1.3 The Appellants have not established the existence of a privilege over the management of staff generally.

23. In order to establish the existence of a parliamentary privilege over the appointment and management of staff generally, the Appellants must establish the following:

a. Parliamentary privilege over the appointment and management of staff was held, enjoyed and exercized by the Commons House of Parliament in the United Kingdom in 1867; and

b. In today’s context, such a privilege is necessary to the proper functioning, dignity and integrity of the House of Commons, in other words, the House of Commons cannot function as a legislative body without immunity with respect to the management of its staff.

24. For the reasons set out below, it is submitted that the Appellants have failed to provide evidence and justification for either of these elements.

1.3.1 The Appellants have not established that a privilege over the appointment and management of staff was held, enjoyed and exercized by the British House of Commons in 1867.

i) The historical requirement
 
25. In order for a parliamentary privilege to exist in Canada, such privilege must have been held, enjoyed and exercised by the Commons House of Parliament in the United Kingdom in 1867. This limit flows from the Constitution Act, 1867 and from section 4 of the Parliament of Canada Act, R.S.C. 1985, c. P-1, which provides that: 

4. The Senate and the House of Commons, respectively, and the members thereof hold, enjoy and exercise

(a) such and the like privileges, immunities and powers as, at the time of the passing of the Constitution Act, 1867, were held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom and by the members thereof, in so far as consistent with that Act; and
(b) such privileges, immunities and powers as are defined by Act of the Parliament of Canada, not exceeding those, at the time of the passing of the Act, held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom and by the members thereof. (emphasis added).

Parliament of Canada Act, R.S.C. 1985, c. P-1 [Appellants’ Authorities, Tab 48].

Constitution Act, 1867, section 18 (U.K., 30 & 31 Vict., c. 3, as repealed and re-enacted by the Parliament of Canada Act, 1875, (U.K.), 38-39 Vict., c. 38, reprinted in R.S.C., App. II, No. 5 ) [Appellants’ Authorities, Tab 45].

26. The first condition for the existence of a parliamentary privilege in Canada is therefore that the privilege was held, enjoyed and exercised by the British House of Commons in 1867.

Ainsworth Lumber v. Canada (A.G.) et al. (2003), 226 D.L.R. (4th) 93 (BCCA) at paras 42-44. Leave to appeal denied, SCC File no. 29842 [Respondent’s Authorities, Tab 6].

Samson Indian Nation and Band v. Canada, [2003] F.C.J. No 1238 at para 27 (F.C.T.D.) [Respondent’s Authorities, Tab 7].

Telezone Inc. v. Canada (Attorney General), [2004] O.J. No. 5, at para 18 [Appellants’ Authorities, Tab 22].

27. At paragraphs 32 to 42 of their factum, the Appellants argue that such a privilege existed in the United Kingdom in 1867, based on the following authorities:

a. Article 9 of the Bill of Rights, 1689;

b. The 1935 Decision of the Court of King’s Bench in R. v. Graham-Campbell, ex parte Herbert, [1935] 1 K.B. 594;

c. The 1986 Federal Court of Appeal decision in House of Commons v. C.L.R.B., [1986] 2 F.C. 372;

d. Standing Order 151 of the House of Commons (Canada).

28. For the reasons set out below, it is submitted that  these authorities do not establish  the existence of a parliamentary privilege over the management of staff held by the United Kingdom House of Commons in 1867.

ii) Article 9 of the Bill of Rights, 1689

29. Article 9 of the Bill of Rights, 1689 provides that “the freedom of Speech and Debates or Proceedings in Parliament ought not to be impeached or questionned in any Court or Place out of Parliament.”

Bill of Rights of 1689 (Eng.), 1 Will & Mar. sess. 2, c. 2, art. 9 [Appellants’ Authorities, Vol IV, Tab 56].

30. The Appellants provide no authority in support of the proposition that “Proceedings in Parliament” include the management of staff. Indeed, “Proceedings in Parliament” are generally understood as describing events necessarily incidental to the enactment of laws:

The primary meaning, as a technical parliamentary term, of ‘proceedings’ (which it had at least as early as the seventeenth century) is some formal action, usually a decision, taken by the House in its collective capacity. This is naturally extended to the forms of business in which the House takes action, and the whole process, the principal part of which is debate, by which it reaches a decision.

C.J. Boulton, CB, ed., Eskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 21st ed. (London: Butterworth, 1989) (Erskine May’s) at 92 [Respondent’s Authorities, Tab 19]. 

Since two of Parliament’s constituent elements, the House of Commons and the Senate, were established for the enactment of laws, those events necessarily incidental to the enactment of laws are part of the proceedings in Parliament.

J.P.J. Maingot, Q.C. Parliamentary Privilege in Canada, 2d ed. (House of Commons and McGill-Queen’s University Press, 1997) at 80 [Respondent’s Authorities, Tab 20].

31. Contrary to the Appellants’ assertion at paragraph 39 of their factum, the article by  Geoffrey Lock entitled “Labour Law, Parliamentary Staff and Parliamentary Privilege” does not acknowledge that article 9 of the Bill of Rights, 1689 includes the management of staff. The statement cited by the Appellants was made by the Speaker’s counsel; not by the author, whose view is as follows:

Staff employment rights are a field very remote from the original purpose of this aspect of privilege -the preservation of M.P.’s freedom of speech, and the exclusion of staff members from the category of ‘internal affairs of the House’ would not impair the rights which the House actually needs to function. (emphasis added)

G.F. Lock, “Labour Law, Parliamentary Staff and Parliamentary Privilege” (1983) 12 Industrial Law Journal 28 at 37 [Appellants’ Authorities, Tab 41].

iii) R. v Graham-Campbell, ex parte Herbert, [1935] 1 K.B. 594

32. While this decision has been criticized for broadening the interpretation of “proceedings in Parliament” to include the sale of liquor by a committee without a licence, it did not in any way recognize a parliamentary privilege over the management of staff. In any event, it is not clear that this decision was in accordance with the earlier authorities and it cannot, on its own, establish the existence of such a privilege in the United Kingdom in 1867.

Williamson v. Norris, [1899] 1 Q.B. 7 [Respondent’s Authorities, Tab 8].
Bear v. State of Australia, (1981) 48 S.A.I.R. 604 at 621-623 [Respondent’s Authorities, Tab 9].

U.K., Joint Committee on Parliamentary Privilege, First Report (30 March 1999) at para 250 [Appellants’ Authorities, Tab 42].

iv) House of Commons v C.L.R.B., [1986] 2 F.C. 372

33. The decision of the Federal Court of Appeal in House of Commons v. C.L.R.B., [1986] 2 F.C. 372 does not stand for the proposition that parliamentary privilege applies to the management of staff. The sole issue in that case was whether the House of Commons was a federal work, undertaking or business in order to attract the applicability of the Canada Labour Code. 

House of Commons v. C.L.R.B., [1986] 2 F.C. 372 [Appellants’ Authorities, Tab 14].

34. The majority did not confirm the existence of such a privilege but merely indicated that Parliamentarians, rightly or wrongly believe the management of staff to be one of their privilege. With respect to comments made by the minority, these were made in the context of a finding  that House of Commons employees are employees of the Crown. This finding was not followed by the majority.

House of Commons v. C.L.R.B., supra at 384, 391 [Appellants’ Authorities, Tab 14]. 

35. In any event, these comments were made in obiter and cannot be sufficient to establish the existence of a privilege held, enjoyed and exercized in the United Kingdom in 1867.

v) Standing Order 151
 
36. Standing Order 151 confirms that the Clerk is responsible for the direction and control of officers and clerks employed in the offices. It does not in any way establish the existence of a parliamentary privilege over the management of staff in the United Kingdom, or indeed in Canada,  in 1867.

37. In any event, the House of Commons cannot unilaterally create for itself a new privilege by issuing a Standing Order.

Erskine May’s, supra at 83 [Respondent’s Authorities, Tab 19].

New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319 (“New Brunswick Broadcasting”), supra at 383 [Appellants’ Authorities, Tab 2].

vi) Conclusion

38. If the management of staff were a privilege that was held, enjoyed and exercized by the British House of Commons since 1867, then it should be possible to find clear confirmation of this privilege in the authorities and doctrine. The Appellant’s inability to provide a clear confirmation of this privilege stands for the proposition that it did not exist in the United Kingdom in 1867.

It is remarkable that no mention is made of this alleged power of the House of Commons in any book of authority, or by any text writer. It is no where enumerated among the privileges or powers of the House. (at p. 1189)

Stockdale v. Hansard, supra at 1189 [Appellants’ Authorities, Tab 20].