A-309-89
Attorney General of Canada, the Senate, the
Senate Standing Committee on Internal Economy,
Budgets and Administration, Her Majesty the
Queen (Appellants) (Cross-respondents)
v.
Southam Inc. and Charles Rusnell (Respondents)
(Cross- appellants)
INDEXED AS: SOUTHAM INC. V. CANADA (ATTORNEY GEN
ERAL) (C.A.)
Court of Appeal, Iacobucci C.J., Stone and
Decary JJ.A.—Ottawa, June 21 and August 23,
1990.
Federal Court jurisdiction — Trial Division — Appeal from
Trial Division decision Court having jurisdiction to entertain
action by newspaper publisher for declaration denial of access
to Senate Committee hearings violation of Charter — Neither
Charter nor Federal Court Act conferring jurisdiction
Requirements for jurisdiction set out in ITO case not met
Senate Committee not 'federal board, commission or other
tribunal" as powers not conferred by Act of Parliament but by
Constitution — Parliament of Canada Act not "law of Cana-
da" within meaning of s. 101 Constitution Act, 1867 — Under
s. 5 Parliament of Canada Act, powers of both Houses of
Parliament part of "general and public law of Canada".
Constitutional law — Charter of Rights — Enforcement
Federal Court without jurisdiction to entertain action for
declaration denial of access to Senate Committee hearings
contrary to Charter — S. 24(1) Charter not conferring on
courts jurisdiction beyond that already possessed.
The publisher of the Ottawa Citizen and one of its reporters
were denied access to hearings by the Senate Standing Com
mittee on Internal Economy, Budgets and Administration into
the alleged misuse of Senate funds and services by Senator
Hazen Argue with respect to the nomination of the latter's wife
as a candidate in a federal election. The respondents sought
declarations that their exclusion infringed the Charter right to
freedom of expression and contravened the Canadian Bill of
Rights. They further sought certiorari and injunctive relief.
In response to motions brought by the Law Clerk and
Parliamentary Counsel to the Senate and by the Attorney
General of Canada to strike out the Senate, the Senate Com
mittee and Her Majesty the Queen as defendants, the Trial
Judge held inter alia that the Federal Court had jurisdiction to
entertain the action. The principal issue for determination by
the Court of Appeal was as to whether the Federal Court Act
or the Charter confers jurisdiction on the Court to entertain
such litigation.
Held, the appeal should be allowed and the cross-appeal,
against the holding of Strayer J. that neither the Senate nor the
Senate Committee was an entity capable of being sued,
dismissed.
(1) Jurisdiction of the Federal Court under the Charter
Although subsection 24(1) of the Charter refers to a court of
competent jurisdiction where a remedy can be sought in case of
a Charter infringement, that provision and the Charter general
ly have not conferred on courts jurisdiction that they did not
already possess. As stated by the Supreme Court of Canada in
Mills v. The Queen, "The Charter has made no attempt to fix
or limit the jurisdiction .... It merely gives a right to apply in a
court which has jurisdiction."
(2) Jurisdiction of the Federal Court under the Federal Court
Act
The first condition set out in the ITO case to establish
jurisdiction in the Federal Court—statutory grant of jurisdic
tion by Parliament—was not met. The Trial Judge was wrong
in concluding that the Senate Committee could potentially
come within the definition of "federal board", commission or
other tribunal" on the ground that it is a "body or consists of
persons exercising or purporting to exercise jurisdiction or
powers conferred by or under an Act of Parliament", viz. the
Parliament of Canada Act. The words "conferred by or under
an Act of the Parliament of Canada" in section 2 of the
Federal Court Act mean that an Act of Parliament must be the
source of the powers which are being conferred. The Parlia
ment of Canada Act which elaborates upon the privileges,
immunities and powers of the Senate is the manifestation of the
powers of the Senate; it is not its source. The source of those
privileges, immunities and powers is to be found in the Consti
tution. Unlike federal boards, commissions or tribunals whose
powers are conferred by federal statutes, the powers of the
Senate are conferred directly by section 18 of the Constitution
Act, 1867. The Senate not coming within the definition of
"federal board, commission or tribunal", it follows that the
Trial Division does not have jurisdiction under section 18 of the
Federal Court Act.
Should this interpretation of section 18 of the Constitution
Act, 1867 be erroneous, the plain meaning of the words "feder-
al board, commission or tribunal" would still exclude any
reference to the Senate or its committees. The Senate consti
tutes an essential part of the process that gives birth to federal
boards, commissions or tribunals. As such, it cannot be con
sidered on the same level as those entities. Moreover, to treat
the Senate as a federal board, commission or tribunal would
annihilate the ordinary meaning of those terms.
Nor could it be accepted that in enacting the Federal Court
Act, Parliament intended to assign to the Federal Court a
supervisory judicial review jurisdiction over the Senate, the
House of Commons or their committees. The major purpose of
that aspect of the Act was to transfer the supervisory jurisdic
tion of federal boards and tribunals from the provincial supe
rior courts to the Federal Court and the language of sections 18
and 2 was chosen to effectuate that purpose.
Another argument based on sections 91 and 101 of the
Constitution Act, 1867 militated against the jurisdiction of the
Court. Section 101, which is the constitutional source of the
Federal Court, enables the Parliament of Canada to establish
courts "for the better administration of the laws of Canada",
that is "section 91 laws", according to Estey J. in the Law
Society of British Columbia decision. Since the law challenged
herein derives not from section 91 but from section 18 of the
Constitution Act, 1867, it follows that Parliament cannot, by
incorporating by reference into a federal statute powers already
conferred by the Constitution, allocate exclusive jurisdiction
over those powers to a federally created court.
Nor had the second and third conditions required by the ITO
case (that there be an existing body of federal law and that the
law on which the case is based must be a "law of Canada"
within the meaning of section 101 of the Constitution Act,
1867) been met. Although it may be said that the federal law
for purposes of the second test is the Parliament of Canada
Act, that Act is not a "law of Canada" within the meaning of
section 101 of the Constitution Act, 1867 for purposes of the
third condition. That interpretation is borne out by section 5 of
the Parliament of Canada Act which declares the privileges,
immunities and powers of both Houses of Parliament to be part
of the "general and public law of Canada". Such a declaration
is confirmation that those powers, privileges and immunities are
not "laws of Canada" within the meaning of section 101. This
is further evidenced by the French text of section 5, "droit
general et public du Canada", which is not equivalent to the
expression "des lois du Canada" used in the unofficial transla
tion of section 101. The Constitution of Canada is the most
important part of the general and public law of Canada and
section 5 underlines that parliamentary privileges are also part
of that law. Consequently, there is no "laws of Canada" within
the third condition of ITO and therefore no jurisdiction in the
Federal Court to entertain the action herein.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
An Act to define the privileges, immunities and powers
of the Senate and House of Commons, and to give
summary protection to persons employed in the publi
cation of Parliamentary Papers, S.C. 1868, c. 23.
Canadian Bill of Rights, R.S.C., 1985, Appendix III,
s. I (d),W.
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44], ss. 2(b), 24(1), 32(1 )(a), 33.
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as
am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule
to the Constitution Act, 1982, Item 1), preamble, ss.
17, 18 (repealed and reenacted by 38 & 39 Vict., c. 38
(U.K.), s. 1 [R.S.C., 1985, Appendix II, No. 13]), 91,
92(14), 101.
Federal Court Act, R.S.C., 1985, c. F-7, ss. 2 (as am. by
S.C. 1990, c. 8, s. 1 (not yet in force)), 18.
Federal Court Rules, C.R.C., c. 663, R. 419.
Parliament of Canada Act, R.S.C., 1985, c. P-1, ss. 4, 5.
Rules of the Senate of Canada, R. 73.
The Bill of Rights (1688), 1 Wm. III & Mary, 2nd Sess.,
c. 2 (Imp.), s. 9.
CASES JUDICIALLY CONSIDERED
APPLIED:
Mills v. The Queen, [1986] 1 S.C.R. 863; (1986), 29
D.L.R. (4th) 161; 26 C.C.C. (3d) 481; 52 C.R. (3d) 1; 67
N.R. 241; R. v. Morgentaler, Smoling and Scott (1984),
48 O.R. (2d) 519; 14 D.L.R. (4th) 184; 16 C.C.C. (3d) 1;
41 C.R. (3d) 262; 14 C.R.R. 107; 6 O.A.C. 53 (C.A.);
ITO—International Terminal Operators Ltd. v. Miida
Electronics Inc. et al., [1986] 1 S.C.R. 752; (1986), 28
D.L.R. (4th) 641; 34 B.L.R. 251; 68 N.R. 241; House of
Commons v. Canada Labour Relations Board, [1986] 2
F.C. 372; (1986), 27 D.L.R. (4th) 481; 86 C.L.L.C.
14,034; 66 N.R. 46 (C.A.); Attorney General of Canada
et al. v. Law Society of British Columbia et al., [1982] 2
S.C.R. 307; (1982), 137 D.L.R. (3d) 1; [1982] 5 W.W.R.
289; 37 B.C.L.R. 145; 19 B.L.R. 234; 66 C.P.R. (2d) 1;
43 N.R. 451.
REFERRED TO:
Re Resolution to amend the Constitution, [1981] 1
S.C.R. 753; (1981), 34 Nfld. & P.E.I.R. 1; 125 D.L.R.
(3d) 1; [1981] 6 W.W.R. 1; 95 A.P.R. 1; 11 Man. R.
(2d) 1; 39 N.R. 1; Kielley v. Carson (1842), 13 E.R. 225
(P.C.); Stockdale v. Hansard (1839), 48 Rev. Rep. 326
(Q.B.); Landers et al. v. Woodworth (1878), 2 S.C.R.
158; Valliere v. Corporation de la paroisse de Saint-
Henri de Lauzon (1905), 14 Rap. Jud. 16 (C.B. Roi);
Chamberlist v. Collins et al. (1962), 34 D.L.R. (2d) 414;
39 W.W.R. 65 (B.C.C.A.); Re Clark et al. and Attor-
ney-General of Canada (1977), 17 O.R. (2d) 593; 81
D.L.R. (3d) 33; 34 C.P.R. (2d) 91 (H.C.); Operation
Dismantle Inc. et al. v. The Queen et al., [1985] 1 S.C.R.
441; (1985), 18 D.L.R. (4th) 481; 12 Admin. L.R. 16; 13
C.R.R. 287; 59 N.R. 1; Reference Re Bill 30, An Act to
amend the Education Act (Ont.), [1987] 1 S.C.R. 1148;
(1987), 40 D.L.R. (4th) 18; 77 N.R. 241; 22 O.A.C. 321;
MacLean v. Nova Scotia (Attorney General) (1987), 76
N.S.R. (2d) 296; 35 D.L.R. (4th) 306; 189 A.P.R. 296;
27 C.R.R. 212 (S.C.).
AUTHORS CITED
Canada. House of Commons Debates, Vol. V, 2nd Sess.,
28th Parl., March 25, 1970, at pp. 5470-5471.
Dickson, R. G. B. "Keynote Address", in The Cambridge
Lectures 1985. Montreal: Editions Yvons Blais Inc.,
1985, at pp. 2-4.
Shorter Oxford English Dictionary, 3rd ed. Oxford: Cla-
rendon Press, 1974, "board", "commission", "tribu-
nal".
Tasse, R. "Application of the Canadian Charter of
Rights and Freedoms", in The Canadian Charter of
Rights and Freedoms, 2nd ed. Toronto: Carswell,
1989, at pp. 71-72.
COUNSEL:
W. Ian Binnie, Q.C. and David W. Hamer for
appellants (cross-respondents).
Richard G. Dearden, Alan D. Reid, Q.C. and
Neil R. Wilson for respondents (cross-appel
lants).
Edward R. Sojonky, Q.C. and Yvonne E.
Milosevic for the Attorney General of
Canada.
SOLICITORS:
McCarthy, Tetrault, Toronto, for appellants
(cross-respondents).
Gowling, Strathy & Henderson, Ottawa, for
respondents (cross-appellants).
Deputy Attorney General of Canada for the
Attorney General of Canada.
The following are the reasons for judgment
rendered in English by
IAcoBucci C.J.: This is an appeal by Mr. Ray-
mond L. du Plessis, Q.C., Law Clerk and Parlia
mentary Counsel to the Senate ("appellant"), in
relation to the named defendants ["appellants" in
the style of cause], the Senate and the Senate
Standing Committee on Internal Economy, Budg
ets and Administration ("Senate Committee"),
from an order of Mr. Justice Strayer, dated June
8, 1989 [[1989] 3 F.C. 147 (T.D.)], dealing with,
inter alia, motions to strike the defendants under
Rule 419 of the Federal Court Rules [C.R.C., c.
663]. The respondents, Southam Inc. and Mr.
Charles Rusnell cross-appeal certain aspects of
Mr. Justice Strayer's order as discussed in the
recital of the facts which follows.
FACTS
The corporate respondent, Southam Inc., is the
publisher and proprietor of The Ottawa Citizen, a
daily newspaper, and the individual respondent,
Mr. Charles Rusnell, is a reporter for that newspa
per. In about June 1988, the Senate Committee
started to investigate allegations against Senator
Hazen Argue involving his use of Senate funds and
services in the nomination campaign of his wife as
a candidate in the federal riding of Nepean. In
early July 1988, the Senate established a sub-com
mittee to examine and report upon the allegations
of misuse of public funds, and the sub-committee
submitted a report, dated July 29, 1988, to the
Senate Committee. The sub-committee heard from
fourteen witnesses at meetings held prior to sub
mitting its report which was considered by the
Senate Committee at least once at a meeting held
on August 18, 1988.
All of the meetings of the Senate Committee
and its sub-committee were held in camera. Mr.
Rusnell requested at various times that he be
allowed to attend the hearings of the Senate Com
mittee or its sub-committee and such requests were
refused. He also requested the opportunity to have
his counsel present oral representations as to why
he should be allowed to attend the hearings. On
June 23, 1988 and on August 18, 1988, Mr.
Rusnell and his counsel waited outside closed
meetings of the Senate Committee. On June 24,
1988, Mr. Rusnell was allowed through counsel to
make a written submission supporting his request
for access to the hearings, but the Senate Commit
tee did not change its position; and he was advised
on two occasions by Senator Royce Frith, the
Deputy Chairman of the Senate Committee, that
the Committee would continue to meet in camera.
As a result of the refusals, the respondents
commenced this action on August 22, 1988. In
their statement of claim,' they seek declarations
that the refusals by the Senate Committee to allow
them access to the hearings infringe the freedom
of expression guaranteed by paragraph 2(b) of the
Canadian Charter of Rights and Freedoms [being
Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C.,
1985, Appendix II, No. 44]] and are not justified
under section 1 of the Charter; that Rule 73 of the
' Appeal Book, at p. 7.
Senate 2 is contrary to the Charter for the same
reasons, as is any refusal based on Rule 73; that
such refusals are also contrary to paragraphs 1(d)
and (f) of the Canadian Bill of Rights [R.S.C.,
1985, Appendix III] "and contrary to the common
law"; and that refusals to allow the respondents to
make oral representations to the Committee on
their right of access are a breach of the duty of the
Senate Committee to receive and consider
representations. The respondents seek certiorari to
quash the decisions of the Senate Committee to
hold these hearings in camera and an injunction
against the Committee continuing to refuse access
of the respondents to such hearings.
On September 28, 1988, the statement of claim
was served on Senator Romeo LeBlanc, the then
Deputy Chairman of the Senate Committee. On
October 4, 1988, the solicitors for the Senate and
the Senate Committee accepted service on behalf
of Senator Guy Charbonneau, the Speaker of the
Senate, as if he had been personally served.
The appellant then brought the motion involved
herein on behalf of the Senate and the Senate
Committee, in which he sought to obtain orders
granting him standing to bring his motion, dismis
sing the action as against the Senate and the
Senate Committee, and declaring that the service
of the statement of claim upon the Honourable
Guy Charbonneau did not constitute proper ser
vice upon the Senate, the Senate Committee or its
members. The Attorney General of Canada
("Attorney General") also brought a motion
objecting to the joinder of Her Majesty the Queen
and himself as parties to an action in which no
claim was asserted against either of them.
On June 8, 1989, Mr. Justice Strayer held, in
response to the motions brought by the appellant
and the Attorney General, that the appellant had
2 Rule 73 of the Senate's Rules [Rules of the Senate of
Canada] provides:
73. Members of the public may attend any meeting of a
committee of the Senate, unless the committee otherwise
orders.
standing to bring his motion; that the Federal
Court had jurisdiction to entertain the respond
ents' claims; that the Senate and the Senate Com
mittee were to be struck out as defendants but
with leave to the respondents to file an amended
statement of claim within thirty days substituting
as defendants those persons who were members of
the Senate Committee during any or all of the
months of June, July and August 1988; that Her
Majesty the Queen be struck out as a defendant;
and that the Attorney General was a proper party
to the within appea1. 3
Before us, the respondents cross-appeal the
holding of Strayer J. that neither the Senate nor
the Senate Committee is an entity capable of being
sued, and argue that the Senate and Senate Com
mittee are properly named as defendants. It should
also be noted that the Attorney General, although
it decided not to appeal the order of Strayer J.,
asked, rather late in the day, to participate in the
appeal and was permitted to do so.
ISSUES RAISED ON APPEAL
The appellant argued that the learned Trial
Judge erred in: (i) holding the respondents' claims
are within the statutory jurisdiction of the Federal
Court, (ii) purporting to determine jurisdiction "of
courts generally" on the questions raised in the
statement of claim, (iii) rejecting the submission
that the issue is moot as a result of the dissolution
of the 33rd Parliament, and (iv) granting respond
ents leave to amend what Strayer J. himself
described as "a nullity".
The respondents, on the other hand, have raised
on this appeal and their cross-appeal the following
questions in addition to the jurisdictional issue
raised by the appellant, namely, whether:
(i) the appellant met the test to strike specified in
Rule 419 of the Federal Court Rules;
(ii) the Senate and the Senate Committee are
properly named defendants in this proceeding;
3 Appeal Book, 88-110, order and reasons for order of
Strayer J.
(iii) service upon the Honourable Guy Charbon-
neau and the Honourable Romeo LeBlanc con
stituted proper service upon the Senate and the
Senate Committee or their, respective members;
(iv) the issues in the respondents' action are moot;
and
(v) the statement of claim can be amended to
permit the Senate Committee to be proceeded
against under an appropriate title.
The main argument advanced by the appellant
and respondents in the hearing of the appeal relat
ed to the question of the jurisdiction of the Federal
Court. In my view, it is not necessary to deal with
all the other issues raised by the parties, important
as they may be as general questions of public
policy and administration. I say this because of the
conclusion I reach on the threshold question of
whether the Federal Court has jurisdiction to
entertain the action of the respondents. Mr. Justice
Strayer held the Court has jurisdiction. With
respect, I disagree.
JURISDICTION OF THE FEDERAL COURT
The appellant has argued that this Court has no
jurisdiction to entertain the claims of the respond
ents under either the Federal Court Act 4 or the
Canadian Charter of Rights and Freedoms. I
should like to deal first with the question whether
the Court has jurisdiction under the Charter.
Counsel for the respondents appeared to argue
that the Federal Court has jurisdiction over the
matters in issue in the statement of claim because
the proceedings of the Senate and Senate Commit
tee were subject to the Charter inasmuch as the
Charter applies to Parliament. The argument con
fuses jurisdiction with Charter applicability and
violation. It may well be that Parliament is subject
to the provisions of the Charter (a point I shall
refer to briefly below) but that is not the issue to
be decided relevant to juridiction. The question is
whether the Charter has conferred any jurisdiction
on the Federal Court and in my view it has not.
4 R.S.C., 1985, c. F-7.
Although subsection 24(1) of the Charter'
speaks of a court of competent jurisdiction where a
remedy can be sought to enforce a Charter breach,
that section and the Charter generally have not
conferred any jurisdiction on any court that it did
not already possess. To illustrate the point, I need
refer only to Mr. Justice McIntyre in Mills v. The
Queen 6 where he said:
To begin with, it must be recognized that the jurisdiction of
the various courts of Canada is fixed by the Legislatures of the
various provinces and by the Parliament of Canada. It is not for
the judge to assign jurisdiction in respect of any matters to one
court or another. This is wholly beyond the judicial reach. In
fact, the jurisdictional boundaries created by Parliament and
the Legislatures are for the very purpose of restraining the
courts by confining their actions to their alloted [sic] spheres.
In s. 24(1) of the Charter the right has been given, upon the
alleged infringement or denial of a Charter right, to apply to a
court of competent jurisdiction to obtain such remedy as the
court considers appropriate and just in the circumstances. The
Charter has made no attempt to fix or limit the jurisdiction to
hear such applications. It merely gives a right to apply in a
court which has jurisdiciton. 7 [Emphasis added.]
Later he quoted with approval the following
passage of Brooke J.A. in R. v. Morgentaler,
Smoling and Scott: 8
The weight of authority is that s. 24(1) does not create courts
of competent jurisdiction, but merely vests additional powers in
courts which are already found to be competent independently
of the Charter. We agree with Mr. Doherty that a court is
competent if it has jurisdiction, conferred by statute, over the
person and the subject matter in question and, in addition, has
authority to make the order sought. 9
With respect to jurisidiction under the Federal
Court Act, the Supreme Court of Canada has held
that three conditions must be met to establish
jurisdiction of the Federal Court in a particular
case:
5 Subsection 24(1) of the Charter reads as follows:
24. (1) Anyone whose rights or freedoms, as guaranteed
by this Charter, have been infringed or denied may apply to
a court of competent jurisdiction to obtain such remedy as
the court considers appropriate and just in the circumstances.
6 [1986] 1 S.C.R. 863.
Id., at pp. 952-953.
8 (1984), 48 O.R. (2d) 519 (C.A.), at p. 525.
9 Supra, note 6, at p. 960.
(i) there must be a statutory grant of jurisdiction
by the federal Parliament;
(ii) there must be an existing body of federal law
which is essential to the disposition of the case and
which nourishes the statutory grant of jurisdiction;
and
(iii) the law on which the case is based must be "a
law of Canada" as the phrase is used in section
101 of the Constitution Act, 1867 [30 & 31 Vict.,
c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c.
11 (U.K.), Schedule to the Constitution Act, 1982,
Item 1)1. 10
Mr. Justice Strayer found a statutory grant of
jurisdiction in section 18 of the Federal Court Act
which provides:
18. The Trial Division has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohibi
tion, writ of mandamus or writ of quo warranto, or grant
declaratory relief, against any federal board, commission or
other tribunal; and
(b) to hear and determine any application or other proceed
ing for relief in the nature of relief contemplated by para
graph (a), including any proceeding brought against the
Attorney General of Canada, to obtain relief against a
federal board, commission or other tribunal.
This section takes one back to the definition of
"federal board, commission or other tribunal" in
section 2 of the Act:
"federal board, commission or other tribunal" means any body
or any person or persons having, exercising or purporting
to exercise jurisdiction or powers conferred by or under an
Act of Parliament, other than any such body constituted or
established by or under a law of a province or any such
person or persons appointed under or in accordance with a
law of a province or under section 96 the Constitution Act,
1867;
The Trial Judge concluded that the action could
be entertained by the Federal Court under section
18 against a committee of the Senate if that
committee is properly named in the action and
properly served. He stated:
What is sought here is declaratory relief and certiorari, matters
both referred to in paragraph 18(a) of the Federal Court Act.
While in normal parlance one might not refer to a committee of
1 ° ITO—International Terminal Operators Ltd. v. Miida
Electronics Inc. et al., [1986] 1 S.C.R. 752, at p. 766 (per
McIntyre J.).
the Senate as a "federal board, commission or other tribunal",
that expression is specially defined in section 2 of the Act as
quoted above. It appears to me clear that a committee of the
Senate is either a "body" or consists of "persons" and therefore
is potentially within the definition. Further, I have concluded
that in this case, the committee in question is alleged to have
been "exercising or purporting to exercise jurisdiction or
powers conferre by or under an act of Parliament ..." "
In so concluding, Strayer J. rejected the argu
ment of counsel for the appellant that the Senate
or its committees are exercising powers not under
a law of Parliament but rather under section 18 of
the Constitution Act, 1967, which itself confers
privileges, immunities and powers on the Senate.
This section, the original version of which was
repealed and reenacted in 1875, reads as follows:
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. 12
I shall return to this point later, but suffice it to
say at this point that Strayer J. found that, once
Parliament passed a statute defining privileges,
immunities and powers of the Senate and House of
Commons, which it first did on May 22, 1868, 13 it
placed those privileges on a statutory basis and on
" At pp. 160-161.
12 Parliament of Canada Act, 1875, 38-39 Vict., c. 38 (U.K.)
[R.S.C., 1985, Appendix II, No. 13]. The original section
[(1867), 30 & 31 Vict. c. 3 (U.K.) [R.S.C., 1985, Appendix II,
No. 5]] read as follows:
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 the same shall never
exceed those at the passing of this 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.
13 An Act to define the privileges, immunities and powers of
the Senate and House of Commons, and to give summary
protection to persons employed in the publication of Parlia
ment Papers, S.C. 1868, c. 23.
which they continue to be by the present Parlia
ment of Canada Act." Under the analysis of
Strayer J., that statute is clearly an Act of Parlia
ment as referred to in the definition of "federal
board, commission or other tribunal" in section 2
of the Federal Court Act. As a result, the Senate
Committee is a "federal board, commission or
other tribunal" within the meaning of the Federal
Court Act and therefore the Trial Division has
jurisdiction under section 18 of the Federal Court
Act. Hence, the first condition for the Federal
Court's jurisdiction under the ITO case, viz., the
existence of a statutory grant of jurisdiction by
Parliament, was met according to Strayer J.
He also found that the other two conditions—
requiring that the matters in dispute involve feder
al law, and that such law be a "law of Canada"
within the meaning of section 101 of the Constitu
tion Act, 1867—were also met by the Parliament
of Canada Act.
I should now wish to review more closely each of
the three conditions necessary to base jurisdiction
in the Federal Court.
Counsel for the appellant has argued that sec
tions 2 and 18 of the Federal Court Act do not
create judicial review jurisdiction in respect of
Parliamentary proceedings because
(a) such review would be contrary to the law and
practice of the Constitution with which Parliament
is presumed to legislate in conformity, 15
(b) there is no express reference in the Federal
Court Act to parliamentary privileges and
immunities, and
(c) the statutory language is not apt to cover the
exercise of parliamentary privileges and
immunities. 16
14 R.S.C., 1985, c. P-1.
15 See Re Resolution to amend the Constitution, [1981] 1
S.C.R. 753, at p. 885.
16 See appellant's memorandum of fact and law, paragraphs
19-35.
The Attorney General has argued in support of
appellant's position by submitting that the sections
in question should not be interpreted by a literal
meaning but rather by what was intended, and it
was not intended that jurisdiction over parliamen
tary proceedings would be assigned to the Federal
Court when its statute was introduced in 1970.
These arguments are not by themselves conclu
sive of the matter, but they are useful to apply as
interpretive principles in this case. I say this
because these arguments lead one to conclude that,
in order to find jurisdiction in the present case, one
should be able to point to clear and unambiguous
language in the Court's constating statute. That
approach is appropriate herein because the review
of parliamentary proceedings is not a matter to be
taken lightly given the history of curial deference
to Parliament and respect for the legislative
branch of government generally. I hasten to add
that this does not mean that no accountability,
legal or otherwise, should exist. On the contrary,
courts must be quick to respond to uphold the rule
of law no matter how mighty or privileged the
party before the tribunal or how unpopular the
decision that has to be rendered.' 7 But in interpret
ing the mandate of this Court in the instant case, I
am of the view that we should base a conclusion of
jurisdiction on language that is clear on its face
where the result is that this Court will be assuming
a judicial review jurisdiction of the Senate or one
of its committees.
17 Courts have not hesitated to determine whether what a
parliamentary body claims to be privilege is to be accepted as
such: see e.g. Kielley v. Carson (1842), 13 E.R. 225 (P.C.);
Stockdale v. Hansard (1839), 48 Rev. Rep. 326 (Q.B.); Land-
ers et al. v. Woodworth (1878), 2 S.C.R. 158; Vallieres v.
Corporation de la paroisse de Saint-Henri de Lauzon (1905),
14 Rap. Jud. 16 (C.B. Roi); Chamberlist v. Collins et al.
(1962), 34 D.L.R. (2d) 414 (B.C.C.A.); Re Clark et al. and
Attorney-General of Canada (1977), 17 O.R. (2d) 593 (H.C.):
per Evans C.J.H.C. at p. 611:
Historically, there has always been some question whether
the Courts have jurisdiction to determine the nature and
extent of parliamentary privilege. As the supreme law-giving
body, it would seem only natural that Parliament should be
the source of authoritative guidelines on the subject. On the
other hand, there is something inherently inimical about
Members of Parliament determining the nature and extent of
their own rights and privileges. The Courts have seized on
this to consistently review the nature and extent of parlia
mentary privilege.
More specifically, as noted already, section 18
of the Federal Court Act gives exclusive original
jurisdiction to the Trial Division for specified relief
against any federal board, commission or other
tribunal which is defined in section 2 of the same
Act as any body or any person or persons having,
exercising or purporting to exercise jurisdiction or
powers conferred by or under an Act of the Parlia
ment of Canada. Counsel for the appellant empha
sized that "conferred" means "granted" or
"bestowed" and that the privileges, immunities
and powers of the Senate or its committees were
not "granted" or "bestowed" on them by or under
an Act of Parliament but by section 18 of the
Constitution Act, 1867. Counsel for the respond
ents argued that section 18 of the Constitution
Act, 1867 simply conferred the "power to define
the privileges, immunities and powers to be held,
enjoyed and exercised by the Senate". Once the
power to define has been put into statutory form,
the requirements of the definition of section 2 of
the Federal Court Act are met and jurisdiction
under section 18 thereof perfected as Strayer J.
correctly decided.
However, in my view, the words "conferred by
or under an Act of Parliament" of Canada in
section 2 mean that the Act of Parliament has to
be the source of the jurisdiction or powers which
are being conferred. The privileges, immunities
and powers of the Senate are conferred by the
Constitution, not by a statute, although the latter
defines or elaborates upon the privileges, immuni-
ties and powers. Such a statute then is the manife
station of Senate privileges but it is not its source;
the source is section 18 of the Constitution Act,
1867.
In the normal case of a federal board, commis
sion or tribunal, it is true to say that such a body
emanates from the exercise of the legislative power
of the federal Government under section 91 of the
Constitution Act, 1867, but in such a case it is the
federal statute which confers the power or jurisdic
tion on the federal board, commission or tribunal
and not the general legislative competence under
section 91. Section 18 of the Constitution Act,
1867 by its terms confers the jurisdiction directly
on the Senate, and consequently the Senate or one
of its committees is not a federal board, etc., under
the definition in section 2 of the Federal Court
Act. Therefore the Trial Division does not have
jurisdiction in this action under section 18 of the
Federal Court Act; thus the first condition of ITO
is not met as there has been no statutory grant of
jurisdiction by the federal Parliament.
However, even if I am wrong in interpreting
section 18 of the Constitution Act, 1867 as confer
ring the privileges, immunities and powers on the
Senate, I do not see how the Senate or one of its
committees can be treated as a "federal board,
commission or tribunal" by the plain meaning of
those words in section 18 of the Federal Court
Act. The Senate, as one of the Houses of Parlia
ment provided for in section 17 of the Constitution
Act, 1867, is a body that, with the House of
Commons, is an essential part of the process that
gives birth to federal boards, commissions or tri
bunals, and as such the Senate simply is not on the
same level as those entities.
In House of Commons v. Canada Labour Rela
tions Board, " Hugessen J.A. said this with respect
to the House of Commons:
While, in a sense, the House of Commons may be said to be
a creature of the Constitution Act, 1867, such a qualification,
in my view, belittles both the House and the Constitution. The
House is far more than a creature of the Constitution: it is
central to it and the single most important institution of our
free and democratic system of government. The Constitution,
for its part, is far more than a statute: it is the fundamental law
of the land. 19
While there are obvious differences between the
House of Commons and the Senate, the principal
force of Hugessen J.A.'s comments also applies to
the Senate in that it is far more than a creature of
the Constitution. Like the House of Commons, the
Senate is central to the Constitution. To treat the
Senate as though it were a federal board, commis
sion or tribunal not only belittles its role but also
goes beyond the ordinary meaning of those
18 [1986] 2 F.C. 372 (C.A.).
19 Id., at p. 389.
terms." In this respect, I agree with Strayer J.
that it is not part of normal parlance to speak of
the Senate as merely another federal board subject
to judicial review jurisdiction.
Nor can I accept that, when Parliament passed
the Federal Court Act in 1970, it intended to
assign to the Federal Court a supervisory judicial
review jurisdiction over the Senate, the House of
Commons or their committees as "federal boards,
commissions or tribunals". The major purpose of
this aspect of the Federal Court Act was to trans
fer the supervisory jurisdiction of federal boards
and tribunals from the provincial superior courts
to the newly created Federal Court, 21 and the
language in sections 18 and 2 was chosen to effec
tuate that purpose. To find an intention to confer
judicial review jurisdiction over the Houses of
Parliament would, as already stated, require clear
language to that effect.
I should also add that counsel for the appellant
raised another argument worthy of note. He
argued that Parliament could not, by incorporating
by reference into a federal statute the privileges,
immunities and powers already conferred by the
Constitution, thereby give to itself the authority to
allocate exclusive jurisdiction over such matters to
a federally created court. In Attorney General of
Canada et al. v. Law Society of British Columbia
et a1. 22 Mr. Justice Estey stated:
Any jurisdiction in Parliament for the grant of exclusive juris
diction to the Federal Court must be founded on exclusive
federal powers under s. 91 of the Constitution Act. In so far as
there is an alleged excess of that jurisdiction by Parliament, s.
101 of the Constitution Act cannot be read as the constitutional
justification for the exclusion from the superior courts of the
jurisdiction to pronounce upon it. [Emphasis added.] 23
20 The Shorter Oxford English Dictionary defines "board" as
the people who meet at a council table; "commission" as a body
of persons charged with some specified function; "tribunal" as
a court of justice, a judicial assembly, judicial authority.
2 ' For the comments of the then Minister of Justice, the Hon.
John N. Turner on this point, see House of Commons Debates,
Vol. V, 2nd Sess., 28th Parl. (March 25, 1970), at
pp. 5470-5471.
22 [1982] 2 S.C.R. 307.
23 Id., at pp. 328-329.
Section 101 of the Constitution Act, 1867, 24
which is the constitutional source of the Federal
Court, enables the Parliament of Canada to estab
lish courts "for the better Administration of the
Laws of Canada". It is, according to Estey J. in
the Law Society of British Columbia decision,
only the better administration of "section 91 laws"
that is contemplated by section 101 of the Consti
tution Act, 1867; and as the law in dispute herein
is not from section 91 but rather section 18, viz.
privileges, immunities and powers of the Senate,
exclusive jurisdiction cannot be placed on the Fed
eral Court.
This point brings me to the second and third
conditions required by the ITO case, namely, that
there must be an existing body of federal law
which is essential to the disposition of the case and
which nourishes the statutory grant of jurisdiction,
and that the law on which the case is based must
be a "law of Canada" as the phrase is used in
section 101 of the Constitution Act, 1867. I realize
that I need not discuss these conditions: since all
three conditions from the ITO case must be met
and the first has not been, no further discussion is
necessary. However, in view of the importance of
the issues before us, I feel obliged to comment.
Mr. Justice Strayer dealt briefly with the two
conditions by the following statements:
The federal law in question here is essentially sections 4 and
5 of the Parliament of Canada Act as quoted above. Even if
some of the law in question has its origins in a kind of common
law of Parliament or lex parliamenti, Parliament itself by
section 5 of the Parliament of Canada Act states that:
5. The privileges, immunities and powers held, enjoyed
and exercised in accordance with section 4 are part of the
general and public law of Canada ....
It is obvious that this is a valid federal enactment, clearly
authorized by section 18 of the Constitution Act, 1867, adopt
ing British law as federal law. Thus conditions 2 and 3 for the
24 Section 101 provides as follows:
101. The Parliament of Canada may, notwithstanding
anything in this Act, from Time to Time provide for the
Constitution, Maintenance, and Organization of a General
Court of Appeal for Canada, and for the Establishment of
any additional Courts for the better Administration of the
Laws of Canada.
existence of Federal Court jurisdiction are established. 25
It is worthwhile to reproduce sections 4 and 5 of
the Parliament of Canada Act 26 in their entirety:
Privileges, Immunities and Powers
Definition
4. The Senate and the House of Commons, respectively, and
the members thereof hold, enjoy and exercise
(a) such and the like privileges, immunities and powers as,
at the time of the passing of the Constitution Act, 1867, were
held, enjoyed and exercised by the Commons House of
Parliament of the United Kingdom and by the members
thereof, in so far as is consistent with that Act; and
(b) such privileges, immunities and powers as are defined by
Act of the Parliament of Canada, not exceeding those, at the
time of the passing of the Act, held, enjoyed and exercised by
the Commons House of Parliament of the United Kingdom
and by the members thereof.
5. The privileges, immunities and powers held, enjoyed and
exercised in accordance with section 4 are part of the general
and public law of Canada and it is not necessary to plead them
but they shall, in all courts in Canada, and by and before all
judges, be taken notice of judicially.
Although it may be said that the federal law for
purposes of the second condition of the ITO test is
the Parliament of Canada Act cited above, I do
not find this Act to be a "law of Canada" within
the meaning of section 101 of the Constitution
Act, 1867 for purposes of this third condition of
ITO. This is borne out by section 5 of the Parlia
ment of Canada Act.
The purpose of section 5 is twofold: firstly, to
declare the parliamentary privileges, immunities
and powers part of the general and public law of
Canada, and secondly, to make it unnecessary to
plead them as judicial notice is to be taken of
them. But, declaring them part of the general and
public law of Canada is further confirmation that
such powers, privileges and immunities are not
"laws of Canada" as this phrase is used in section
101 of the Constitution Act, 1867. This is even
more evident when one looks at the French version
of section 5. The expression "droit general et
25 At p. 165.
26 R.S.C., 1985, c. P-1. The provisions of the 1985 Revised
Statutes are identical to those in effect at the time of the events
in question in this case according to Strayer J. (p. 162).
public du Canada" cannot in my view be con
sidered as equivalent to the expression "des lois du
Canada" used in the unofficial translation of sec
tion 101 of the Constitution Act, 1867. 27 The
Constitution of Canada, which includes the
Canadian Charter of Rights and Freedoms, is the
most important part of the general and public law
of Canada and section 5 of the Parliament of
Canada Act underlines that parliamentary privi
leges, powers and immunities are also part of the
general and public law of Canada. That being the
case, there is no "laws of Canada" within the third
condition of ITO and therefore no jurisdiction in
the Federal Court to entertain the action herein.
In summary, I do not find clear language in the
Federal Court Act assigning jurisdiction to the
Court in an action of the kind before us. In fact, I
find the opposite to be the case. 28
JURISDICTION OF THE COURTS GENERALLY OVER
PARLIAMENTARY PROCEEDINGS
At this point I would in the normal case close by
simply stating that the appeal should be allowed
and the cross-appeal dismissed. But this is not the
normal case, and I would like to offer some com
ments about the question of the jurisdiction of the
courts generally to apply constitutional restraints
27 101. Le Parlement du Canada pourra, nonobstant toute
disposition contraire enoncee dans la presente loi, lorsque
toccasion le requerra, adopter des mesures a l'effet de creer,
maintenir et organiser une cour generale d'appel pour le
Canada, et etablir des tribunaux additionnels pour la meil-
leure administration des lois du Canada. [Footnote omitted.]
28 I note that Bill C-38, An Act to amend the Federal Court
Act, etc., 2nd Sess., 34th Parl., Eliz. II, 1989-90 assented to
March 29, 1990, by section 1 thereby, adds a provision to the
definition of "federal board, commission or other tribunal" in
the present Act to the following effect:
(2) For greater certainty, the expression "federal board,
commission or other tribunal", as defined in subsec
tion (1), does not include the Senate, the House of
Commons or any committee or any member of either
House. [Emphasis added.]
Counsel for the parties tried to exploit this amendment for their
own ends but I refrain from comment in view of the conclusion
I arrive at on the main question of jurisdiction.
to the exercise of privileges by the Senate or one of
its committees. Counsel for the appellant at the
hearing and in written argument appeared to con
cede that any jurisdiction in this respect was in the
superior courts of the provinces created by statutes
pursuant to head 14 of section 92 of the Constitu
tion Act, 1867. 29
Strayer J. was of the opinion that courts had
such a jurisdiction and found, in particular, that
the adoption of the Charter fundamentally altered
the nature of the Canadian Constitution such that
it is no longer "similar in Principle to that of the
United Kingdom" as is stated in the preamble to
the Constitution Act, 1867. 3 ° Accepting as we
must that the adoption of the Charter transformed
to a considerable extent our former system of
Parliamentary supremacy into our current one of
constitutional supremacy, as former Chief Justice
Dickson described it, 3' the sweep of Strayer J.'s
comment that our Constitution is no longer similar
29 However, as mentioned above, counsel for the appellant
also argued Strayer J. erred in purporting to determine jurisdic
tion of courts generally on questions raised on the statement of
claim. I do not think Strayer J. was wrong in considering the
question especially since he found that a major part of the
submission of counsel for the appellant was to the effect that no
courts had jurisdiction to apply the Charter to the Senate or
one of its committees. That is borne out by appellant's notice of
motion seeking dismissal of the action: Appeal Book, at p. 2.
3° At p. 156. Strayer, J. also found inapplicable section 9 of
The Bill of Rights (1688) [1 Wm. III & Mary, 2nd sess., c. 2
(Imp.)] which provided that freedom of speech and debates or
proceedings in Parliament ought not to be impeached or ques
tioned in any court or place out of Parliament. He pointed out
that courts in the United Kingdom and Canada have, in spite of
section 9 of The Bill of Rights, reviewed the exercise of alleged
parliamentary privileges where that exercise has impinged on
the rights of individuals, citing Stockdale v. Hansard, Kielley
v. Carson, Landers et al. v. Woodworth; supra note 17.
31 The Rt. Hon. R. G. B. Dickson, "Keynote Address", in
The Cambridge Lecture 1985 (F. McCardle, ed.), 1, at p. 4.
Chief Justice Dickson stated, of course, that Parliamentary
supremacy was preserved to a limited extend by the "non
obstante" provision of section 33 of the Charter. He also noted
that the British Constitution involves the interplay of three
unwritten principles: the sovereignty of the Crown, the rule of
law protected by an independent judiciary, and the supremacy
of Parliament. The Chief Justice pointed out that even before
the Charter, Parliamentary supremacy in the British sense was
never absolute in Canada. Id. at pp. 2-3.
in principle to that of the United Kingdom is
rather wide. Granted much has changed in the
new constitutional world of the Charter. But just
as purists of federalism have learned to live with
the federalist constitution that Canada adopted in
1867 based on principles of parliamentary govern
ment in a unitary state such that the United
Kingdom was and continues to be, so it seems to
me that the British system of constitutional gov
ernment will continue to co-exist alongside the
Charter if not entirely, which it never did, but
certainly in many important respects. The nature
of scope of this co-existence will depend naturally
on the jurisprudence that results from the ques
tions brought before the courts.
Strayer J. was of the view that paragraph
32(1)(a) of the Charter 32 makes it clear that in
referring expressly to Parliament, the restraints of
the Charter are imposed on the constitutional ele
ments of Parliament in the same way as the refer
ence to "government', in the same section makes
the Charter binding on every component and offi
cer of government while acting as such. 33 In this
connection, one learned commentator has stated
that the supremacy of the Charter applies to the
Senate and the House of Commons with respect to
every action taken by them:
... by virtue of their traditional rights and privileges, which
affects individual rights. Thus [the Charter] would apply, for
example, to the penal sanctions which may be imposed on a
person found guilty of contempt of Parliament. The Charter
applies to Parliament in the exercise of its legislative power. It
would be incongruous if the Houses of Parliament could ignore
32 Paragraph 32(1)(a) of the Charter states:
32. (1) This Charter applies
(a) to the Parliament and government of Canada in
respect of all matters within the authority of Parliament
including all matters relating to the Yukon Territory
and Northwest Territories; and
33 At p. 159, Strayer J. noted that the Supreme Court of
Canada, by virtue of section 32 of the Charter, had little
difficulty finding the Charter applicable to the exercise of the
royal prerogative in Operation Dismantle Inc. et al. v. The
Queen et al., [1985] 1 S.C.R. 441, at pp. 463-464.
the Charter in circumstances where their non-legislative actions
violate fundamental values protected by the Charter. 34
However, there are questions and arguments to
the contrary. For example, as noted already, para
graph 32(1)(a) of the Charter applies to Parlia
ment, which by section 17 of the Constitution Act,
1867 means all three components of the House of
Commons, the Senate and Her Majesty the
Queen. But does paragraph 32(1)(a) apply where
only one of the House of Commons and the Senate
(or one of its committees) is involved? 35 Do the
provisions of the Charter not apply because
another pre-existing section of the Constitution
Act, 1867, namely section 18, expressly confers
privileges, powers and immunities on the House of
Commons and the Senate? 36 What is the relevance
in the Charter era of the jurisprudence to the
effect that courts have been reluctant to interfere
with the internal proceedings of Parliament
(assuming only such proceedings were involved
herein)? 37
Obviously this issue is very important; but
because it was not the focus of argument before us
and is not necessary to the disposition of the
appeal, I shall say no more on the matter.
34 R. Tasse, "Application of the Canadian Charter of Rights
and Freedoms", in The Canadian Charter of Rights and
Freedoms (2nd ed. 1989) Beaudoin and Ratushny, eds. 65, at
pp. 71-72.
35 This question is raised by R. Tasse, id., at p. 71.
36 See: Reference Re Bill 30, An Act to amend the Education
Act (Ont.), [1987] 1 S.C.R. 1148. Strayer J. rejected this
argument saying that the Charter must be taken to have
superseded any implied constitutional immunity from judicial
review of Parliamentary organs regarding alleged privileges at
least where such exercise is said to infringe individual rights
and freedoms guaranteed by the Charter (p. 157).
37 For a recent example, see MacLean v. Nova Scotia (Attor-
ney General) (1987), 76 N.S.R. (2d) 296 (S.C.). Glube C.J.
stated that the power to expel a member by a resolution passed
by the legislative assembly would normally not be reviewable
by the court: id., at p. 304. However, Chief Jutice Glube went
on to review and uphold under the Charter a provision in a
statute passed by the Nova Scotia House of Assembly dealing
with expulsion of a member.
DISPOSITION
In conclusion I would allow the appeal, and
dismiss the cross-appeal. I would also set aside the
order dated June 8, 1989 of Mr. Justice Strayer in
so far as it dismissed the appellant's motion to
dismiss, and rendering the judgment that ought to
have been made by him, dismiss the action of the
respondents.
STONE J.A.: I agree.
DECARY J.A.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.