the existing commission because, as you point out, one of the key issues here is policing; and that's a provincial area of jursidiction.
The other part is that Inquiries are not necessarily neutral. I'm thinking of the "Inquiry into Anti-Alberta Energy Campaigns". Should that provincial inquiry have the ability to require the appearance of a federal Minister (e.g., Finance Minister, or FINTRAC officials, etc)? If so, how flexible does the Inquiry need to be, especially if it has a set deadline in its Terms of Reference set in the OIC?
2. Courts deciding on which legislative functions matter: In the description your quote of the privilege, I focus more on the second half: "the House has the paramount right and prior claim to the attendance and service of its members." It's not just about a member being present, but it's also the service the member provides -- be it committee work or otherwise. I think there may also be an argument around their services to constituents as well.
Fundamentally, I am not sure the courts are well placed to decide whether attendence at X or Y legislative function ought to take precedence (or not) over the member's attendence at court or at an Inquiry. Would the court be expected to weigh political considerations as well (e.g., imagine a scenario where there is a one-seat majority and so it is impoerative that every member is present, even at short notice)? Or the importance of a particular function of the member (e.g., they're the Speaker, or the Chair of Committee of the Whole, etc)? Effectively, I think attempting to give such decisions to the courts takes the onus off legislatures, collectively, to best control their members.
And that's where I think the solution lies: In the leg.
Bosc and Gagnon note on Parl Priv: "The privileges of the House can be examined from two vantage points: the rights and immunities of its individual Members and the rights of the House in its collective capacity. Within this framework, the individual Member’s rights are subordinate to those of the House as a whole in order to protect the collectivity against any abuses by individual Members. For instance, a Member’s individual privileges may be considered suspended if the House orders that Member to attend in his or her place or at the Bar of the House."
My read of this is that the legislature could, in fact, waive privilege for an individual member being summoned, if its sees it as an abuse of the privilege by an individual member. Now there may, of course, be political reasons why this rarely happens. But it's interesting to think what would happen in a scenario where this were a minority government, and the respective legislature decided to waive privilege in order to put one of its members under oath for the purposes of an Inquiry or a trial.
Putting this in the hands of the courts basically removes accountability from elected officials, and gets them off the hook. Not only should the Premier, in this case, need to answer as to why he feels that should not attend as he is required to attend to his legislative functions, but Queen's Park should also have to answer as to why it believes that its member ought not be compelled to attend. Silence from the leg is complicity in the invocation of Parl Priv by the Premier.
Thanks for the note! I don't think my solution would be that we should just let courts decide which legislative functions matter, and I agree in an ideal world the legislature would be more active in holding individuals to account for abuse of their privileges. I would just say that none of that means that the blanket exemption shouldn't or couldn't be modified in some fashion.
Entirely fair! I think I'm trying to sort through the specifics of what a modification would look like that wouldn't already be covered by the existing power of the respective legislature to override an member's individual (mis)use of privilege, or would be superior to the existing approach, where convention dictates that members attend criminal proceedings through individually waiving privilege in specific circumstances, rather than modifying the overall privilege itself.
If it's specific to Inquiries, we could run into the Fed/Prov issue I noted above, as well as the various political circumstances you note (e.g., the one-vote majority case -- taking away a legislator for a few days could have dramatic consequences for the functioning of the legislature; the legislator in question has been called to appear before a Parliamentary committee and could be in contempt of Parliament if they do not attend; etc).
I suppose it's also a matter of theory vs practice. If the practical issue is that we are trying to negate the situation that has arisen, where someone appears to be misusing the privilege AND the legislature is not holding them accountable for that misuse, then that same legislature is unlikely to modify the privilege anyway.
If we're more interested on the theoretical side, I'm not sure a modification makes sense, because in the theoretical world, the legislature would be properly holding its members to account for misusing the privilege, and members act honourably and usually attend such obligations in order to not impede the administration of justice.
Overall, I think my question for you is: In your view, which body would get to decide if a member has to attend or not as a witness? When you note the political circumstances (e.g., that critical vote) that would require Inquiries/courts to be flexible as to scheduling, who would you see as the ultimate decision-maker as to if that flexibility is enough when balanced against the legislator's duties (i.e., do the courts or the legislature decide)?
Thank you for this thoughtful essay. I value your expression and knowledge. I have no background in these matters, other than an interest and desire for fairness. It would appear to me that Premier Ford and his supporters value his political success over his responsibility to the people of Ontario and Canada, as we were all involved at some level.He must testify.
Do you have thoughts on the efficacy of parliamentary privilege to preclude a summons from another legislative body? Namely, what if the federal House of Commons summonsed Ford and Jones to provide the same testimony sought by the statutory Rouleau Commission, and sent an officer of the House of Commons to enforce same?
I am not sure if there is any caselaw on the conflicting curial jurisdictions of legislative chambers in the Canadian federation. However, the (provincial) parliamentary privilege relied upon by Ford and Jones (as a de facto executive privilege) is a product of the curial jurisdiction of the Ontario Legislative Assembly. But the hypothetical summons from the federal Parliament would derive from the curial jurisdiction of the House of Commons.
Thus, could the curial jurisdiction of the federal House of Commons run supreme (in like manner to the doctrine of federal paramountcy in relation to statutory cohesion)? Clearly, the Courts could simply determine that the Ontario Legislative Assembly’s privilege is impenetrable—i.e., its members do not need to answer to any summons, including one issued by another legislative body. However, one could seemingly argue that Ford and Jones would have no recourse to the superior courts, as the courts would arguably lack curial jurisdiction in relation to the review of summonses issued by a legislative assembly per Article 9 of the Bill of Rights, 1689.
Thank you for creating this substack. I always appreciate your takes. How does parliamentary privilege gel with the fact that the cabinet is also the executive? Recognizing that jurisdictions have executive privilege as well, given the fused nature of our parliamentary system, at what point does being a member of the executive (or leader of it) counter parliamentary privilege?
Thanks for the thoughts! I think there may be a few unintended consequences, but also an alternative potential solution:
1. Fed/Prov Issues: There is already an interesting dynamic at play in this example, given that it's a federal commission seeking to call a provincial Minister. Unlike the Tainted Blood Inquiry, or the Mass Shooting Commission, there are not mirrored OICs from the province(s) that permit investigation into any provincial angles. This is a bit tricky in the existing commission because, as you point out, one of the key issues here is policing; and that's a provincial area of jursidiction.
The other part is that Inquiries are not necessarily neutral. I'm thinking of the "Inquiry into Anti-Alberta Energy Campaigns". Should that provincial inquiry have the ability to require the appearance of a federal Minister (e.g., Finance Minister, or FINTRAC officials, etc)? If so, how flexible does the Inquiry need to be, especially if it has a set deadline in its Terms of Reference set in the OIC?
2. Courts deciding on which legislative functions matter: In the description your quote of the privilege, I focus more on the second half: "the House has the paramount right and prior claim to the attendance and service of its members." It's not just about a member being present, but it's also the service the member provides -- be it committee work or otherwise. I think there may also be an argument around their services to constituents as well.
Fundamentally, I am not sure the courts are well placed to decide whether attendence at X or Y legislative function ought to take precedence (or not) over the member's attendence at court or at an Inquiry. Would the court be expected to weigh political considerations as well (e.g., imagine a scenario where there is a one-seat majority and so it is impoerative that every member is present, even at short notice)? Or the importance of a particular function of the member (e.g., they're the Speaker, or the Chair of Committee of the Whole, etc)? Effectively, I think attempting to give such decisions to the courts takes the onus off legislatures, collectively, to best control their members.
And that's where I think the solution lies: In the leg.
Bosc and Gagnon note on Parl Priv: "The privileges of the House can be examined from two vantage points: the rights and immunities of its individual Members and the rights of the House in its collective capacity. Within this framework, the individual Member’s rights are subordinate to those of the House as a whole in order to protect the collectivity against any abuses by individual Members. For instance, a Member’s individual privileges may be considered suspended if the House orders that Member to attend in his or her place or at the Bar of the House."
My read of this is that the legislature could, in fact, waive privilege for an individual member being summoned, if its sees it as an abuse of the privilege by an individual member. Now there may, of course, be political reasons why this rarely happens. But it's interesting to think what would happen in a scenario where this were a minority government, and the respective legislature decided to waive privilege in order to put one of its members under oath for the purposes of an Inquiry or a trial.
Putting this in the hands of the courts basically removes accountability from elected officials, and gets them off the hook. Not only should the Premier, in this case, need to answer as to why he feels that should not attend as he is required to attend to his legislative functions, but Queen's Park should also have to answer as to why it believes that its member ought not be compelled to attend. Silence from the leg is complicity in the invocation of Parl Priv by the Premier.
Thanks for the note! I don't think my solution would be that we should just let courts decide which legislative functions matter, and I agree in an ideal world the legislature would be more active in holding individuals to account for abuse of their privileges. I would just say that none of that means that the blanket exemption shouldn't or couldn't be modified in some fashion.
Entirely fair! I think I'm trying to sort through the specifics of what a modification would look like that wouldn't already be covered by the existing power of the respective legislature to override an member's individual (mis)use of privilege, or would be superior to the existing approach, where convention dictates that members attend criminal proceedings through individually waiving privilege in specific circumstances, rather than modifying the overall privilege itself.
If it's specific to Inquiries, we could run into the Fed/Prov issue I noted above, as well as the various political circumstances you note (e.g., the one-vote majority case -- taking away a legislator for a few days could have dramatic consequences for the functioning of the legislature; the legislator in question has been called to appear before a Parliamentary committee and could be in contempt of Parliament if they do not attend; etc).
I suppose it's also a matter of theory vs practice. If the practical issue is that we are trying to negate the situation that has arisen, where someone appears to be misusing the privilege AND the legislature is not holding them accountable for that misuse, then that same legislature is unlikely to modify the privilege anyway.
If we're more interested on the theoretical side, I'm not sure a modification makes sense, because in the theoretical world, the legislature would be properly holding its members to account for misusing the privilege, and members act honourably and usually attend such obligations in order to not impede the administration of justice.
Overall, I think my question for you is: In your view, which body would get to decide if a member has to attend or not as a witness? When you note the political circumstances (e.g., that critical vote) that would require Inquiries/courts to be flexible as to scheduling, who would you see as the ultimate decision-maker as to if that flexibility is enough when balanced against the legislator's duties (i.e., do the courts or the legislature decide)?