COURT OF APPEAL FOR ONTARIO

CITATION: Duffy v. Canada (Senate), 2020
    ONCA 536

DATE: 20200828

DOCKET: C66407

Strathy C.J.O., MacPherson and
    Jamal JJ.A.

BETWEEN

Senator Michael Dennis Duffy

Plaintiff (Appellant)

and

The Senate of Canada and the
    Attorney General of Canada

Defendants (Respondents)

Lawrence Greenspon and Tina H. Hill,
    for the appellant

Maxime Faille, Guy Régimbald and John J.
    Wilson, for the respondent, the Senate of Canada

Alexander Gay and Sanam Goudarzi, for
    the respondent, the Attorney General of Canada

Heard: January 16, 2020

On appeal from the order of Justice Sally
    A. Gomery of the Superior Court of Justice, dated December 14, 2018, with
    reasons reported at 2018 ONSC 7523.

Jamal J.A.:

A.

Introduction

[1]

Parliamentary privilege has been part of
    Canadian constitutional law since Confederation. The privilege, which is
    enjoyed by the Senate, the House of Commons, and the provincial legislative
    assemblies, helps maintain the constitutional separation of powers between the legislative,
    executive, and judicial branches of government and thus promotes the
    constitutional equilibrium of Canadas democracy:
Canada (House of
    Commons) v. Vaid
, 2005 SCC 30, [2005] S.C.R. 667, at para. 4.
    Parliamentary privilege does this by shielding certain areas of legislative
    activity from judicial or executive review, thereby giving the legislative
    branch of government the autonomy it requires to perform its constitutional
    functions:
Chagnon v. Syndicat de la fonction publique et parapublique du
    Québec
, 2018 SCC 39,
    [2018] 2 S.C.R. 687, at para. 1. When parliamentary privilege applies, it deprives
    the courts of jurisdiction over the privileged matter and confers an immunity from
    civil claims:
Vaid
, at para. 4;
Chagnon
, at para. 19.

[2]

The issue in this appeal is whether parliamentary
    privilege deprives the courts of jurisdiction to adjudicate a civil claim for
    damages brought by the appellant, Senator Michael Duffy, against the respondent,
    the Senate of Canada.

[3]

Senator Duffys claim alleges
    that the Senate
acted unlawfully in how it
    investigated, prosecuted, and suspended him from the Senate for allegedly claiming
    inappropriate expenses as a senator and by then accepting funds from the Prime
    Ministers Chief of Staff, Mr. Nigel Wright, to reimburse the Senate for those
    expenses. Senator Duffy was later charged criminally and tried for fraud,
    breach of trust, and accepting a bribe, but was acquitted by the Ontario Court
    of Justice. Senator Duffy alleges that representatives from the Prime
    Ministers Office (PMO) and individual senators interfered with the Senates
    investigation into his expenses for improper and purely political purposes.
    This, he says, led to the Senates decisions to suspend him, to deny him income
    and other benefits he says he was entitled to as a senator, and to refer matters
    to the Royal Canadian Mounted Police (RCMP) for criminal investigation. Senator
    Duffy also alleges that the Attorney General of Canada is liable for wrongs
    committed by the RCMP in negligently investigating and wrongly laying criminal
    charges against him.

[4]

The motion judge granted the Senates motion to
    dismiss the action as against it for lack of jurisdiction based on parliamentary
    privilege. She held that four established categories of parliamentary privilege
    apply: the Senates parliamentary privileges to discipline its members and
    administer its internal affairs, and its privileges over parliamentary
    proceedings and freedom of speech. Senator Duffy now appeals.

[5]

For the reasons that
follow, I would dismiss the appeal. Like the motion judge, I
    conclude that Senator Duffys claims against the Senate trench on matters that
    fall within the scope of the Senates established parliamentary privileges. The
    courts therefore lack jurisdiction to adjudicate these claims. These matters
    fall within the exclusive competence of the Senate to adjudge according to its own
    rules. This conclusion respects the separation of powers between the courts and
    the legislative branch of government and provides the Senate with the autonomy
    it needs to discharge its constitutional role in our democracy.

B.

senator duffys allegations

[6]

By amended statement of claim dated September 8,
    2017, Senator Duffy sued the Senate and the Attorney General of Canada for over
    $7 million.

[7]

This appeal, like the motion in the court below,
    concerns the Senates motion to dismiss or strike out the claims as against it
    for want of jurisdiction. In the proceedings below, the Attorney General of
    Canada did not move to dismiss
or strike the claims as
    against it.

[8]

Senator Duffys amended statement of claim makes
    the following allegations against the Senate, which for the purposes of the
    motion before the motion judge and the appeal before this court are assumed to
    be true:

·

In January 2009, Michael Duffy was appointed as
    a senator for Prince Edward Island (PEI), where he was born, has deep roots,
    and owned a property.
At the time, the Prime Ministers
    Chief of Staff
and Senator Tkachuk, then Vice-Chair of the Senate
    Standing Committee on Internal Economy, Budgets and Administration (the
    CIBA), assured Senator Duffy that it was appropriate for him to claim
per
    diem
expenses while living at his home in Ottawa, where he had lived
    throughout his almost 40-year career in journalism. This was because his PEI
    residence was his residence in the province for which he was appointed, while
    his home in Ottawa was his residence while attending to his duties at the Senate.
    Senator Duffy therefore claimed and received
per diem
expenses.

·

In February 2013, shortly after the media
began scrutinizing
Senate expense issues, the CIBA engaged
    Deloitte, an audit, consulting, and financial advisory firm, to independently
    examine Senator Duffys expenses.

·

In late February 2013, the PMO learned that the
    Senate was looking for Senator Duffy to repay about $90,000 in expenses. Because
    of threats and pressure from the PMO, Senator Duffy agreed to repay the Senate,
    even though he insisted that his expenses were appropriate. As part of a political
    damage control strategy, the Prime Ministers Chief of Staff agreed to cover
    this amount personally. In late March 2013, Mr. Wright gave Senator Duffys
    lawyer a cheque for $90,000.

·

In May 2013, Deloitte reported that the Senates
    rules for expenses were not clear. Besides one clerical error, Deloitte did not
    find any of Senator Duffys expenses were inappropriate. On receiving Deloittes
    report, the CIBA presented its own report (the Twenty-Second Report) to the
    Senate recommending that Senator Duffys expenses were proper. The Senate
    adopted the Twenty-Second Report.

·

In mid-May 2013, the media reported that Mr.
    Wright had written a personal cheque to cover Senator Duffys expenses. Mr.
    Wright then resigned as the Prime Ministers Chief of Staff.

·

In late May 2013, on orders from the PMO, the
    CIBA released a new, politically motivated report (the Twenty-Sixth Report), which
    now alleged that Senator Duffys expenses were improper. It also referred the
    legality of the $90,000 repayment to the RCMP for investigation.

·

In October 2013, the Leader of the Government in
    the Senate introduced a motion to suspend Senator Duffy for gross negligence
    in the management of his parliamentary resources. The motion also provided
    that, during his suspension, the Senate should deny Senator Duffy all benefits,
    including remuneration and reimbursement of expenses, payment of sessional and
    living allowances, pension accrual, and access to all other Senate resources.

·

On November 5, 2013, the Senate voted to suspend
    Senator Duffy from the Senate for gross negligence, without an independent and
    impartial hearing, without procedural fairness, and in breach of the principles
    of natural justice and the presumption of innocence. Senator Duffy was the only
    senator suspended, even though the Auditor General of Canada later reported
    that 30 senators (not including Senator Duffy) had claimed improper expenses, none
    of whom was accused of gross negligence, suspended, or denied any of the
    benefits denied to Senator Duffy during his suspension.

·

On July 17, 2014, the RCMP charged Senator Duffy
    with 31 offences relating to his Senate expenses and his receipt of the $90,000
    cheque from Mr. Wright.

·

On August 2, 2015, Parliament was dissolved,
    automatically ending Senator Duffys suspension from the Senate. Senator Duffy
    alleges that the Senate continued withholding his pay and expenses pending the
    outcome of his criminal trial.
[1]

·

On April 21, 2016, Vaillancourt J. of the
    Ontario Court of Justice acquitted Senator Duffy of all criminal charges:
R.
    v. Duffy
, 2016 ONCJ 220. He concluded that Senator Duffy committed no
    prohibited act, violated no Senate rules and did not in all the circumstances
    commit the
actus reus
of fraud: at para. 848. He also found that Mr.
    Wright had ordered senior members of the Senate around as if they were pawns
    on a chessboard, and that those same senior members of the Senate [were]
    meekly acquiescing to Mr. Wrights orders: at paras. 1030-1031. Vaillancourt
    J. stated that [t]he political, covert, relentless, unfolding of events is
    mindboggling and shocking, and that in his view the plotting could only be
    described as unacceptable: at paras. 1036, 1038.

·

In July 2016, the Senate announced that it would
    claw back $17,000 from Senator Duffys salary to recover funds it alleged he
    had inappropriately claimed as Senate expenses, even though Vaillancourt J. had
    found these expenses were proper.

·

In August 2016, contrary to the Senates own
    reimbursement policy, the CIBA rejected Senator Duffys request for partial
    reimbursement of legal expenses and disbursements incurred in successfully defending
    the criminal charges. Later, the Senate also denied Senator Duffys request for
    reimbursement of his salary, living allowances, and pension accruals withheld
    while he was suspended from the Senate.

[9]

Based on these allegations, Senator Duffy claims
    that the Senate is liable for malicious prosecution, misfeasance in public
    office, and unjust enrichment; for disqualifying him as a senator on grounds
    not provided under s. 31 of the
Constitution Act, 1867
; and for breach
    of his rights under the
Canadian

Charter of Rights and Freedoms
:
    s. 7 (the right to life, liberty, and security of the person and the right not
    to be deprived thereof except
in accordance with
the
    principles of fundamental justice), s. 11(d) (the right to be presumed innocent
    until proven guilty according to law in a fair and public hearing by an independent
    and impartial tribunal), and s. 12 (the right not to be subjected to any cruel
    and unusual treatment or punishment).

C.

the motion judges decision

[10]

The Senates motion sought an order dismissing
    or staying the action as against the Senate for want of jurisdiction (r.
    21.01(3)(a) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194); or
    alternatively, an order dismissing or striking the claim as against the Senate
    as scandalous, frivolous, vexatious, or otherwise an abuse of the process of
    the court (rr. 21.01(3)(d) and 25.11); or in the further alternative, a
    determination of a question of law raised by the pleading to dispose of all or
    part of the action or an order striking out the claims relating to the Senate
    on the ground that they disclose no reasonable cause of action (rr. 21.01(1)(a)
    and (b)).

[11]

The motion judge granted the Senates motion to
    dismiss Senator Duffys action as against it for want of jurisdiction: at
    paras. 14, 119 and 121.

[12]

For the purposes of the motion, the motion judge
    assumed that all the facts pleaded in the amended statement of claim are true,
    and then asked whether it is plain and obvious that the claims against the
    Senate could not succeed: at para. 18.

[13]

The motion judge stated that the courts task is
    to determine whether the activity impugned in the amended statement of claim falls
    within the scope of an established parliamentary privilege. If it does, the
    activity is immunized from judicial review and the courts inquiry is at an end:
    at paras. 31-32.

[14]

In the motion judges view, the reasons of the
    majority of the Supreme Court in
Chagnon
did not change the Courts
    earlier holding in
Vaid
that the necessity of established privileges of
    the federal Parliament need not be proved again each time they are invoked, even
    if a party alleges an infringement of their
Charter
rights: at paras. 33-38.

[15]

The motion judge held that the Senates impugned
    conduct falls within the scope of the Senates established parliamentary
    privileges (1) to discipline its members (at paras. 44-63), (2) to administer
    its internal affairs (at paras. 64-88), (3) over parliamentary proceedings (at
    paras. 89-92), and (4) over freedom of speech (at paras. 93-114).

[16]

She also ruled that the Senate did not waive its
    parliamentary privilege when the CIBA referred Senator Duffys acceptance of
    money from Mr. Wright to the RCMP and cooperated with the criminal
    investigation against him. She noted that the amended statement of claim did
    not explicitly allege waiver, and ruled that because parliamentary privilege is
    a constitutional principle, it cannot be waived implicitly. She held that
    Senator Duffys pleading alleged no conduct that clearly and unambiguously
    suggested that the Senate had waived its privilege: at paras. 109-114.

[17]

The motion judge therefore held that
    parliamentary privilege immunized all the actions underlying Senator Duffys
    claim against the Senate, and thus the court has no role in judging their
    lawfulness or fairness: at para. 119. She also held that because Senator Duffy
    could not assert any of his claims as against the Senate without relying on
    privileged speech, it was appropriate to refuse leave to amend the claim: at
    para. 120. She therefore dismissed Senator Duffys action as against the Senate:
    at paras. 14, 122.

D.

issues

[18]

Senator Duffy raises five main issues on appeal:

1.

The motion judge erred in ruling that the impugned actions of the
    Senate fall within the scope of established categories of parliamentary privilege;

2.

The motion judge erred in ruling that parliamentary privilege applies
    to the Senates allegedly unlawful conduct;

3.

The motion judge erred by failing to address the necessity of the
    categories of parliamentary privilege claimed;

4.

The motion judge erred by failing to reconcile the Senates
    parliamentary privilege with the
Charter
; and

5.

The motion judge erred in ruling that the Senate had not waived its
    parliamentary privilege.

[19]

In what follows, I will first consider the
    standard of review and summarize the general principles of parliamentary
    privilege that apply at the federal level to the Senate. I will then address the
    issues raised by Senator Duffy.

E.

DISCUSSION

The Standard of Review

[20]

The parties agree that the standard of appellate
    review is correctness. The central issue in the appeal is whether the Senates parliamentary
    privilege deprives the courts of jurisdiction to adjudicate Senator Duffys
    claims against the Senate. This raises questions of law
that must be decided correctly:
Chagnon
,

at para.
17;
Housen v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235, at
    paras. 8-9; and
Canada (Board of Internal Economy)
    v. Boulerice
, 2019 FCA 33,
    [2019] 3 F.C.R. 145, at para. 48, leave to appeal refused, [2019] S.C.C.A. No.
    103.

General Principles of Parliamentary Privilege

(a)

Definition

[21]

The late Professor Peter Hogg described
    parliamentary
privilege as follows
: The
    federal Houses of Parliament and the provincial legislative assemblies possess
    a set of powers and privileges that are necessary to their capacity to
    function as legislative bodies. These powers and rights are known collectively
    as parliamentary privilege: Peter W. Hogg,
Constitutional Law of Canada
, loose-leaf (Rel-No. 1 2014), 5th ed. (Toronto:
    Carswell, 2007), vol. 1, at
§1.7,
p. 1-13, citing
New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House
    of Assembly)
, [1993] 1 S.C.R. 319, at p. 381,
per
McLachlin J. (as she then was) for the majority, and Warren J. Newman,
    Parliamentary Privilege, the Canadian Constitution and the Courts (2008) 39
    Ottawa L. Rev. 573.

[22]

Two of the leading Canadian cases on
    parliamentary privilege are
Vaid
and
Chagnon
. In
Vaid
,
    the Supreme Court held that parliamentary privilege did not prevent the
    Canadian Human Rights Tribunal from entertaining a workplace discrimination and
    harassment complaint brought against the Speaker of the House of Commons by his
    former chauffeur. In
Chagnon
, a majority of the Supreme Court held
    that parliamentary privilege did not prevent a labour arbitrator from
    adjudicating a unions grievance of the decision of the President of the
    National Assembly of Qu
é
bec to
    dismiss three of the Assemblys security guards.

[23]

In
Vaid
, Binnie J. defined parliamentary
    privilege as the sum of the privileges, immunities and powers enjoyed by the
    Senate, the House of Commons and provincial legislative assemblies, and by each
    member individually, without which they could not discharge their functions:
Vaid
,
    at para. 29(2) (citations omitted); see also
Chagnon
, at para. 19.

[24]

Parliamentary privilege provides a legal
    exemption from some duty, burden, attendance or liability to which others are
    subject:
Chagnon
, at para. 19, citing J.P. Joseph
    Maingot,
Parliamentary Immunity in Canada
, 2nd ed. (Toronto:
    LexisNexis Canada, 2016), at p. 13; see also
New Brunswick Broadcasting
,
    at p. 378.

(b)

Sources

[25]

Historically,
    parliamentary privilege developed
in England in the
    seventeenth century through the struggle of the House of Commons for
    independence from the other branches of government, including the Crown and
    the judiciary, which had shown no hesitation to intrude into the workings of
    Parliament, such as by arresting and prosecuting members of Parliament for allegedly
    seditious words spoken in debate in the House:
Chagnon
, at para. 22;
New
    Brunswick Broadcasting
, at pp. 344-345.

[26]

Parliamentary privilege was gradually accepted
    as forming part of the common law of England:
New Brunswick Broadcasting
,
    at pp. 344-345; Hogg, at
§
1.7, p.
    1-14. It was also recognized in the
Bill of Rights
(U.K.), 1689, 1
    Will. & Mar. Sess. 2, c. 2, which provides that the freedom of speech and
    debates or proceedings in Parliament ought not to be impeached or questioned in
    any court or place out of Parliament:
Vaid
, at para. 21;
Chagnon
,
    at para. 22; and
New Brunswick Broadcasting
, at p. 345.

[27]

Parliamentary privilege became part of Canadian law
    through the common law as being an inherent and necessary component of the
    legislative function of federal and provincial legislatures (so-called
    inherent privileges) and was constitutionalized through the preamble of the
Constitution
    Act, 1867
, which affirmed that Canada is to have a Constitution similar
    in Principle to that of the United Kingdom: see
Vaid
, at paras. 21,
    29(3);
Chagnon
, at paras. 18, 23; and
New Brunswick Broadcasting
,
    at p. 377.

[28]

There are, however, some significant differences
    between parliamentary privilege at the federal and provincial levels, each of
    which has a different constitutional basis:
Vaid
, at para. 29. At the
    federal level, s. 18 of the
Constitution Act, 1867
gives Parliament
    the power to enact laws defining the privileges of the Senate and the House of
    Commons:

18.
The privileges,
    immunities, and powers to be held, enjoyed, and exercised by the Senate and by
    the House of Commons, and by the members thereof respectively, shall be such as
are
from time to time defined by Act of the
    Parliament of Canada, but so
that
any Act of
    the Parliament of Canada defining such privileges, immunities, and powers
shall not confer any privileges
, immunities, or
    powers exceeding those at
the passing of
such
    Act held, enjoyed, and exercised by the Commons House of Parliament of the
    United Kingdom of Great Britain and Ireland, and by the members thereof.

[29]

Parliament exercised this power under s. 4 of
    the
Parliament of Canada Act
, R.S.C. 1985, c. P-1, which defines the
    privileges of the Senate and House of Commons by reference to the privileges of
    the U.K. House of Commons in 1867 and allows Parliament to expand those
    privileges by legislation provided that they do not exceed those of the U.K.
    House of Commons at the date of the enactment. Section 4 provides:

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

4.
Les
          privilèges, immunités et pouvoirs du Sénat et de la Chambre des communes,
          ainsi que de leurs membres, sont les suivants :

(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 is consistent with that Act; and

a)

dune part, ceux que possédaient, à ladoption de la
Loi constitutionnelle de 1867
,
la Chambre des communes du Parlement du Royaume-Uni ainsi
          que ses membres, dans la mesure de leur compatibilité avec cette loi;

(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.
[2]

b)
dautre
          part, ceux que définissent les lois du Parlement du Canada, sous réserve
          quils nexcèdent pas ceux que possédaient, à ladoption de ces lois, la
          Chambre des communes du Parlement du Royaume-Uni et ses membres.

[30]

In
Vaid
,

the Supreme Court
    described s. 4 of the
Parliament of Canada Act
as having conferred on
    the Senate and House of Commons the full extent of the privileges permitted
    under the Constitution: at para. 35. Thus, the main body of the
    parliamentary privileges of Parliament are legislated privileges (rather than
    inherent privileges) and which, unlike provincial legislative privileges, have
    an express constitutional underpinning in s. 18 of the
Constitution Act,
    1867
:
Vaid
, at paras. 36-37; see also
Boulerice
, at
    paras. 51, 137; and
Southam Inc. v. Canada (Attorney General)
, [1990]
    3 F.C. 465, 75 D.L.R. (4th) 289 (C.A.), at p. 479.

(c)

Role in the separation of powers

[31]

Parliamentary privilege forms an essential part
    of how Canadas constitutional democracy maintains the fundamental separation
    of powers between the legislative, executive, and judicial branches of
    government:
Vaid
, at para. 21;
Chagnon
, at para. 21. Parliamentary
    privilege has been described as a corollary to the separation of powers because
    it helps protect the ability of the Senate, the House of Commons, and the
    provincial legislative assemblies to perform their constitutionally-assigned
    functions:
British Columbia (Attorney General) v. Provincial Court Judges
    Association of British Columbia
, 2020 SCC 20, at para. 66.

[32]

Parliamentary privilege does so [b]y shielding some
    areas of legislative activity from external review and [i]t grants the
    legislative branch of government the autonomy it requires to perform its
    constitutional functions:
Chagnon
, at para. 1. The privilege is
    defined by the degree of autonomy necessary to perform Parliaments
    constitutional function: by what is necessary to protect legislators in the
    discharge of their legislative and deliberative functions, and the legislative
    assemblys work in holding the government to account for the conduct of the
    countrys business:
Vaid
, at para. 41.

(d)

Two-step approach to federal parliamentary
    privilege

[33]

The Supreme Court ruled in
Vaid
that a two-step
    approach applies when addressing questions of parliamentary privilege at the
    federal level:

·

At the first step, the court asks whether the
    existence and scope of the claimed privilege have been authoritatively
    established, based on either Canadian or British precedent. If the existence
    and scope of the claimed privilege have been authoritatively established, the
    privilege must be accepted by the court, without further inquiry into the necessity
    of the privilege or the merits of its exercise in the particular case:
Vaid
,
    at paras. 37, 39; see also
Boulerice
, at paras. 6, 54, 56, 60 and 61.

·

At the second step, the court asks whether the
    privilege claimed is supported as a matter of principle under a necessity test:
    the sphere of activity over which privilege is claimed must be so closely and
    directly connected with the fulfillment by the assembly or its members of their
    functions as a legislative and deliberative body  that outside interference
    would undermine the level of autonomy required to enable the assembly and its
    members to do their work with dignity and efficiency:
Vaid
, at para.
    46; see also
Chagnon
, at paras. 29, 31.

[34]

The claimant of parliamentary privilege has the
    onus of establishing its existence and scope and, if required, its necessity:
Vaid
,
    at paras. 5, 29(8) and 53;
Chagnon
, at para. 32.

(e)

Impact on the courts jurisdiction

[35]

Parliamentary privilege is a rule of curial jurisdiction.
    The effect of a matter falling within the scope of parliamentary privilege is
    that its exercise cannot be reviewed by any external body, including a court:
Vaid
,
    at paras. 29(9), 34;
Chagnon
, at paras. 19, 24;
New Brunswick
    Broadcasting
, at pp. 350, 382-384; and
Boulerice
, at para. 54. Parliamentary
    privilege recognizes Parliaments
exclusive
jurisdiction to deal with
    complaints within its privileged sphere of activity:
Vaid
, at paras.
    4, 29(9) and 30 (emphasis in original);
New Brunswick Broadcasting
, at
    pp. 383-384; and
Boulerice
, at para. 55. The principles of
    parliamentary privilege are a means of distinguishing areas of judicial and
    legislative body jurisdiction:
New Brunswick Broadcasting
, at pp.
    383-384. Parliamentary privilege thus provides an immunity from judicial
    review:
New Brunswick Broadcasting
, at p. 342.

[36]

Although the
courts have jurisdiction to determine the
existence
or
scope
of a claimed privilege, they have no jurisdiction to adjudicate the
exercise
of any matter falling within the scope of the privilege:
Vaid
, at
    paras. 40-41, 47-48;
Chagnon
, at paras. 2, 32; and
New Brunswick
    Broadcasting
, at pp. 350, 384-385.

[37]

I now turn to consider Senator Duffys five
    grounds of appeal.

Senator Duffys Grounds of Appeal

(1)

Did the motion judge err in ruling that the impugned
    actions of the Senate fall within the scope of established categories of
    parliamentary privilege?

[38]

Senator Duffys first ground of appeal contends that
    the motion judge erred in law by accepting that the actions of the Senate fall
    within the scope of established categories of parliamentary privilege.

[39]

I do not accept this submission. As I will elaborate,
    I agree with the motion judge that the courts have no jurisdiction to examine
    the Senates impugned conduct because of its established parliamentary privileges
    to discipline its members and administer its internal affairs, and its
    privileges over parliamentary proceedings and freedom of speech. These four privileges
    overlap in this case: one or more of them applies to each of Senator Duffys allegations
    against the Senate. Cumulatively, they give the Senate immunity from these civil
    claims.

(a)

The Senates parliamentary privilege to
    discipline its members

[40]

First, the Senate has an established
    parliamentary privilege to discipline its members.

[41]

In
Vaid
, Binnie J. confirmed that disciplinary
    authority over members is an established category of parliamentary privilege that
    has historically been considered to be justified by the exigencies of
    parliamentary work: at paras. 29(10), 51. At para. 51, Binnie J. cited (among
    other authorities)
Harvey v. New Brunswick

(Attorney General)
,
    [1996] 2 S.C.R. 876, where McLachlin J. (as she then was), concurring with the
    majority in the result, affirmed that a provincial legislatures power to disqualify
    from office a member convicted of an illegal practice under provincial
    elections legislation involves an exercise of parliamentary privilege, and is thus
    immune from judicial review:
Harvey
,

at paras. 55, 89.

[42]

In
Harvey
, McLachlin J. noted that [t]he
    history of the prerogative of Parliament and legislative assemblies to maintain
    the integrity of their processes by disciplining, purging and disqualifying
    those who abuse them is as old as Parliament itself: at para. 64. She affirmed
    the historic privilege of the legislature to deny membership to those who
    disqualify themselves by crime, corruption or other misconduct: at para. 74. A
    matter falling within the scope of this privilege is a matter for the
    legislature, not the courts, to determine: at para. 88; see also
Boulerice
,
    at paras. 95-100.

[43]

Applying these principles to
    this case, I agree with the motion judge that the
Senates
    acts in investigating Senator Duffys expenses as a senator, suspending him
    from the Senate, and taking other disciplinary measures regarding his
    compensation and benefits, all fall within the scope of the Senates
    established parliamentary privilege to discipline its members: at para. 63. The
    courts therefore have no jurisdiction to review the Senates grounds for exercising
    this privilege by investigating and disciplining Senator Duffy.

(b)

The Senates parliamentary privilege to
    administer its internal affairs

[44]

Second, the Senate possesses an established
    parliamentary privilege to administer its internal affairs, including by
    deciding how to allocate parliamentary resources for members allowances and
    benefits.

[45]

In his leading text on parliamentary privilege
    in Canada,
Parliamentary Immunity in Canada
, Joseph Maingot, a former
    law clerk and parliamentary counsel to the House of Commons, writes that [t]he
    privilege of control over its own affairs and proceedings is one of the most
    significant attributes of an independent legislative institution: Maingot, at p.
    166.

[46]

In
Boulerice
, released after the motion
    judges decision, the Federal Court of Appeal accepted that the parliamentary
    privilege over internal affairs includes control over the allocation of
    parliamentary resources for members allowances and benefits.
No
ë
l
    C.J., writing for the court, ruled
that the courts have
    no jurisdiction to judicially review decisions of the House of Commons Board
    of Internal Economy, which had found that certain members of Parliament had
    misused parliamentary funds and required them to repay those amounts: at para. 6.
    The Board was created in 1985 under the
Parliament of Canada Act
to
    govern all financial and administrative matters respecting the House of
    Commons, its premises, its services and staff; and the members of the House of
    Commons:
Parliament of Canada Act
, s. 52.3;
Boulerice
, at
    para. 7. It has exclusive authority to opine on whether a members use of
    parliamentary funds is proper:
Parliament of Canada Act
,

s.
    52.6(1);
Boulerice
, at para. 11.

[47]

No
ë
l C.J. ruled that internal disputes about parliamentary funds are
    protected by an established category of parliamentary privilege relating to
    internal affairs, at para. 94:

[T]he Houses 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 [of
    parliamentary privilege] relating to internal affairs.

[48]

In so ruling, No
ë
l C.J. canvassed the prior caselaw, including
Villeneuve v.
    Legislative Assembly et al.
, 2008 NWTSC 41 and
Filion c. Chagnon
,
    2016 QCCS 6146, affd, 2017 QCCA 630, both of which were cited by the motion
    judge in this case: at paras. 65-68.

[49]

In
Villeneuve
, the Supreme Court of the
    Northwest Territories held that parliamentary privilege prevented the courts
    from reviewing whether the Legislative Assembly of the Northwest Territories
    Board of Management could withhold statutory allowances from a member of the
    Legislative Assembly who had made inaccurate statements about his place of
    residence. This issue was truly internal to the legislature and must be free
    from review by the courts in order to allow the legislative assembly to
    function free from outside interference  as an independent branch of
    government: at para. 34.

[50]

In
Filion
, the Qu
é
bec Superior Court held that parliamentary
    privilege prevented the courts from reviewing the decision of the Qu
é
bec National Assembly to withhold part of
    the transitional allowance from a former member of the Assembly whom the
    Assembly found had claimed illegitimate expenses. The National Assemblys
    decision was protected by its parliamentary privilege to regulate its internal
    affairs without outside interference: at para. 22.

[51]

I agree with the conclusions in
Boulerice
,
Villeneuve
, and
Filion
. These decisions provide compelling
    persuasive authority supporting the established parliamentary privilege over internal
    disputes about parliamentary funds.

[52]

I also agree with the motion judges conclusion that
    the impugned actions of the Senate fall within the scope of this privilege. In
    my view, the Senate has exclusive jurisdiction to administer its internal
    affairs in relation to the allocation of parliamentary resources for members
    allowances and benefits, including decisions on the propriety of Senator Duffys
    expenses.

[53]

It follows, therefore, that the courts cannot
    review the validity of the investigations and reports by the CIBA, even though Senator
    Duffy alleges political interference with its Twenty-Sixth Report about the
    propriety of his expenses.

[54]

As noted above, the CIBA is an internal
    parliamentary committee. It is constituted by the
Parliament of Canada Act
and its composition includes senators appointed by the Leader of the Government
    in the Senate and the Leader of the Opposition in the Senate:
Parliament of
    Canada Act
, s. 19.1(3). The CIBAs functions include acting on all
    financial and administrative matters respecting the Senate, its premises, its
    services and its staff and the members of the Senate: s. 19.3. It is subject
    to the rules, direction and control of the Senate: s. 19.1(4). It has broad
    authority to make regulations about the use by senators of funds, goods,
    services and premises provided to them for the carrying out of their
    parliamentary functions and the management of, and accounting for, by
    senators of those funds: s. 19.5(1). The CIBA also has exclusive authority
    to determine whether any senator has properly used any resources provided to them
    for their parliamentary functions: s. 19.6(1).

[55]

I agree with the motion judge that, based on the
    CIBAs statutory mandate, it exercises functions at the core of the Senates
    legislative powers, which are therefore protected by parliamentary privilege,
    at para. 83:

CIBAs exclusive power to allocate  and
    withhold  parliamentary funds and resources to any
given
senator is
very
much at issue in
    Senator Duffys lawsuit. That is because its decisions may be critical to a
    senators ability to perform their parliamentary functions adequately.
In light of
this, I conclude that CIBA exercises
    functions at the core of the Senates legislative powers.

[56]

Finally, I agree with the motion judges
    conclusion that Senator Duffys claim asks the court to second-guess
    compensation and other financial decisions that the Senate alone, through the
    CIBA, has exclusive authority to make: at para. 88. Parliamentary privilege
    precludes the courts from doing so.

(c)

The Senates parliamentary privilege over
    parliamentary proceedings

[57]

Third, the Senate enjoys an established
    parliamentary privilege over proceedings before the Senate.

[58]

In
Vaid
, Binnie J. affirmed that
    parliamentary privilege extends to control by the Houses of Parliament over
    debates or proceedings in Parliament, including day-to-day procedure in the
    House: at para. 29(10); see also
Mikisew Cree First Nation v. Canada
    (Governor General in Council)
, 2018 SCC 40, [2018] 2 S.C.R. 765, at para. 37; and
Boulerice
, at paras. 104-108.

[59]

The CIBAs work as a Senate committee falls
    under proceedings in Parliament. As a technical parliamentary term, proceedings
    are the events and steps leading up to some formal action, including a
    decision, taken by the House in its collective capacity: Maingot, at p. 74,
    citing C.J. Boulton, ed.,
Erskine Mays Treatise on the Law, Privileges,
    Proceedings and Usage of Parliament
, 21st ed. (London:
    Butterworth-Heinemann, 1989), at p. 92. The Senates privilege over
    proceedings in Parliament thus encompasses the CIBAs work in discharging its
    statutory mandate to act on all financial and administrative matters within
    the Senate. It includes the CIBAs internal investigations about senators use
    of parliamentary funds in acting as senators, any report made by the CIBA based
    on those investigations, and the Senates decisions on whether or how to respond.

[60]

I also agree with No
ë
l C.J.s observation in
Boulerice
that the Houses
    exclusive right to regulate and oversee the use of parliamentary funds by Parliamentarians
    brings with it the exclusive right to decide how these rules are to be
    applied: at para. 120. In my view, the Senate enjoys an equivalent privilege.

[61]

Senator Duffys allegations about political
    interference in the CIBAs investigation and findings and the Senates response
    in suspending him all target conduct falling within the established parliamentary
    privilege over proceedings in Parliament. I therefore agree with the motion
    judge that the courts have no jurisdiction to evaluate their propriety, fairness,
    or legality: at para. 92.

(d)

The Senates parliamentary privilege over
    freedom of speech in the Senate

[62]

Finally, the Senate benefits from an established
    parliamentary privilege over freedom of speech.

[63]

The privilege over freedom of speech was recognized
    as long ago as 1689 in art. 9 of the U.K.
Bill of Rights
, and was affirmed
    by Binnie J. in
Vaid
, at paras. 29(10), 39. In
New Brunswick Broadcasting
,
    McLachlin J. stated that the privilege includes immunity from civil
    proceedings with respect to any matter arising from the carrying out of the
    duties of a member of the House through an unwritten constitutional right
    to speak freely in the House without fear of civil reprisal: at p. 385.

[64]

The free speech privilege applies not only to
    speech in the House of Commons and the Senate but also before their respective
    committees. As noted by Maingot, at p. 31:

Whatever freedom of speech applies in either
    House of Parliament also applies to committees of either House.

When part of parliamentary business,
    therefore, whatever is said in the Senate or the House of Commons or in one of
    the committees is not actionable in the ordinary courts, whether or not it is
    said in good faith. [Footnotes omitted.]

[65]

Persons exercising the privilege of freedom of
    speech are accountable only to Parliament, as Maingot explains, at pp. 71-72:

While taking part in [proceedings in
    Parliament], officers of Parliament, Members of Parliament, and the public are
    immune from being called to account in the courts or elsewhere, save the Houses
    of Parliament, for any act done or words uttered in the course of participating,
    however false or malicious the act and however malicious the words might be;
    and any member of the public prejudicially affected is without redress.

See also
Ontario v. Rothmans et al.
,
    2014 ONSC 3382, 374 D.L.R. (4th) 175, at paras. 9-20;
Lavigne v. Ontario
    (Attorney General)
(2008), 91 O.R. (3d) 728 (Sup. Ct.), at paras. 23,
    47-55;
Gagliano v. Canada (Attorney General)
, 2005 FC 576, [2005] 3
    F.C.R. 555, at paras. 62-97, 108-111, affd, 2006 FCA 86, 268 D.L.R. (4th) 190;
Canada (Deputy Commissioner, Royal Canadian Mounted Police) v. Canada
    (Commissioner, Royal Canadian Mounted Police)
, 2007 FC 564, [2008] 1
    F.C.R. 752, at paras. 63-65; and
Prebble v. Television of New Zealand
    Limited
, [1994] 3 NZLR 1, [1995] 1 A.C. 321 (P.C.), at pp. 332-334.

[66]

The parliamentary privilege of freedom of speech
    is directly engaged here. I agree with the motion judge that many of
    Senator Duffys allegations impugn exercises of free speech before the Senate
    and the CIBA: at para. 107. This includes, for example, Senator Duffys
    challenges to the Senate motion and the vote to suspend him from the Senate without
    benefits; the Senates decision to deny his request for reimbursement of his
    salary, living allowances, and pension accruals withheld while he was suspended,
    and to claw back funds found to have been inappropriately claimed as Senate
    expenses; the CIBAs Twenty-Sixth Report as having been politically motivated; and
    the CIBAs decision to deny his request for partial reimbursement of legal
    expenses and disbursements incurred in successfully defending the criminal
    charges against him. All these exercises of free speech in the Senate were part
    of the Senates parliamentary business. The courts therefore have no
    jurisdiction to adjudicate them.

(e)

Conclusion

[67]

I conclude that the motion judge did not err in
    ruling that Senator Duffys allegations against the Senate are protected from
    judicial review by one or more categories of established parliamentary
    privilege. I would therefore reject the first ground of appeal.

(2)

Did the motion judge err in ruling that parliamentary
    privilege applies to the Senates allegedly unlawful conduct?

[68]

Senator Duffys second and principal ground of
    appeal contends that, quite apart from his argument about the categories of
    privilege in issue, parliamentary privilege cannot apply because he has alleged
    that certain senators and the CIBA acted at the unlawful and potentially
    criminal behest of the PMO. He says that this allegation is supported by the
    findings of Vaillancourt J. at his criminal trial. As Senator Duffys counsel stated
    in oral argument, the allegation is that the CIBA and certain senators followed
    the PMOs bidding in lock step, like marching soldiers.

[69]

Senator Duffy also contends that it is
    fundamental to the rule of law that the courts must be able to review state
    conduct for illegality, including illegal conduct within the Senate. He says that
    the motion judges most significant error was her conclusion that parliamentary
    privilege precludes any court from determining whether [the Senates]
    decisions were unlawful: at para. 88. In oral argument, Senator Duffys
    counsel stated
that
this finding defies the notion
    of the paramountcy of constitutional principles, which include the rule of
    law. He says that the courts responsibility to uphold the rule of law is
logically
    and legally prior
to
the categories of parliamentary
    privilege invoked by the Senate.

[70]

This argument was not presented to the
    motion judge and relies on several new authorities.

I do not accept the
    argument, for the following three reasons.

(a)

Justice Vaillancourt did not find criminal
    conduct by the PMO or the Senate

[71]

First, as a factual matter, I note that while
    Vaillancourt J. described some of the conduct from within the PMO as
    unacceptable and driven by deceit, he made no findings of criminality
    against anyone inside the PMO or Senate, because those persons were not on
    trial:
R. v. Duffy
, 2016 ONCJ 220, at paras. 1038, 1239.

[72]

Arguably, however, the amended statement of
    claim does allege criminality. It claims that Senator Duffy was extorted into
    agreeing to release a statement
that
he had
    claimed amounts in error and that he would pay the amounts back: at para. 36.
    Elsewhere, the claim alleges illegality that falls short of criminality: it pleads
    that the actions of Nigel Wright and the PMO were mindboggling and shocking and
    the actions of the
Senate and certain senators were
    unlawful, but only
in the administrative law sense: at paras. 88,
    108.

[73]

I will, however, proceed to evaluate Senator
    Duffys argument by assuming that it does allege criminal conduct from within
    the PMO and the Senate.

(b)

Even if the claim alleges criminality,
    parliamentary privilege deprives the courts of jurisdiction to adjudicate
    Senator Duffys allegations

[74]

Second, even if I assume that the claim alleges criminality,
    Senator Duffys argument that parliamentary privilege does not protect criminal
    conduct within the Senate is cast too broadly. When framed more precisely, the
    argument cannot defeat the Senates claim of privilege.

[75]

The argument is framed too broadly because nobody
    disputes that parliamentarians can commit crimes within Parliament and that parliamentary
    privilege would not necessarily protect them from criminal prosecution. Indeed,
    this point is confirmed by the prosecution and acquittal of Senator Duffy for alleged
    criminal conduct. Maingot summarizes the Canadian position as follows, at p.109:

Members of Parliament are amenable to the
    criminal law except
in respect of
words spoken
    or acts done in the transaction of parliamentary business. While a Member of
    either House may participate in debate with irrelevant remarks and defamatory
    libel, it is difficult to envisage a criminal act that would fit into or be
    part of a parliamentary proceeding. Thus, there is no authority for the
    proposition that an ordinary crime committed in the House of Commons would be
    withdrawn from the ordinary course of criminal justice [quoting
Bradlaugh
    v. Gossett
(1884), 12 Q.B.D. 271]. Such act in question would, while not
    part of a proceeding in Parliament, have an aspect of contempt of Parliament
that would be
dealt with by the House, and the
    criminal aspect would be dealt with by the courts. [Footnotes omitted.]

[76]

Binnie J. acknowledged the same principle in
Vaid
,
    citing approvingly
R. v.

Bunting
(1885), 7 O.R. 524 (H.C. (Q.B.
    Div.)), which accepted that a conspiracy to change the government by bribing
    members of a provincial legislature can be prosecuted criminally. Binnie J.
    stated, at para. 43:

[A]s stated in
Erskine May
(19th ed.
    1976), at p. 89, not
everything that is said or done within the Chamber
    during the transaction of business forms part of proceedings in Parliament
.
    Particular words or acts may be entirely unrelated to any business which is in
    course of transaction, or is in a more general sense before the House as having
    been ordered to come before it in due course [] Thus in
R. v. Bunting
(1885), 7 O.R. 524, for example, the Queens Bench Division held that a
    conspiracy to bring about a change in the government by bribing members of the
    provincial legislature was not
in any way
connected
    with a proceeding in Parliament and, therefore, the court had jurisdiction to
    try the offence. [Emphasis in original.]

[77]

The following observation of OConnor J., dissenting,
    in
Bunting
, at p. 563, is often quoted in support of the view that
    parliamentarians can be prosecuted under the criminal law for acts within Parliament
    that fall outside the scope of their parliamentary business:

I desire it to be understood  that I do not
    hold that a member of Parliament is not amenable to the ordinary [c]ourts for
    anything he may say or do in Parliament. I merely say he is not so amenable for
    anything he may say or do within the scope of his duties
in the course of parliamentary business
, for in such
    matters he is privileged and protected by
lex et consuetudo parliamenti
;
    and for his protection, and the preservation of its own integrity, honour, and
    efficiency, Parliament has reserved to itself the exclusive privilege and
    authority to investigate and decide all matters that arise
concerning
either House thereof.

See also Maingot, at pp. 76, 86, 89,
    109, 189-190 and 273.

[78]

The same proposition was accepted more recently by
    the U.K. Supreme Court in
R. v. Chaytor
, [2010] UKSC 52, which held
    that parliamentary privilege did not deprive the criminal courts of jurisdiction
    to try former members of Parliament on charges of false accounting of
    parliamentary expenses. In reasons concurred with by
a
    majority of the
Court, Lord Rodger explained that the common law has
    long accepted that
prima facie
a member of Parliament can be
    prosecuted before the courts for an ordinary crime committed in the House of
    Commons, such as stealing money from the till in the Members Dining Room: at
    para. 121. He noted, at para. 113, that the expression ordinary crime
    appeared in the judgment of Stephen J. in
Bradlaugh v. Gossett
(1884),
    12 Q.B.D. 271, at p. 283, in which he said: I know of no authority for the
    proposition that an ordinary crime committed in the House of Commons would be
    withdrawn from the ordinary course of criminal justice. Lord Rodger added that,
    by contrast, a member could not be prosecuted for a crime such as sedition for saying
    something during debates in the House, because this would be protected by the
    parliamentary privilege of freedom of speech: at para. 113. The distinction between
    what can and cannot be prosecuted under the criminal law, he explained, turns
    on whether raising the issue in the ordinary courts would call into question
    decisions taken by the House or one of its committees on a matter intended to
    be under the exclusive cognizance of the House and its committees: at para.
    120.

[79]

In view of these authorities, the issue Senator
    Duffy raises must be framed more precisely. The issue is not whether Senator
    Duffy has alleged criminal conduct in the Senate. The issue is whether he has alleged
    an ordinary crime in the Senate. Has he impugned conduct connected with a
    proceeding in Parliament? And would raising these issues in the ordinary courts
    call into question decisions taken by the Senate and its committees on matters
    intended to be under the exclusive cognizance of the Senate and its committees?

[80]

The conduct that Senator Duffy impugns here is
    not an ordinary crime, such as theft. The alleged unlawful or potentially criminal
    interference by the PMO with the CIBA and the decisions of the Senate are integrally
    connected with proceedings in Parliament  the Senates investigation,
    deliberations, and decisions regarding Senator Duffys expenses and benefits as
    a senator. Raising these issues before the courts would unavoidably call into
    question the disciplinary and internal decisions taken by the Senate and the
    CIBA on matters that ordinarily fall within established categories of
    parliamentary privilege.

[81]

I therefore conclude that, even if Senator Duffy
    has pleaded criminality in his civil action, the courts have no jurisdiction to
    adjudicate these allegations.

(c)

Senator Duffys rule of law argument does
    not permit the courts to circumvent parliamentary privilege

[82]

Third, there is no support for Senator Duffys contention
    that the rule of law permits the courts to scrutinize the legality of conduct within
    Parliament if that conduct is otherwise protected by parliamentary privilege.

[83]

Senator Duffy notes that the rule of law is a
    foundational principle of the Canadian Constitution: see e.g.,
Reference re
    Secession of Quebec
, [1998] 2 S.C.R. 217, at paras. 49-54, 70-78;
Manitoba
    Provincial Judges Assn. v. Manitoba (Minister of Justice)
, [1997] 3 S.C.R.
    3, at para. 99. He cites several
cases in support of his
    claim
that the rule of law allows the courts to review the exercise of a
    parliamentary privilege even if the privilege otherwise applies:
Roncarelli
    v. Duplessis
, [1959] S.C.R. 121;
Conseil des Ports Nationaux v. Langelier
    et al.
, [1969] S.C.R. 60;
Roman Corp. v. Hudsons Bay Oil & Gas
    Co.
, [1973] S.C.R. 820; and
R (on the application of Miller) v. The
    Prime Minister
, [2019] UKSC 41.

[84]

In my view, none of these cases supports Senator
    Duffys position.

[85]

In
Roncarelli
, the Supreme Court held
    that the Premier of Qu
é
bec was
    liable in damages caused by unlawfully directing the revocation of the liquor
    license of a restaurant owned by a Jehovahs Witness: at pp. 125, 145, 161 and
    187. The case addressed the courts power to review the legality of executive
    action. It did not address parliamentary privilege.

[86]

In
Langelier
, the Supreme Court cited
Roncarelli
approvingly and upheld an injunction to stop the National Harbours Board from
    carrying out works on the St. Lawrence River that property owners claimed
    injuriously affected their properties: at p. 65. The Court rejected the Boards
    argument that, as an agent of the Crown, it could not be enjoined: at pp. 70-72,
    74-75. The case addressed Crown immunity. It did not address parliamentary
    privilege.

[87]

In
Roman Corp.
, the Supreme Court held
    that a statement of government policy made
bona fide
by the Prime
    Minister and a federal minister was not actionable. The statement announced the
    federal governments intention to enact legislation preventing a change of
    control of Canadian uranium resources from Canadian to non-Canadian hands. The
    lower courts had ruled that statements of government policy made in the House
    of Commons were not actionable partly because of parliamentary privilege. While
    not disagreeing with this view, the Supreme Court preferred to deal with the
    appeal on the basis of Crown immunity: at p. 828. Nothing in this decision
    assists Senator Duffy.

[88]

In
Miller
, the U.K. Supreme Court held
    that the advice given by the U.K.s Prime Minister to Her Majesty the Queen
    that Parliament should be prorogued for five of the eight weeks just before the
    Brexit date of October 31, 2019, when the U.K. was scheduled to leave the
    European Union, was unlawful. The Court stated that the Prime Ministers action
    had the effect of frustrating or preventing the constitutional role of
    Parliament in holding the Government to account: at para. 55. The Court
    also rejected the argument that parliamentary privilege prevented the courts
    from considering the validity of the prorogation itself. It held that
    prorogation is not a proceeding in Parliament, because it is not part of the
    core or essential business of Parliament, but rather brings that core or
    essential business of Parliament to an end: at para. 68.
Miller
thus concerns
    the justiciability and legality of the exercise of the prerogative power to order
    a prorogation of Parliament, a power recognised by the common law and
    exercised by the Crown: at para. 30. I make no comment on whether courts in
    Canada would take a similar approach in reviewing the legality of prorogation based
    on the advice of the Prime Minister of Canada. However,
Miller
offers
    no support for Senator Duffys claim that the courts can review an exercise of
    parliamentary privilege alleged to be contrary to the rule of law.

[89]

Thus, I conclude that Senator Duffys rule of
    law argument cannot defeat the Senates parliamentary privilege.

[90]

I hasten to add
that
this
    conclusion does not imply that parliamentary privilege is anathema to the rule
    of law. To the contrary: [p]arliamentary privilege does not create a gap in
    the general public law of Canada but is an important part of it:
Vaid
,
    at para. 29(3).

[91]

Nor does this leave Senator Duffy without remedies.
    Instead, he must pursue his remedies before the Senate, which has its own power
    of judicature according to its own rules: see
Vaid
, at paras. 20,
    29(9) and 30;
New Brunswick Broadcasting
, at pp. 379, 380; and
Maingot
,
    at pp. 20, 197, 282-285 and 299-304.
As noted by
Lord
    Rodger in
Chaytor
, at para. 105:

The expression, the High Court of
    Parliament, makes the point that Parliament has a certain power of judicature
     as do the two Houses in their separate capacities. In exercising this
    jurisdiction the Houses apply the law and custom of Parliament (
lex et
    consuetudo parliamenti
).

[92]

Finally, this conclusion does not absolve the
    Senate of accountability for its actions. This is because while legislative
    assemblies are not accountable to the courts for the ways in which they
    exercise their parliamentary privileges, they remain accountable to the
    electorate:
Chagnon
, at para. 24, citing Steven R. Chaplin,
House
    of Commons v. Vaid
: Parliamentary Privilege and the Constitutional
    Imperative of the Independence of Parliament (2009), 2 J.P.P.L. 153, at p.
    164.

[93]

I would therefore reject Senator Duffys second
    ground of appeal.

(3)

Did the motion judge err in failing to address
    the necessity of the categories of parliamentary privilege claimed?

[94]

Senator Duffys third ground of appeal asserts that
    the motion judge erred in concluding that the Senate need not establish the
    necessity of the four categories of parliamentary privilege it invoked. Senator
    Duffys factum before this court contends that [e]ven if a certain area has
    historically been considered subject to parliamentary privilege, it must be
    shown that it continues to be necessary to the independent functioning of the
    legislative body. Senator Duffy claims that the necessity test applies even
    to previously recognized categories of privilege.

[95]

In support of this argument, Senator Duffy relies
    on the following comments of Karakatsanis J. in
Chagnon
, at para. 31,
    which he says confirm that the two-step approach in
Vaid
no longer
    applies when evaluating the existence of parliamentary privilege at the federal
    level:

[G]iven its rationale, the necessity of a
    privilege must be assessed in the contemporary context. Even if a certain area
    has historically been considered subject to parliamentary privilege, it may
    only continue to be so if it remains necessary to the independent functioning
    of our legislative bodies today (
New Brunswick Broadcasting
, at p. 387;
    see also
Vaid
, at para. 29(6)).

[96]

Recall that under
Vaid
s two-step approach,
    the court asks, at step one, whether the privilege has been authoritatively
    established based on Canadian or British precedent, and if so, no further
    inquiry into the necessity of the privilege is required. At step two, the court
    asks whether the privilege is supported as a matter of principle under the
    necessity test: see above, at para. 33.

[97]

I do not agree with Senator Duffys contention
    that all claims of federal parliamentary privilege must now meet the necessity
    test.

[98]

I begin by recalling Binnie J.s explanation in
Vaid
,
    at para. 37, that parliamentary privilege is approached differently at the
    federal and provincial levels because the constitutional underpinning of the privilege
    is different at each level:

[T]he framers of the
Constitution Act,
    1867
thought it right to use Westminster as the benchmark for parliamentary
    privilege in Canada, and if the existence and scope of a privilege at
    Westminster is authoritatively established (either by British or Canadian
    precedent), it ought to be accepted by a Canadian court
without the need for
further inquiry into its necessity.
This result
    contrasts with the situation in the provinces where legislated privilege,
without any
underpinning similar to s. 18 of the
Constitution
    Act, 1867
, would likely have to meet the necessity test
(
Harvey
,
    at para. 73). [Emphasis added.]

[99]

Step one  whether the privilege is
    authoritatively established by British or Canadian precedent  applies to parliamentary
    privilege at the federal level but not to legislated parliamentary privilege at
    the provincial level because s. 18 of the
Constitution Act, 1867
authorizes Parliament to enact laws defining the privileges of the Senate and
    the House of Commons. Parliament has done so through s. 4 of the
Parliament
    of Canada Act
by defining those privileges by reference to the privileges
    of the House of Commons in the United Kingdom. There is thus no need to inquire
    into the necessity of federal parliamentary privileges  the main body of which
    are legislated  because the constitutional status of those privileges has been
    put beyond question by express constitutional and legislative enactments in s.
    18 of the
Constitution Act, 1867
and s. 4 of the
Parliament of
    Canada Act
:
Vaid
, at para. 36. This is not true of legislated parliamentary
    privileges at the provincial level, which would likely have to meet the necessity
    test.

[100]

Binnie J. also explained in
Vaid
that inherent
    parliamentary privileges at the provincial level must
always
meet the
    necessity test, at para. 29(6):

When the existence of a category (or sphere of
    activity) for which inherent privilege is claimed (
at least at the
    provincial level
) is put in issue, the court must not only look at the
    historical roots of the claim but also to determine whether the category of
    inherent privilege
continues
to be necessary to the functioning of the
    legislative body today. Parliamentary history, while highly relevant, is not
    conclusive. [Underlining in original; italics added.]

[101]

Lastly, while Binnie J.
left
    open the possibility that certain inherent or legislated privileges at the
    federal level would fall to be assessed under the necessity test defined by
    the exigencies and circumstances of our own Parliament, he stated that [t]his
    point would have to be explored if and when it arises for decision:
Vaid
,
    at para. 38.

[102]

To summarize the direction from
Vaid
: (1) at the federal
    level, the two-step approach applies to both legislated and inherent parliamentary
    privilege; (2) at the provincial level, inherent parliamentary privilege must always
    meet the necessity test, while a legislated parliamentary privilege would
    likely have to do so.

[103]

Like the Federal Court of Appeal in
Boulerice
, at para. 74,
    I do not read
Chagnon
as having displaced the orthodoxy in
Vaid
that when a legislated parliamentary privilege is shown to fit within an
    established category, necessity cannot be revisited. I say this for two
    reasons.

[104]

First,
Chagnon
addressed provincial rather than federal parliamentary
    privilege. The Courts focus was therefore on establishing the necessity of the
    inherent provincial privilege claimed to dismiss the security guards employed
    by the National Assembly of Qu
é
bec,
    a privilege that the Court held had not been established:
Chagnon
, at
    para. 4; see also
Boulerice
, at para. 72.

[105]

Second, nothing in
Chagnon
suggests or even hints that the
    Supreme Court intended to overrule
Vaid
by eliminating the first step
    of
Vaid
s two-step approach to federal parliamentary privilege.
Chagnon
addressed only the scope of the inherent provincial parliamentary privilege of
    the National Assembly of Qu
é
bec:
    at paras. 16, 43-44 and 56.

[106]

I would therefore reject Senator Duffys argument that the motion
    judge erred by not addressing the necessity of the four categories of
    parliamentary privilege invoked by the Senate.

[107]

In any event, if it were necessary to decide the point, I would
    conclude that
each of these four categories
of
    parliamentary privilege continues to meet the necessity test. The established privileges
    of discipline of members, control over internal affairs and parliamentary
    proceedings, and freedom of speech are all deeply rooted in the history of
    parliamentary privilege. Each privilege helps preserve the Senates
    independence and promotes the workings of representative democracy. They allow
    the Senate to proceed fearlessly and without outside interference in
    discharging its constitutional role in enacting legislation and acting as a
    check on executive power:
Chagnon
, at para. 23;
New Brunswick
    Broadcasting
, at p. 354; and
Vaid
, at paras. 21, 41. If the
    courts could be asked to adjudicate the Senates day-to-day administration of
    these matters, the Senates autonomy as a legislative body and its freedom to
    do its legislative work with dignity and efficiency would be undermined: see
Chagnon
,
    at para. 23;
Vaid
, at paras. 29(4)-(8); and
Boulerice
, at
    paras. 123-126.

[108]

I would therefore reject Senator Duffys third ground of appeal.

(4)

Did the motion judge err by failing to reconcile
    the Senates parliamentary privilege with the
Charter
?

[109]

Senator Duffys fourth ground of appeal asserts that the motion
    judge erred in stating that because the Senates impugned actions are protected
    by parliamentary privilege, she could not give any consideration to whether those
    actions were  contrary to Senator Duffys
Charter
rights: at para.
    14.

[110]

I do not accept this argument. The Supreme Court has repeatedly held
    that where parliamentary privilege applies, the legislative body holding the privilege
    has the exclusive competence to adjudicate an alleged breach of the
Charter
.

[111]

For example, in
Vaid
, Binnie J. stated, at para. 30:

One part of the Constitution cannot abrogate
    another part of the Constitution
(
Reference re Bill 30, An Act to Amend
    the Education Act (Ont.)
, [1987] 1 S.C.R. 1148;
New Brunswick
    Broadcasting
, at pp. 373 and 390.
In matters of privilege, it would lie
    within the exclusive competence of the legislative assembly itself to consider
    compliance with human rights and civil liberties. The House, with one voice,
    accuses, condemns and executes
:
Stockdale v. Hansard
, at p. 1171.
    [Emphasis added.]

[112]

More recently, in
Chagnon
, Karakatsanis J. stated, at para.
    24:

Judicial review
of
    the exercise of
parliamentary privilege,
even for Charter compliance
,
    would effectively nullify the
necessary
immunity
    this doctrine
is meant to afford
the
    legislature (
New Brunswick Broadcasting
, at pp. 350 and 382-84;
Vaid
,
    at para. 29(9). [Emphasis added.]

[113]

Because I conclude that parliamentary privilege applies to the
    impugned actions of the Senate, the courts have no jurisdiction to review Senator
    Duffys claim that the Senate breached his
Charter
rights. Any remedy
    Senator Duffy seeks
against the Senate
must be
    pursued with the Senate.

[114]

I would therefore reject Senator Duffys fourth ground of appeal.

(5)

Did the motion judge err in ruling that the
    Senate had not waived its parliamentary privilege?

[115]

Senator Duffys final ground of appeal asserts that the Senate,
    through its conduct, waived any parliamentary privilege that it may have had. His
    factum contends that [g]iven that [the] CIBA referred the matter to the RCMP
    to investigate and proceed with charges against Senator Duffy, [t]he Senate
    waived its privilege over the subject matter at issue in this proceeding.

[116]

The motion judge cited caselaw accepting that parliamentary
    privilege can be waived by Parliament itself, but concluded that because
    parliamentary privilege is a constitutional principle it requires an express
    waiver by Parliament and cannot be waived implicitly: at paras. 111-113, citing
Rothmans
, at para. 35 and
Canada (Deputy Commissioner, Royal
    Canadian Mounted Police) v. Canada (Commissioner, Royal Canadian Mounted
    Police)
, 2007 FC 564, [2008] 1 F.C.R. 752, at para. 81. The motion judge found
    no conduct alleged in the statement of claim that would indicate, clearly and
    unambiguously, that the Senate waived its privilege: at para. 114.

[117]

A rare example of Parliament purporting to expressly waive parliamentary
    privilege was referred to in
R. v. Connolly
(1891), 22 O.R. 220 (H.C.
    (Comm. Pl.)), at pp. 233-234, where the House of Commons, on a motion of the
    Minister of Justice, passed a resolution permitting evidence given by witnesses
    who testified before a parliamentary committee to be used in criminal
    prosecutions against them: see also Maingot, at pp. 109-110;
Rothmans
,
    at para. 21, footnote 27.

[118]

Yet in
Boulerice
, at para. 127, No
ë
l C.J. mooted whether, as a matter of constitutional principle, parliamentary
    privilege can ever be waived:

Arguably, a privilege which ensures the
    independence of the House in performing core legislative functions cannot be
    waived by Parliament as doing so would undermine the very principle on which
    the Westminster model of Parliament is based.

[119]

In
Boulerice
,

the Federal Court of Appeal did not resolve
    this question because it concluded that nothing in the legislation in the case
    before it suggested that Parliament intended to waive or abandon any of its
    privileges: at para. 130.

[120]

Support for the issue mooted in
Boulerice
might be found in
    the remarks of McLachlin J. in
New Brunswick Broadcasting
, at p. 379,
    when she noted that parliamentary privileges must be held
absolutely
and constitutionally if they are to be effective (emphasis added).

[121]

On the other hand, it could be argued that
because s. 18 of the
Constitution Act, 1867
gives
    Parliament the legislative authority to define the Senates parliamentary
    privileges through federal legislation, it could choose to define its
    privileges more narrowly, such as by waiving its privilege in a particular
    case.

[122]

Even if parliamentary privilege can be waived  which I believe need
    not be decided in this case  I would conclude that because of the institutional
    and constitutional character of parliamentary privilege, any waiver would require
    an express statement, either in legislation or possibly in a parliamentary resolution,
    that clearly and unambiguously waives the privilege.

[123]

I agree with the motion judge that Senator Duffys amended statement
    of claim pleads no express, clear, and unambiguous waiver by the Senate of its
    parliamentary privilege. I would also find that merely referring the matter to
    the RCMP for criminal investigation in this case would not meet the required
    standard for waiver of parliamentary privilege. The Senate should be able to refer
    matters to the appropriate authorities for criminal investigation without fear
    that doing so will jeopardize its constitutional independence from the other
    branches of government.

[124]

I would therefore reject Senator Duffys fifth and final ground of
    appeal.

F.

Conclusion

[125]

For these reasons, I conclude that Senator Duffys allegations
    against the Senate fall within the scope of established categories of
    parliamentary privilege. The courts therefore lack jurisdiction to adjudicate these
    allegations. They may be adjudicated only by the Senate itself.

[126]

Despite Mr. Greenspons forceful submissions, I would dismiss the
    appeal. If the parties cannot resolve
the issue of
costs,
    I would order
that
they may make brief written
    submissions to the court within 30 days of this decision.

Released: August 28, 2020 (G.R.S.)

M.
    Jamal J.A.

I
    agree. G.R. Strathy C.J.O.

I agree. J.C. MacPherson J.A.

[1]

In oral argument,
counsel
for the
    Senate advised that when Parliament was dissolved, Senator Duffy was
    automatically placed on a leave of absence and was paid his salary as a senator
    in accordance with the Senates
Rules
: Senate,

Rules of the Senate of Canada
(2017), r. 15-4. For the purposes of this appeal, however, I have assumed that
    the facts pleaded in Senator Duffys amended statement of claim are true.

[2]

The motion judge interpreted s. 18 of the
Constitution Act
,
    1867
as limiting the privileges of the Senate and the House of Commons to
    those defined in federal legislation that do not exceed those held, enjoyed
    and exercised by the U.K. Parliament and its members in 1867: at para. 26.
    With respect, I do not read s. 18 of the
Constitution Act
,
    1867
(as amended in 1875) as imposing this temporal limitation. The link to
    the privileges enjoyed by the U.K. House of Commons in 1867 arises from s. 4(a)
    of the
Parliament of
    Canada Act
;
and s. 4(b) of the
Parliament of Canada Act
allows
    Parliament to enact legislation expanding the privileges of the Senate and the
    House of Commons provided that they do not exceed those of the U.K. House of
    Commons at the time of the enactment: see Maingot, at pp. 19-20; Hogg, at §1.7,
    p. 1-16;
Boulerice
,
    at paras. 57-58;
Vaid
,
    at para. 33; and
Harvey
    v. New Brunswick (Attorney General)
, [1996] 2 S.C.R. 876, at
    para. 66.


COURT OF APPEAL FOR ONTARIO

CITATION: Fontaine v. Canada (Attorney
    General), 2020 ONCA 540

DATE: 20200827

DOCKET: M51681 (C68080)

Pepall J.A. (Motion Judge)

BETWEEN

Larry
    Philip Fontaine in his personal capacity and in his capacity as the Executor of
    the estate of Agnes Mary Fontaine, deceased, Michelline Ammaq, Percy Archie,
    Charles Baxter Sr., Elijah Baxter, Evelyn Baxter, Donald Belcourt, Nora
    Bernard, John Bosum, Janet Brewster, Rhonda Buffalo, Ernestine
    Caibaiosai-Gidmark, Michael Carpan, Brenda Cyr, Deanna Cyr, Malcolm Dawson, Ann
    Dene, Benny Doctor, Lucy Doctor, James Fontaine in his personal capacity and in
    his capacity as the Executor of the Estate of Agnes Mary Fontaine, deceased, Vincent
    Bradley Fontaine, Dana Eva Marie Francey, Peggy Good, Fred Kelly, Rosemarie Kuptana,
    Elizabeth Kusiak, Theresa Larocque, Jane McCullum, Cornelius McComber, Veronica
    Marten, Stanley Thomas Nepetaypo, Flora Northwest, Norman Pauchey, Camble
    Quatell, Alvin Barney Saulteaux, Christine Semple, Dennis Smokeyday, Kenneth
    Sparvier, Edward Tapiatic, Helen Winderman and Adrian Yellowknee

Plaintiffs/Respondents

(Responding
    Parties)

and

The
    Attorney General of Canada, The Presbyterian Church In Canada, The General
    Synod of the Anglican Church of Canada, The United Church of Canada, The Board of
    Home Missions of The United Church of Canada, The Women's Missionary Society of
    The Presbyterian Church, The Baptist Church In Canada, Board of Home Missions And
    Social Services of the Presbyterian Church In Bay, The Canada Impact North
    Ministries of the Company for the Propagation of the Gospel in New England
    (also known as The New England Company), The Diocese of Saskatchewan, The Diocese
    of The Synod of Cariboo, The Foreign Mission of The Presbyterian Church in
    Canada, The Incorporated Synod of the Diocese of Huron, The Methodist Church of
    Canada, The Missionary Society of the Anglican Church of Canada, The Missionary
    Society of the Methodist Church of Canada (also known as The Methodist
    Missionary Society of Canada), The Incorporated Synod of the Diocese of Algoma,
    The Synod of The Anglican Church of the Diocese of Quebec, The Synod of The
    Diocese of Athabasca, The Synod of the Diocese of Brandon, The Anglican Synod of
    the Diocese of British Columbia, The Synod of The Diocese of Calgary, The Synod
    of the Diocese of Keewatin, The Synod of the Diocese of Qu'appelle, The Synod of
    the Diocese of New Westminster, The Synod of the Diocese of Yukon, The Trustee
    Board of the Presbyterian Church. in Canada, The Board of Home Missions and
    Social Service of the Presbyterian Church of Canada, The Women's Missionary Society
    of the United Church of Canada, Sisters of Charity, A Body Corporate also known
    as Sisters of Charity of St. Vincent de Paul, Halifax, also known as Sisters of
    Charity Halifax, Roman Catholic Episcopal Corporation of Halifax, Les Soeurs de
    Notre Dame-Auxiliatrice, Les Soeurs de St. Francois d'Assise, Insitut des Soeurs
    du Bon Conseil, Les Soeurs de Saint-Joseph de Saint-Hyancithe, Les Soeurs de
    Jesus-Marie, Les Soeurs de lAassomption de la Sainte Vierge, Les Soeurs de l'Assomption
    de la Saint Vierge de l'Alberta, Les Soeurs de la Charite de St.-Hyacinthe, les
    Oeuvres Oblates de l'Ontario, Les Residences Oblates du Quebec, La Corporation
    Episcopale Catholique Romaine de la Baie James (The Roman Catholic Episcopal
    Corporation of James Bay), The Catholic Diocese of Moosonee, Soeurs Grises de
    Montreal/Grey Nuns of Montreal, Sisters of Charity (Grey Nuns) of Alberta, Les
    Soeurs de la Charitedes T.N.O., Hotel-Dieu de Nicolet, The Grey Nuns of
    Manitoba Inc.-Les Soeurs Grises du Manitoba Inc., La Corporation Episcopale
    Catholique Romaine de la Baie d'Hudson-The Roman Catholic Episcopal Corporation
    of Hudson's Bay, Missionary Oblates -Grandin Province, Les Oblats de. Marie Immaculee
    du Manitoba, The Archiepiscopal Corporation of Regina, The Sisters of the Presentation,
    The Sisters of St. Joseph of Sault St. Marie, Sisters of Charity of Ottawa,
    Oblates of Mary Immaculate-St. Peter's Province, The Sisters of Saint Ann,
    Sisters of Instruction of the Child Jesus, The Benedictine Sisters of Mt. Angel
    Oregon, Les Peres Montfortains, The Roman Catholic Bishop of Kamloops
    Corporation Sole, The Bishop of Victoria, Corporation Sole, The Roman Catholic Bishop
    of Nelson, Corporation Sole, Order of the Oblates of Mary Immaculate in the
    Province of British Columbia, The Sisters of Charity of Providence of Western
    Canada, La Corporation Episcopale Catholique Romaine de Grouard, Roman Catholic
    Episcopal Corporation of Keewatin, La Corporation Archiepiscopale Catholique
    Romaine de St. Boniface, Les Missionnaires Oblates Sisters de St. Boniface-The
    Missionary Oblates Sisters of St. Boniface, Roman Catholic Archiepiscopal
    Corporation of Winnipeg, La Corporation Episcopale Catholique Romaine De Prince
    Albert, The Roman Catholic Bishop of Thunder Bay, Immaculate Heart Community of
    Los Angeles CA, Archdiocese of Vancouver -The Roman Catholic Archbishop of
    Vancouver, Roman Catholic Diocese of Whitehorse, The Catholic Episcopale
    Corporation of Mackenzie-Fort Smith, The Roman Catholic Episcopal Corporation of
    Prince Rupert, Episcopal Corporation of Saskatoon, Omilacombe Canada Inc. and
    Mt. Angel Abbey Inc.

Defendants/Respondents

(Responding
    Parties)

Joanna Birenbaum and Chris Grisdale, for the
    moving party National Centre for Truth and Reconciliation

Catherine A. Coughlan and Brent Thompson, for
    the responding party Attorney General of Canada

Stuart Wuttke and Jeremy Kolodziej, for
    the responding party the Assembly of First Nations

Catherine Boies Parker and John Trueman,
    for the responding party the Chief Adjudicator

Heard by videoconference: August 19, 2020

REASONS FOR DECISION

Background

[1]

This motion for a stay and various procedural directions arises in the
    context of the Indian Residential Schools Settlement Agreement (IRSSA).  The
    IRSSA resulted in the establishment of the Independent Assessment Process
    (IAP), under which former students who suffered physical, sexual, or
    psychological abuse could claim compensation. The IAP is administered by the
    Indian Residential Schools Adjudication Secretariat (the Secretariat) under
    the direction of the Chief Adjudicator.

[2]

Over 38,000 claims have been processed in the IAP and over $3 billion
    disbursed to former students. The Secretariat uses a database known as SADRE to
    case-manage the IAP claims. The IAP is coming to an end, and the Secretariat is
    to be closed and all claims adjudicated by March 31, 2021.

[3]

Before Perell J., the Eastern Administrative Judge, the Chief
    Adjudicator sought directions on the disposition of certain records (Non-Claim
    Records) held by the Secretariat. He made a proposal to archive most of them
    with the appellant, the National Centre for Truth and Reconciliation (NCTR).
[1]
This proposal was supported by the appellant and others, but not by the
    respondent, the Attorney General of Canada (Canada).

January 20, 2020 Order

[4]

On January 20, 2020, Perell J. rejected the proposal of the Chief
    Adjudicator and instead directed Canada to bring a Request for Directions
    (RFD) for court approval of a proposal for the archiving of copies of the
    Non-Claim Records with the appellant subject to certain delineated principles.
    Canadas RFD was to be made by June 30, 2020, but the date was then extended to
    September 30, 2020.

[5]

Justice Perell directed that Final Static Reports, also referred to as
    Static Reports,
[2]
were to be excluded from the Non-Claim Records to be archived. He concluded
    that Canadas submission that the generation of such reports would contravene
    the orders made in
Fontaine v. Canada (Attorney General)
, 2014 ONSC
    4585, affd 2016 ONCA 242, affd 2017 SCC 47 (the
In Rem
order) was well-founded. In addition, he wrote at paras. 220-21 of his reasons:

Further, having examined the model Static Reports, I observe
    that depending on what specific variables are selected, it might be possible by
    deductive reasoning to disclose the identities of IAP Claimants and this would
    arguably contravene the Orders made in
Canada (Attorney General) v.
    Fontaine
[Claims Records]. [D]epending on school size and temporal
    information, and variables based on age, sex, and acts of abuse by province, it
    might be possible to deduce confidential personal information from some of the
    proposed Static Reports. I am especially concerned that this may be possible in
    the case of some small and remote communities, leading to very unfortunate
    consequences.

He also concluded that the reliability and soundness of
    the models is doubtful without more information. Furthermore, truth and
    reconciliation would not be advanced. As such, he determined that Static
    Reports should not be archived with the appellant.

[6]

He also ordered that the Final Static Reports were not to be included in
    the IAP Final Report and Exhibits K and L of the October 25, 2019 Affidavit of
    Nicole Hansen, which contained drafts of Final Static Reports, were to remain
    under seal.

Past Orders

[7]

A number of orders have been made by the supervising courts in the
    course of the administration of the IRSSA. Three that are the subject matter of
    the stay motion have ordered that the SADRE database be destroyed. These courts
    have also issued various sunset orders governing the orderly closure of the IAP
    claims process, the expiry of the Chief Adjudicators mandate, and the wind-up
    of the Secretariat. The process to effect the destruction of SADRE could begin
    on December 31, 2020 and the Secretariat itself is to close on March 31, 2021.

Appeal

[8]

The appellant appealed
[3]
from the January 20, 2020 order and asked that: the Static Reports be included
    in the Adjudicators Final Report; the Chief Adjudicator be permitted to
    generate further aggregate Static Reports from the SADRE database, subject to
    the requirement that these Reports not identify any IAP claimants or alleged
    perpetrators; and the Static Reports could be archived with the appellant,
    Library and Archives Canada, or any other archive. In a nutshell, the
    appellants primary position on appeal is that invaluable information will be
    permanently lost if the Static Reports are destroyed.

[9]

On appeal, Canadas position is that the appellants request to halt the
    destruction of SADRE is non-justiciable, a collateral attack on the
In Rem
order already made, and amounts to re-litigation.

Relief Sought on Motion

[10]

Before
    me, the appellant seeks a stay pending appeal and the expiry of any further
    appeal period of the following: an August 6, 2014 order; para. 5(c) of a July
    4, 2018 order; and para. 12 of a May 29, 2020 order, insofar as these orders
    permit or require the destruction of the SADRE database prior to the determination
    of the appeal. It also seeks a stay pending appeal of the filing and hearing of
    Canadas RFD ordered in the January 20, 2020 order.

[11]

In
    addition, the appellant seeks certain procedural relief: an order expediting
    the hearing of the appeal; authorization to file a factum in excess of 30
    pages; and an order for directions on the appropriate scope of a sealing order
    for portions of its factum and Fresh as Amended Notice of Appeal.

[12]

On
    the request for a stay, Canada takes the position that it should be refused. It
    states that in
Fontaine
, the Supreme Court upheld the order that all
    who possess confidential information arising from the IAP must destroy it and
    must also refrain from any collateral use including for statistical and
    research purposes.

[13]

Canada
    argues that on this motion, the appellant is seeking to suspend the destruction
    aspect of the
Fontaine
order relating to the SADRE claims management
    database. SADRE, according to Canada, must be destroyed and its confidential
    data cannot be harvested for research or statistical purposes.

[14]

As
    for the RFD, Canada submits that there are no grounds to stop that work on the
    eve of the IAP sunset of March 31, 2021, and if the appellant is successful in
    its appeal, Canadas proposal may be modified.

Discussion

[15]

The
    test for a stay pending appeal is well established and is the same as the test
    for an interlocutory injunction, as described in
RJR-MacDonald Inc. v.
    Canada (Attorney General)
, [1994] 1 S.C.R. 311, at p. 334. The court is to
    consider: whether the appeal raises a serious question to be tried; whether an
    applicant would suffer irreparable harm in the absence of a stay; and the
    balance of convenience. The overarching consideration is whether the interests
    of justice call for a stay
: Zafar v. Saiyid
, 2017 ONCA 919, at para.
    18;
Longley v. Canada (Attorney General)
, 2007 ONCA 149, at paras.
    14-15.

[16]

In
    this case, I would decline to issue a stay. The parties all consent to an order
    for an expedited appeal and the orders that the appellant seeks to stay
    preserve the SADRE database until December 30, 2020. As a result, a stay is
    unnecessary if an expedite order is granted and the appeal is heard by the end
    of October or early November and decided before the end of the year. Indeed,
    the appellants counsel raised this possibility herself. There is also a real
    issue as to whether the stay relief sought by the appellant may be granted. Three
    of the orders sought to be stayed were never appealed, and the May 29, 2020
    order is from the British Columbia Supreme Court, albeit from the Western
    Administrative Judge. I am also not persuaded that Canadas RFD should be
    delayed, as it may be amended if that proves to be necessary as a result of the
    appeal decision.

[17]

In
    any event, in my view, it is reasonable to expedite the appellants appeal. The
    appellant is to perfect its appeal by August 31, 2020, and the respondents are
    to serve and file their materials by September 18, 2020. The appeal is
    scheduled to be heard on October 29, 2020. For oral argument, the appellant
    shall have 2 hours, Canada 1 hour, the Chief Administrator 15 minutes, and the
    Assembly of First Nations 25 minutes.

[18]

As
    for the appellants request to file a factum longer than 30 pages, one should
    be mindful that a longer factum may not be as effective as a focused, succinct
    factum. Nonetheless, the appellant is authorized to file a factum not to exceed
    53 pages in length.

[19]

The
    appellant also seeks directions on the appropriate scope of a sealing order
    with respect to certain yellow highlighted paragraphs in its proposed factum
    and in paragraph 5(a)(i) of its Fresh as Amended Notice of Appeal. In essence,
    it asks for guidance on compliance with the sealing order granted by Perell J.
    It agrees that all the red highlighted portions should be redacted.

[20]

In
    the order under appeal, at para. 8, Perell J. sealed two exhibits, which
    contained drafts of the Final Static Reports:

Exhibits K and L of the Affidavit of Nicole Hansen, affirmed
    October 25, 2019, which contain drafts of the Final Static Reports, shall
    remain under seal, but the body of the Affidavit and Exhibits A through J may
    be made available in the court file.

[21]

In
    supplementary reasons concerning the settling of the order (2020 ONSC 2107), at
    para. 22, Perell J. explained the content of the sealed exhibits:

The exhibits in question contain drafts of the final versions
    of what were described at the hearing of the RFD and in the Reasons as Static
    Reports. Due to concerns that the Static Reports could be construed as
    containing what was termed IAP Personal Information in the
In Rem
Order, the Chief Adjudicators counsel filed the Hansen affidavit with the
    court registry on a sealed basis pending further direction from the court, and
    provided it to other RFD hearing participants counsel on an undertaking to
    keep it confidential. In the Reasons, I directed that IAP Personal Information
    is to be excluded from the Non-Claim Records Collection to be assembled by
    Libraries and Archives Canada and that if there is any risk that a record could
    reveal IAP Personal Information, copies of the record shall be excluded from
    the Non-Claim Records Collection. [Footnotes omitted.]

[22]

As
    mentioned, the
In Rem
Order referred to in the reasons is Perell
    J.s order of August 6, 2014, pertaining to documents produced and prepared for
    the resolution of claims made in the IAP. The
In Rem
Order, at para. 1
    provides in part:

lAP Documents and lAP Personal Information are private and
    confidential and may not be used or disclosed by anyone for any purpose other
    than resolving IAP Claims and paying compensation, for the limited purposes of
    prosecuting criminal or child protection or lawyer regulation proceedings, or
    as permitted by this Order and any other Orders made by the Supervising Courts
    in the course of implementation of the Settlement Agreement.

[23]

IAP Personal Information is defined as
Personal Information about a Claimant, alleged perpetrator or other
    affected individual in respect of an IAP Claim that is obtained through the
    administration of an IAP Claim, and includes the fact that an identifiable
    individual is a Claimant, alleged perpetrator or other affected individual in
    respect of an IAP Claim. Personal Information is in turn defined as
    information that identifies an individual or that, alone or in combination
    with other available information, could permit or lead to the identification of
    an individual.

[24]

I
    have reviewed the yellow highlighted paragraphs in the appellants proposed
    factum and paragraph 5(a)(i) of the Fresh as Amended Notice of Appeal that are
    in issue. With the exception of the highlighted portions of paragraphs 64 and
    65, which expressly reference Exhibit K to the Hanson Affidavit that Perell J. had
    ordered sealed, and the last sentence of paragraph 90 in the proposed factum, I
    am unable to identify any problem with the remainder of the yellow highlighted
    provisions. The questioned statements appear to be generic in nature. As
    mentioned, the appellant proposes to redact those portions of the proposed
    factum highlighted in red.

Disposition

[25]

In summary: (i) the motion for a stay pending appeal is dismissed;
    (ii) the appeal is ordered expedited; (iii) the appellant is to perfect its
    appeal by August 31, 2020; (iv) Canada and the other respondents are to file
    their materials by September 18, 2020; (v) the appellant may file a factum up
    to 53 pages in length; (vi) directions on the scope of the sealing order
    granted by Perell J. permit the appellant to include paragraph 5(a)(i) of the
    Fresh as Amended Notice of Appeal and all yellow highlights contained in the
    proposed factum with the exception of those in paragraphs 64 and 65 and the
    last sentence of paragraph 90 ; and (vii) there shall be no order for costs of
    this motion.

S.E. Pepall J.A.

[1]

Its mandate under the IRSSA is to archive and store records
    collected by the Truth and Reconciliation Commission and other records relating
    to what were known as Indian Residential Schools.

[2]
Final Static Reports, or Static Reports, are new reports generated
    from the SADRE database used by the Secretariat and reflect final process and
    outcome data of the 38,000 IAP claims administered under the IAP. Static
    Reports include tables that represent a fixed extract from SADRE at the end of
    the IAP.

[3]

The appellant has since filed a Fresh as Amended
    Notice of Appeal.