COURT N0.: Ottawa, East Region 14-30299 DATE: 201407. 17 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN AND MICHAEL DENNIS DUFFY Before Justice Charles H. Vaillancourt Heard on June 11 and 12, 2015 Reasons for Ruling released to counsel on November 13, 2015 Reasons for Ruling released in com?: on November 18, 2015 Maxime Faille and Guy Regimbald .. counsel for the SenateiRespondent Peter Doody and Natalia Rodriquez .. counsel for the accused Michael Dennis Duffy/Applicant Peter Jacobson and Tae Mee Park and Andrew W. MacDonald counsel for the Interveners, The Globe and Mail Inc., CTV, A Division of Bell Media Inc., Postmedia Network Inc., and Canadian Jour- nalists For Free Expression VAILLANCOURT .: - RULING ON AN APPLICATION ON BEHALF OF SENATOR DUFFY FORAN ORDER REQUIRING CHARLES ROBERT, TI-IE CLERK OF THE SENATE, TO PRODUCE CER- TAIN DOCUMENTS, NAMELY, (A) THE INTERNAL REPORT REFERRED TO BY JILL ANNE JOSEPH IN HER STATENIENT OF 2013-09-18 JOSEPH AT PAGE 7, LINE 18 AS LITTLE REPOR (B) THE AUDIT REFERRED TO IN THE STATENIENT OF GARY DATED 2013?09-18 (THE STATENIENT) AT PAGE 7, LINE 1; (C) THE ORIGINAL AUDIT REFERRED TO ON PAGE 35, LINE 23 OF THE (D) THE REPORT REFERRED TO AT PAGE 36, LINE 18 OF THE m3w There are few issues as important to our constitutional equilibrium as the rela? tionship between the legislature and the other branches of the State on which the Constitution has conferred powers, namely the executive and the courts. It is a wise principle that the courts and Parliament strive to respect each oth? er ?s role in the conduct of public affairs. Parliament, for its part, refrains from commenting on matters before the courts under the sabjudice rule. The courts, for their part, are careful not to interfere with the workings of Parliament. On behalf of the Senate, "Mr. Faille notes that the aforementioned constitutional equilibrium and respect for the role of each branch of government requires the adherence to the principle of parliamentary privilege. [10] I. P. Maingot in his text, Parliamentary Privilege in Canada, ed. (Montreal: McGill?Queen?s Press, 1997) at p. 183 observes that Canadian and other Commonwealth courts have consistently held that parliamentary privilege includes ?[t]he right to control publication of its debates and proceedings and those of its committees by prohibiting their publication.? [11] It is also submitted that parliamentary privilege applies to evidence presented in committee. See: Gagliano v. Canada 2005 PC 576, [2005] 3 F.C.R. 555; Lavigne v. Ontario (Attorney General), 91 OR. (3d) 728 [12] Parliament may and does deliberate in camera and such a decision is protected by privilege and is not subject to review or reversal by the judicial or executive branches of government. See: Lavigne, supra. [13] Mr. Faille submits that the aforementioned privileges have been repeatedly and au? thoritatively established in the case law and that they are enshrined in both the constitutional and statutory law. He also takes the position that ?necessity? of such privilege need not be proven See: Vaid, supra, and that in any event there is ample evidence to address the issue of ?necessity?. [14] Mr. Faille concludes that the Application before this court must fail and that the Lavigne case is a Complete answer to the issue at bar. [15] In Lavigne, supra, Senator Lavigne was charged under the Criminal Code for of? fences involving the improper use of Senate resources. He attempted to compel the produc- tion of evidence presented at an in camera hearing of the Subcommittee of the Standing Committee on Internal, Budgets and Administration. [16] At paragraph 48 of Lavigne, supra, the court concluded that: My role is simply to make a ?nding as to whether or not the claimed parlia? mentary privilege exists. If I find there is a parliamentary privilege, as I do in was committed to transparency and accountability about allowances and expenses. [22] However, counsel observes that Ms. Joseph?s internal audit report involving Sena- tor Duffy has ?never seen the light of day? and that the Applicant herein has been denied ac? cess to this material based on the Senate?s claim of parliamentary privilege. [23] Mr. Doody argues that no category of parliamentary privilege allows the Senate to keep the report in question secret since it does not go to the Senate ?3 core constitutional du? ties of legislating and holding the government to account. Counsel further contends that even if there was a category of parliamentary privilege in play, the Senate has waived such privi? lege both expressly and impliedly. [24] Counsel for Senator Duffy stresses that Ms. Joseph?s ?little report? should be pro- vided to Senator Duffy to assist in his defence based on the principle of fundamental fair? ness. [25] I have granted the media status as Interveners in this Application. [26] The Interveners? focus in this Application is on the question of the existence, scope and purpose of parliamentary privileges. [27] Counsel for the Inte'rveners seeks to advance the argument that the scope of any parliamentary privilege, including that asserted by the Senate in the case at bar, must be de? lineated in a manner that strictly re?ects the core legislative and deliberative functions of legislators, as representatives of and holding duties to the broader public. In the Interveners? submission, this exercise must take into account the importance of freedom of expression and openness, and the public interest in and right to transparent and accountable public insti- tutions in a constitutional democracy. [28] The Interveners further submit that when the court is determining the issue of the Senate?s claim of privilege, any analysis should include and re?ect the evolution of modern values and expectations of Canadians. [29] Mr. Faille, on behalf of the Senate, is rather dismissive of the Interveners? position. He maintains that contrary to what the Interveners? view of what the law ought to be, the law is clear as to what parliamentaryprivilege is and that parliamentary privilege applies in this case. [30] Mr. aille states that the Charter may not be invoked to defeat parliamentary privi? lege: privilege is enshrined in the constitution, and one part of the constitution may not abro? gate another. See: Reference re Bill 30, An Act to Amend the Education Act (Ont. [1987] S.C.R. 1148; New Brunswick Broadcasting, supra, at pp. 373 and 390. [31] Mr. Faille concedes that the Supreme Court has stated that the Charter may be in- voked in the event of a ?con?ict? between the privilege and the Charter arising from an am? biguity as to the existence or scope of the privilege. However, here, as in the case of New Brunswick Broadcasting, there is no ambiguity, and therefore no ?con?ict? between the priv? sented the document in question to the Committee in the course of its proceedings. [40] In due course, Senator Duffy was suspended by the Senate. [41] Senator Duffy was subsequently charged on July 17, 2014 with multiple counts of fraud and breach of trust under the Criminal Code ofCanada. [42] As a result of being charged, Senator Duffy wrote to Gary O?Brien, then Clerk of the Senate, on December 3, 2014 requesting a number of documents including the subject document in this application. [43] The subject document was not provided and on March 16, 2015, Mr. aille, counsel for the Senate, wrote to Senator Duffy?s lawyer, Mr. Donald Bayne, and advised him that the document in question would not be provided, ?as [it] was subject to the constitutionally- protected law of parliamentary privilege.? [44] Subsequently, a subpoena to a witness, namely, Charles Robert, Clerk of the Sen- ate, dated May 1, 2015 was served on May 4, 2015 requesting the subject document. [45] Attached to the aforementioned subpoena, were transcripts from the police state- ments provided by Jill Anne Pickard?Joseph (Joseph) and then, Clerk of the Senate, Gary O?Brien. [46] Ms. Joseph has had various roles while employed by the Senate over the years. [47] Ms. Joseph, in her capacity as Director of Internal Audit and Strategic Flaming of the Senate, was eventually tasked with preparing a draft report with respect to Senator Duffy [48] Ms. Joseph indicated that her report and ?little arguments didn?t go very far? when she presented them to the Audit Subcommittee. Furthermore, Ms. Joseph made it clear that her ?little report? was not met with favour. [49] When questioned by the RCMP. on September 18, 2013, Ms. Joseph further opined that there was more concern about managing the report as opposedrto addressing the concerns and suggestions contained therein. [50] Mr. O?Brien advised the R.C.M.P. in his interview with them, that although he sup- ported Ms. Joseph?s internal audit study, it was controversial. Mr. O?Brien stated that Ms. o- seph?s report/analysis resulted in great controversy between himself and the Steering Com- mittee. lVlr. O?Brien also noted that there seemed to be a concern that this internal audit re? port would become public despite the fact that it was never the intention of the administra- tion to make it public. [51] On behalf of the Applicant, Senator Duffy, Mr. Doody outlines three areas to bol- ster his position that privilege over Ms. Joseph?s audit report involving the expense accounts of Senators is not necessary to the Senate?s core constitutional function and that such docu- r_9_a 4. Minutes of Proceedings of the Internal Economy Committee meeting of May 28, 2013. It is noted that some of these documents have never been made public, namely numbers 1 and 2, therefore we would ask that they be kept con?dential unless required by law. Also, it is understood that the transmission of these docu? ments should not be construed as a waiver on the Senate?s part of its parlia? mentary privilege. The documents numbered 1 and 2 have been entered as Exhibits 1 and 2 re? spectively in these proceedings and item number 3 was provided to Senator Duffy as part of the Crown?s disclosure. (3) The Senate failed to claim privilege by: Complying with a Production Order under s. 487.012 of the Criminal Code dated June 26, 2013 as evidenCed by Ms. Pichard-Joseph?s (Ms. Jo? seph?s) af?davit dated July 11, 2013 wherein she swore that the following items were provided: (1) Copies of the four documents submitted to the Senate by Senator Mike Duffy, as supporting indicators of where his primary residence is located, con- sisting of: a driver ?3 licence, provincial health card, information ??om personal income tax return providing provincial tax information, and a signed statement of where he voted. (2) Copies of all drafts of the Twenty~Second Report of the Senate of Canada?s Standing Committee on Internal Economy, Budgets and Administration. Some information about JillAnne oseph?s Internal Audit Report was pro- vided to the RCMP. during interviews by the police in the presence of enate counsel. Both Ms. Joseph and Mr. O?Brien gave some information about Ms. Joseph?s internal audit report or ?her little report? when they were interviewed by the police and the issue of parliamentary privilege was not raised. (4) Mr. Doody points out that the Senate picks and chooses which documents they claim parliamentary privilege. More particularly, he highlights that Senator Duffy?s letter speci?cally request~ ing particulars of Ms. Joseph?s internal audit report and the subsequent de- fence subpoena for this material was met with the claim of parliamentary priv? ilege. (5) Lastly, counsel for Senator Duffy relies on the fact that no evidence has been ?led by the Senate to establish the category of privilege it claims and that in section 18 of the said Act. The provincial legislatures retain inherent privilege over those powers which are necessary for them to function as legislative bodies, Section 18 of the Con? stitution Act, 1867 conveys on the Senate and House of Commons (but not the legislatures) the power to legislate their own privileges by statute, as follows: 18. The privileges, immunities and powers to be held, enjoyed and exercised by the Senate and House of Commons, and by the members thereof respective? ly, shall be as such as are from time to time defined by an Act of Parliament of Canada, but so that any Act of the Parliament of Canada, defining such privi- leges, 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. [60] This provision bestows on the Parliament of Canada the power to make laws de- termining the extent of the privileges, immunities and the powers of the Senate and of the House of Commons as well as on its respective members. This legislative power is plenary, subject only to the limitation that Parliament cannot confer any privileges, immunities, and powers exceeding those held by the House of Parliament of the United Kingdom in 1867. However, these privileges must be able to evolve and to ?adapt to changing circumstances?. See: Canada (House of Commons) v. Vaz'd, supra, at para. 39 and Gagltano v. Canada, supra, at para. 32. [61] The Parliament of Canada, pursuant to s. 18 of the Constitution Act, 1867, enacted sections 4 and 5 of the Parliament/4 ct of Canada Act, R.S .C., 1985, c. P- providing that the Senate and the House of Commons, as well as their members, enjoy and exercise the like privileges, immunities and powers which were held, enjoyed and exercised by the House of Commons, U.K., in 1867, as well as such other privileges, immunities and powers de?ned by the Canadian Parliament, not exceeding those above, and that such privileges, immunities and powers are part of the general and public law of Canada to be taken notice of udicially. [62] Binnie J. explained in Vatd that: The main body of the privileges of our Parliament are therefore ?legislated privileges?, and according to s. 4 of the Parliament of CanadaAct must be as? certained by reference to the law and customs of the UK. House of Commons which are themselves composed of both legislated (including the Bill of Rights, 1689) and inherent privileges. Nevertheless, 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 the privilege at Westminster is authoritatively estab- lished (either by British or Canadian precedent), it ought to be accepted by a Canadian court without the need for further inquiry into its necessity. See: [67] In this regard, the Senate asserts the following categories of privilege as relevant to the determination of this matter: freedom of speech; (ii) exclusive cognizance of and control by the Houses of Parliament over ?debates or proceedings in Parliamen control by the Houses of Parliament over their internal affairs; (iv) disciplinary authority over members. See: Lavigne v. Ontario (Attorney General), supra, at para.23. [68] Each of these categories has been authoritatively established in relation to Parlia? ment. See Canada (House of Commons) v. Void, supra: cited inLavigne v. Ontario (Attorney General), supra, at para. 23. [69] The scope of these authoritative categories of privilege have been held to include: The right to hold Senate proceedings in camera; Control over documents in its possession, including ?the right to control publi- cation of its debates and proceedings and those of its committees by prohibiting their publication?; and The protection of members, of?cers and witnesses from giving evidence about a parliamentary proceeding and being subject to cross?examination in regard to ev? idence given in Parliament. [70] ?Freedom of speech? includes immunity of members as well as witnesses in delib? erations from being subjected to cross-examination in a court of law in relation to statements or evidence presented before a Parliamentary committee or subcommittee. As stated inPreb- ble, supra, at p. 333, ?the courts will not allow any challenge to what is said or done in Par- liament [I]t would be a breach of privilege to allow what is said in Parliament to be the subject matter of investigation or submission.? [71] The Senate also has exclusive jurisdiction over its debates, including to publish its debates (or to decline to do so), see: New Brunswick Broadcasting Co. v. Nova Scotia (Speaker ofthe House ofAssemey), supra, at p.385, to release any documents or reports (or not) to the public, the power to exclude strangers ?rom the proceedings (including the deci? sion to proceed in camera), see: New BrunswickBroadcasting Co. v. Nova Scoria (Speaker of the House ofAssemey), supra, at p. 388, and disciplinaly authority over members, see: Cari? ada (House of Commons) v. Void, supra, para. 29 (10). [72] Counsel for the Senate contends that since the disclosure in this case engages each of the aforementioned categories and falls within the Senate ?s scope, that the Application be fore the court should be dismissed. solely to the House as well as a risk of contradictory decisions on these ques? tions. The privilege pertaining to freedom of speech and the privilege allowing the respondent to conduct an inquiry are constitutional. The Supreme Court of Canada has upheld the constitutional status of the parliamentary privileges that have historically been considered necessary. Once a court finds that it is a question that ?falls within this necessary sphere of matters? without which the dignity and ef?ciency of the Assembly cannot be upheld, Parliament?s exclu? sive jurisdiction over it must be recognized. The privilege pertaining to freedom of speech extends to testimony given be- fore a committee of the respondent and it should not be lifted other than through legislation explicitly to that effect. [77] Justice Tremblay further states at para. 72 in Gagliano, supra, that: In my opinion, the power to preclude cross-examination of witnesses using ev- idence obtained in previous proceedings of Parliament falls within the scope of parliamentary privilege because it is necessary to the functioning of Parlia? ment. It is necessary at three levels: to encourage witnesses to speak openly before the parliamentary committee, to allow the committee to exercise its in? vestigative function and, in a more secondary way, to avoid contradictory ?nd- ings of fact. [78] In Canada (Deputy Commissioner; Royal Canadian Mounted Police) v. Canada (Commissioner; Royal Canadian Mounted Police) (E C. the Federal Court wrote at para. 70 that: Parliamentary privilege does not extend so far as to preclude all other enti- ties from concurrently investigating matters which are also before the House. Rather it precludes other entities from holding Members of Parliament or wit- nesses before committees liable for statements made in the discharge of their functions in the House. Control over ?debates and proceedings in Parliament?: parliamentary privilege pro? tects the right of the Senate to deliberate in camera [79] It is authoritatively recognized that Parliament has the ?right to control and to pro- hibit the publication of its debates or proceedings? See: Gagliano v. Canada, supra, at para. 72 arising from its authority ?to exclude strangers from its proceedings and to debate behind closed doors.? See: (supra) LLP. Maingot, Parliamentary Privilege in Canada, 2d ed. at pp. 40-41 . [80] In common with the other two branches of government, Parliament may, and fre? quently does, deliberate in camera. I minw [90] Parliament?s right to regulate its own affairs and procedures free from interference includes: The right to enforce discipline on Members; The right to deliberate and examine witnesses, and to do so in camera; The right to control publication of its debates and proceedings and those of its committees by prohibiting their publication. See: 1P. Maingot, Parliamen? tary Privilege in Canada, 2? ed., szipra. [91] The aforementioned privileges are all engaged in the case at bar. To the extent that the internal document relates to and arises from the exercise of discipline over a member, it is subject to privilege and is within the exclusive control of the Senate. The document was prepared and tendered in the course of a committee proceeding, which was held in camera. Finally, Parliament has a clear and acknowledged right to publish or decline to publish de- bates and proceedings and those of its committees. Necessity need not be proven in regard to established categories of privilege. Even if one were to find that an established category or categories of privilege have not been established, the Senate?s claim for parliamentary privilege meets the necessity test in this case. [92] Mr. Faille?s position is that even if the necessity test must be applied, the privilege claimed is justi?ed to enable the Senate to perform its functions. [93] Counsel for the Applicant and Interveners contend that protection of the report sought is ?not necessary to the Senate?s core constitutional function? as it is ?administrative, not legislative.? [94] Counsel for the Senate is of the view that the aforementioned point of view is too narrow and ignores the broader constitutional role, authorities and functions of Parliament. In addition to the Senate ?8 legislative role, other functions that they are involved in include de- liberations, holding government to account, conducting studies and preparing reports, disci? pl ining members, determining qualification of members, governing and managing its internal affairs. These authorities are set out in the Parl iamem? of Canada Act and constitutional con- vention. [95] Counsel for the Senate submits that necessity of the asserted parliamentary privi- lege must be assessed against all these functions and not merely the act of making laws. [96] In this regard, parliamentary privilege is de?ned in terms of what is necessary to enable Parliament and its members to properly and effectively discharge all of their constitu? tional functions. The examination of the necessity test is closely connected to the concept of autonomy, which the House must enjoy in the exercise of its prerogatives. As stated in Vaz'd, supra, at paragraph 46: _19_ Post, [2010] S.C.R. 477. [102] Similarly, Parliament is not alone among the branches of government in maintain? ing a protective sphere of private deliberation. Both thejudiciary and the executive similarly maintain in camera privileges. [103] In Canadian Council ofChristian Charities v. Canada ofFinance), 1999 [1999] 4 F.C. 245, No. 771 (T.D.), at para. 31, the Federal Court held: It would be an intolerable burden to force ministers and their advisors to dis? close to public scrutiny the internal evolution of the policies ultimately adopt? ed. Disclosure of such material would often reveal that the policy?making pro- cess included false starts, blind alleys, wrong turns, changes of mind, the solic? itation and rejection of advice, and the re?evaluation of priorities and the re? weighing of the relative importance of the relevant factors as a problem is studied more closely. In the hands of ournalists or political opponents this is a combustible material liable to fuel a fire that could quickly destroy govern? mental credibility and effectiveness. [104] In Mackeigan v. Hickman, [1989] 2 S.C.R. 796, at pp. 830-31, The judge ?3 right to refuse to answer to the executive or legislative branches of government or their appointees as to how and why the judge arrived at a par- ticular judicial conclusion is essential to the personal independence of the judge, one of the two main aspects of judicial independence: Vaiente v. The Queen, supra; Beauregard v. Canada To entertain the demand that a judge testify before a civil body, an emanation of the legislature or executiveshe made his or her decision would be to strike at the most sacrosanct core of judicial independence. [105] Notwithstanding the assertions of the Applicant herein, the question of necessity is not a matter of evidence. Although it would have been helpful, ultimately I agree with Mr. Faille that the lack of an af?davit is of no consequence here. Whether an of?cer or Member of Parliament states that a privilege is necessary does not make it so and is not binding on the court. ?Necessity? is a matter of legal argument, not an evidentiary contest. The Applicability of the case of R. v. Chaytor and Others, [2010] UKSC 52 [106] The Applicant relies on the UK Supreme Court case of Chaytor and Others, (supra) and submits that parliamentary privilege does not apply to claims for allowances and ex- penses. Furthermore, the Applicant submits that the administrative process to administer those claims for allowances and expenses are not ?proceedings in Parliament? as understood under article 9 of the Bill ofRights, 1689. [107] Counsel for the Senate takes the position that this case has no bearing on the instant matter and does not assist the position of the Applicant. In Chaytor, the Members of Parlia- _21_ [111] In this case, the Applicant is not seeking the protection of parliamentary privilege to obtain a stay, but rather he is seeking to obtain a document produced by a witness before a subcommittee of the Senate. [112] It is also of signi?cant that, in the United Kingdom, Parliament elected to establish an arm?s?length body to administer claims in 2009, in the form of the Independent Parlia? mentary Standards Authority, outside the control of Parliament. [113] Contrary to the assertion of the Applicant, the Senate has not followed this model. [114] Sections 19.1 through 19.9 ofthe ParliamenrAct ofCanada, R.S.C., 1985, c. P?l, address the Internal Administration of the Senate. [115] Sections 191(1) and 19.1(4) read as follows: 19.1(1) In this section and sections 19.2 to 19.9.?Committee? means the Standing Senate Committee on Economy, Budgets and Administration estab? lished by the Senate under its rules. 19104) In exercising its functions and powers under this Act, the Committee is subject to the rules, directions and control of the Senate. The fact that certain documents were provided, or are public, is irrelevant. [116] Counsel for the Senate takes issue with any suggestion by the Applicant that par- liamentary privilege should not be found to exist with respect to the Jill Anne Joseph Audit Report because a variety of other Senate documents are public and/or have been provided to the Applicant or the Crown. The law is de?nitive in this regard: unlike other forms of privi~ lege, the fact that a document is public or publically available, has no bearing on whether parliamentary privilege attaches to it. See: GagZiano, supra. [117] The Senate is allowed to control the publication (or not) of its debates, see: New Brunswick Broadcasting Co. v. Nova Scotz'a (Speaker ofthe ouse ofAssemey), supra, at p. 385, in Hansard or on a website, and make reports public. The publication or production of a. document does not negate parliamentary privilege. [118] In Gaglz'ano, supra, for instance, the testimony that was sought to be used for cross-examination of a witness was fully public; the testimony at issue had been open to the public and broadcast on television. This did not have the effect of unhinging the testimony from the moorings of privilege. [119] Similarly, it is of no consequence that certain documents, referenced by the Appli- cant, were provided by the Senate to the defence or to the Crown. Mr. Faille concedes that nearly all the documents referenced in the Applicant?s factum are not subject to parliamen- tary privilege and in particular expense claims and like documents. [120] However, other documents such as Committee reports are covered by parliamen- [128] Counsel for the Senate stresses that at no time did the Senate or any of its of?cials waive privilege by any clear and unambiguous conduct. [129] The Speaker of the House, The Honourable Leo Housakos, made a public state? ment to CTV on May 10, 2015, in which he emphasized the Senate?s desire to modernize the institution and to be transparent and accountable. [130] It is clear from the transcript of the Speaker ?s statement that he is not making refer- ence to the Joseph Internal Audit Report which is the subject of this Application. In fact, the Speaker is addressing an entirely different audit, namely, the Auditor General ?s Report. [131] In any event, the "aforementioned interview is hearsay and inadmissible, and con? tains no waiver of privilege, express or otherwise. [132] Doody suggests that when the internal audit report and the later draft report on Senator Duffy were freely discussed, in the presence of the Senate?s counsel, with the RCMP, any privilege in the reports was waived. [133] Mr. aille stresses that the mere referral of the Senate?s concerns to the RCMP does not amount to a waiver of privilege in relation to Ms. Joseph?s document nor any other document. He harkens back to paragraph 70, Canada (Deputy Commissioner; Royal Cana- dian Mounted Police) v. Canada (Commissioner; Royal Canadian Mounted Police) (EC), wherein the Court wrote: Parliamentary privilege does not extend so far as to preclude all other entities from concurrently investigating matters which are also before the House. Ra~ ther it precludes other entities from holding Members of Parliament or wit? nesses before committees liable for statements made in the discharge of their functions in the House. Therefore, provided the RCMP is able to conduct its investigation without resorting to the applicant?s testimony before the House, parliamentary privilege does not apply and the RCMP is free to do as it pleases within the con?nes of the law and its constituent statute. [134] Mr. Doody refers to Master Beaudoin?s decision in Riddel! v. The Right Point [2007] OJ. No. 3943 at para. 61 wherein he writes: I would not go so far as to hold that the courts could never rule on a question of waiver where it has been expressly waived or the conduct is clear and un- ambiguous. [135] Mr. Doody relies on the following facts to support his position that the Senate has impliedly waived any privilege which may have existed in reports dealing with Senate ex- pense accounts and Senator Duffy?s expense accounts. He contends that the Senate has shown some expense accounts and allowed evidence to be freely given on the subject while wanting to keep secret the internal audit report which may be favourable to Senator Duffy. [136] Many reports dealing with claims for allowances and expenses in the Senate, and _25_ [144] I agree with Mr. Faille?s submission that the Lavigne decision, supra, is a complete answer to the issue at bar. [145] Furthermore, I adopt Mr. Faille?s submissions as they pertain to the necessity test. [146] I do not find that the Chayton supra, decision advances the applicant?s cause in this matter. [147] For reasons as set out in paragraphs 116 12 1, whether privilege does or does not attach to one document, it is not determinative as to whether privilege attaches to the docu? ment before the court. [148] I ?nd that the Senate did not waive its privilege over the document generated by Ms. Joseph. [149] Accordingly, I find that parliamentary privilege applies to Ms. Joseph?s Report. Interveners? Position and Response by the Respondent The Scope and Purpose of Parliamentary Privilege Overview [150] The Interveners submit that a closer examination of the purpose of parliamentary privilege will assist in determining the importance of the broader public interest to the evolv- ing analysis of parliamentary privilege in the 21St century. [151] Counsel for the Senate characterizes the lnterveners? argument as consisting in large measure of policy argument, unsupported by jurisprudence, that the asserted privileges are not necessary. He alternately casts the Interveners? position as one that recognizes the ex- istence of privilege but argues against the necessity of applying it to the present case. Mr. Faille contends that this approach is also contrary to established principle. [152] Mr. Jacobsen observes that given the time that has elapsed from the origins of par- liamentary privilege, it may very well be time to examine the contours of parliamentary priv- ilege and the necessity test used to delineate them with a view of ensuring that parliamentary privilege keep pace with and re?ect modern Canadian society and its values. [153] In January of 2015, the Subcommittee on Parliamentary Privilege of the Standing Committee on Rules, Procedures, and the Rights of Parliament published a paper entitled A Matter of Privilege A Discussion Paper on Canadian Privilege in the 21?" Century. At page 1 of this paper, the following passage from Colette Mireille Langlois, ?Parliamentary Privi- lege: A Rational Approach?, Journal of Parliamentary and Political Law, Vol. 6, March 2012, pp. 129?160 reads: While for decades the understanding of parliamentary privilege was reasona- bly uniform and standard throughout the British Commonwealth, the evolution of parliamentary democracy has impacted the development of the law of privi- enable the assembly and its members to do their work with dignity and effi- ciency. [160] The Interveners submit that ?proceedings in Parliamen and true legislative and deliberative functions, by de?nition, will (or should) be open and public. In contemporary Canadian society, Parliament is, as noted at page 79 of the 2015 Senate Subcommittee Dis? cussion Paper, ?the centre of public democratic life.? However, it is acknowledged by them that these public proceedings are privileged and protected by parliamentary immunity by vir- tue of the privilege of freedom of speech. - [161] Mi: acobsen however, points out that many purely administrative functions per- formed by administrative staff of a legislative body are likely not to be public and that the products of these functions may be outside of public view in the normal course of the Sen? ate?s business and they are not privileged and therefore are not beyond the reach of the courts. [162] Mr. Jacobsen contends that secrecy and con?dentiality are contrary to the entire purpose pf parliamentary privilege, especially in the 21St century. Proceedings in Parliament should be open and communicated to the public; the immunity afforded by the privilege of freedom of speech is met to ensure that this is the case. To support this contention, reference is made to the 2015 Senate Subcommittee Discussion Paper, supra, at page 6, quoting from the UK Joint Committee on Parliamentary Privilege, Parii'amem?ary Privilege - First Report Volume 1, 9 April 1999 at para. 341: Parliamentary freedom of Speech would beof little value if what is said inPar? liament by members, ministers and witnesses could not be freely communicat- ed outside Parliament. There is an important public interest in the public knowing what is being debated and done in Parliament. [163] Mr. Jacobsen states that there is a clear expectation on the part of Canadians that those who govern them will be transparent and accountable - especially in respect of their use of public funds and should not use parliamentary privilege to keep information about public institutions and public of?ceholders from the view of the public unless proof of ne- cessity is clearly and unambiguously made out. Exclusive Cognizance and InternalAffairs [164] Counsel for the Interveners next addresses the parliamentary privilege that grants legislative bodies special powers and rights of control over its proceedings. This powerw and the immunity from external review that runs with it is de?ned by the degree of autonomy necessary to ensure that the House?s legislative and deliberative functions can proceed in an ef?cient manner, unimpeded by external bodies. [165] Mr. acobsen contends that control or exclusive cognizance over the ?internal af- fairs? of a House of Parliament must also be de?ned according to the directness of the con? nection of those ?affairs? to the core legislative and deliberative function of the assembly. Reference to a general privilege over ?internal a?airs? returns us to the question of what m29_ ternal to the House,? the necessity test used to define the scope of the privilege claimed must take into account Charter rights and values, the rule of law, and the public interest in the transparency and accountability of our public institutions. Any articulation of the sphere of activity over which a claim of privilege is asserted must involve a balancing and reconciling of the relative importance of the rights, interests and expectations of the public, with the rela? tive necessity to the proper functioning of the legislative body of the powers and! or immuni? ties being asserted. [173] In Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876 at para. 69 McLachlin J. (as she then was) expanded on her analysis of the relationship between the Charter and parliamentary privilege in her judgment in New Brunswick Broadcasting, sa? pra, Because parliamentary privilege enjoys constitutional status it is not ?subject to? the Charter, as are ordinary laws. Both parliamentary privilege and the Charter constitute essential parts of the Constitution of Canada. Neither pre- vails over the other. While parliamentary privilege and immunity from im- proper judicial interference in parliamentary processes must be maintained, so must the fundamental democratic guarantees of the Charter. Where apparent conflicts between different constitutional principles arise, the proper approach is not to resolve the con?ict by subordinating one principle to the other, but ra- ther to attempt to reconcile them. [174] Mr Jacobsen suggests that it follows from this purposive approach to reconciling Charter rights and values with parliamentary privilege both that Charter rights should be read as being consistent with established parliamentary privileges and that the scope of as- serted parliamentary privileges should be delineated in a way that is consistent with the guan- antees of the Charter. The courts may not interfere with the exercise of an established privi- lege including on grounds that the particular exercise is alleged to have infringed a Charter right but prevent abuses in the guise of privilege from trumping legitimate Charter interests, the court must inquire into the legitimacy of a claim of parliamentary privilege.? See: Harvey v. New Brunswick, supra at para. 71. This inquiry must take account of the con- stitutional guarantees and values entrenched in the Charter. [175] The Interveners submit that the following questions should be asked when deter- mining the necessity component in this case: How important is the disclosure of the class of documents being sought by Senator Duffy in his criminal trial and the public?s right to in- formation about the Senator?s expense claims and the oversight of those claims by the ad- ministration of the Senate of Canada? How necessary to the Senate?s ability to carry out its legislative and deliberative functions, and to ful?l its duties to the public, is the confidentiali? ty of internally prepared audit documents relating to Senator?s expense claims? Expense Claims and Audit Reports [17 6] Mr. Jacobsen states that [the question of parliamentary privilege is before the court in the context of criminal allegations relating to expenses claimed by and paid to Senator expenses. It is submitted on behalf of the defendants that in that event their claims would constitute proceedings in Parliament and be protected by privi- lege, and that the same was true of claims made to the Fees Of?ce as that of- fice was acting on behalf of the House in receiving and considering the claims forms. The answer is that the submission and consideration of allowances and expenses claims is essentially a matter of administration, properly to be per? formed by of?cials, and that it would be absurd for this exercise to be per? formed by a committee or by the House. [181] Mr. acobsen states that it may be that a court is precluded from ordering amend? ments to the rules pertaining to expense claims that have been adopted by the legislative as? sembly: the internal process by which the rules are designed and enacted may be a privileged I sphere of activity. But how legislators and administrative staff conduct business themselves under the rules in place is not covered by parliamentary privilege. Such conduct does not constitute a ?proceeding in Parliamen and it is not a matter within the exclusive cognizance of Parliament because it is not sufficiently linked to the legislative body?s legislative and de? liberative functions. [182] Support for this position is found in Chaytor, supra, at para. 92: If an applicant sought to attack by judicial review the scheme under which al- lowances and expenses are paid the court would no doubt refuse the applica~ tion on the ground that this was a matter for the House. Examination of the manner in which the scheme is being implemented is not, however, a matter exclusively for Parliament. Senate of Canada?s Assertion of Privilege [183] Counsel for the Interveners acknowledges that parliamentary privilege protects the legislative body in regard to any decision or proceeding forming part of the core of a legisla- tive body?s function in our society. Likewise, the privilege of freedom of speech prohibits the impeachment or questioning of speech made in proceedings in Parliament. [184] Mr. Jacobsen contends that the question before the court is whether the Senate has met its onus to show that the disclosure of administrative staff-prepared audit reports relating to Senator ?s entitlement and claims to expenses is so inconsistent with its sovereignty as a legislative and deliberative assembly that it offends the constitutional separation of powers. [185] The separation of powers requires that the Senate and the court respect the legiti- mate sphere of activity of the other as expressed by McLachlin J. inNew Brunswick Broad? casting, supra, at 389: Our democratic government consists of several branches: The Crown, as rep- resented by the Governor General and the provincial counterparts of that of- ?ce; the legislative body; the executive; and the courts. It is fundamental to the working of government as a whole that all parts play their proper role. It is equally fundamental that no one of them OVer steps its bounds, that they show mentary privilege through the necessity test take into account the public?s interest in and right to transparent and accountable public institutions. Legislative bodies are not ?enclaves shielded from the ordinary law of the land? and courts must ensure that the scope of parlia- mentary privileges only includes the powers and immunities absolutely necessary for the ex- ecution of an assembly?s legislative and deliberative ?mctions. This analysis must give full appreciation to the rights, freedoms and expectations of individuals and the public that legis? lative bodies exist to serve. [195] Furthermore, it is submitted that while the Charter does not apply to the exercise of an established parliamentary privilege, Charter rights and values must inform the adjudica? tion of the scope of parliamentary privilege. Freedom of expression and freedom of the press, including the public?s right to information about government, are fundamental to Canada?s functioning as a free and democratic society. Counsel also notes that in the particular circum? stances of this assertion of parliamentary privilege, Senator Duffy obviously has certain other fundamental Charter rights to consider as well. [196] In addition, Mr. acobsen submits that in the 21St century it must be recognized that the original circumstances in which parliamentary privilege developed are in the past and are largely irrelevant to the analysis today. It is no longer the case that Parliamentary privileges are used to shield against intrusions of a meddling monarch. Instead, more often than not, the claim of privilege pits a legislative body against an individual and /or the public at large. [197] Mr. Jacobsen stresses that the proceedings in Parliament should be open and trans? parent. Parliamentary privilege exits to foster freedom of speech and openness. Parliament is at the centre of public democratic life. Modern Canadians expect that their elected (and, in the case of the Senate, appointed) representatives conduct their public duties in ?ill public view. They expect transparency and accountability from those who govern them. [198] Counsel for the Interveners concludes his very able submissions by directing the court?s attention to observations made by the current Clerk of the Senate, Charles Robert, on the subject of parliamentary privilege. [199] Mr. Robert reminds Canadian parliamentarians to carefully evaluate the e??ect that privilege might have on the rights and perception of the public. See: Charles Robert Vince MacNeil, ?Shield or Sword? Parliamentary Privilege, Charter Rights and he Rule ofLaw? (2007) 75 The Table, 17 at 37. [200] He has also argued that in the 21St century, the necessity test must take into account both Charter values, like freedom of expression and the right to due process, and the public?s expectation of accountability and transparency. See: Charles Robert David Taylor, ?Then andNow: Necessity, The Charter and Parliamentary Privilege in the Provincial Assemblies of Canada? (2012) 80 The Table 17 at 41-42. [201] Mr. acobsen, on behalf of the lnterveners, proposes that the words of Mr. Robert be heeded by courts and legislative assemblies across Canada. for it.? [208] Accordingly, notwithstanding the Interveners? view that it ought not to be so, the Senate may deliberate and receive evidence, including documents or reports, in camera. This . right which ?nds form in privileges recognized for all three branches of government is protected by established privilege, and is thereby enshrined in constitutional law. [209] The Interveners? argument that the privilege at issue is not necessary is, in any event, unpersuasive. While necessity need not be proven in the instant case, it is amply demonstrated. Critical to the proper functioning of all three branches of government is the authority to exclude strangers and to deliberate in private. In the instant case, the Senate ex? ercised this right, and it is not the proper role of the courts to either disregard or overturn that decision, nor to determine whether that right ought to be exercised in this particular case. The court does not have the authority to reverse ?the senators? decision to hold the hearings [in] private,? nor to ?make public what the Senate did not wish to make public.? See: Lavigne, supra, at para. 48. [210] Mr. Faille submits that ultimately, the Interveners? argument amounts to stating that the privileges at play here (such as the ability to hold a hearing in camera) should be dis? regarded despite having been authoritatively recognized, or that it should not be applied to the instant case. The Charter Aids in Interpretation Only in the Event of Ambiguity [211] The jurisprudence is also clear that the Charter may not be invoked to defeat par- liamentary privilege: privilege is enshrined in the constitution, and one part of the constitu- tion may not abrogate another. See: Reference re Bill 30, An Act to Amend the Education Act (Ont), [1987] S.C.R. 1148; New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House ofAssembly), [1993] S.C.R. at pp. 373 and 390. [212] Mr. Faille suggests that the Interveners mischaracterize the guidance of the Su- preme Court in this regard. He points out that the Supreme Court has stated that the Charter may be invoked in the event of a ?con?ict? between the privilege and the Charter arising from an ambiguity as to the existence or scope of the privilege. Mr. Faille states that in the case at bar, as in the case of New BrunswickBroadcasting, supra, there is no ambiguity, and therefore no ?con?ict? between the privileges and the Charter, and the Charter values can- not provide any limit to the to the Senate?s power to invoke them. See: Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876 at paras. 69, 71, 74. [213] Similarly, as held in Lavz'gne, supra, at paras. 56-59, and other cases, a Charter right such as the right to make full answer and defence cannot be used to displace parliamen- tary privilege. Neither Academic Commentary or Proposals for Reform Amend Parliamentary Privi? lege [214] Mr. Faille notes that academic commentary, investigations, policy analysis or rec? _37m themselves ?proceedings? as was argued, unsuccessfully, by certain Parliamentarians in Chaytor; supra. Mr. Faille submits that the document at issue before this court is not a claim or primary document of any kind but rather it constitutes a report or document presented to a subcommittee of the Senate in the course of that subcommittee?s in camera deliberations on a matter entirely within the Senate?s authority. The Court?s Position Regarding the Interveners? Submissions on Senate Privilege [220] I enjoyed reviewing the submissions and material tendered by Mr. Jacobsen on this Application. They attempt to persuade the court to take a more expansive approach to the is- sue of parliamentary privilege and to lift the veil of parliamentary privilege in order to allow the public-at-large the opportunity to access the internal workings of the democratic process. [221] Regrettably, from the Interveners? point of view, I concur with Mr. Faille?s submis- sions as set out in these reasons and I ?nd that Ms. Joseph?s Internal Audit Report meets the requirements of parliamentary privilege and that such privilege should not be lifted in this 0336. Released to Counsel November 13, 2015 Released in Court . November 18, 2015 Signed: ?Justice Charles H. Vaillancourt?