When we talk about “parliamentary privilege,” we refer to a set of rights and protections that enable lawmakers at the federal and provincial levels in Canada to perform their duties without fear of being legally liable. These privileges safeguard the democratic principles Canada is built upon, ensuring each branch of government respects the others’ roles. But how does this privilege intersect with defamation law in Ontario? Let’s take a deep dive into this topic.
The Constitution Act, 1867 and the Genesis of Parliamentary Privilege
The Constitution Act, 1867, laid the groundwork for a system of government “akin in principle to the United Kingdom’s.” This structure includes various branches—namely, the Crown (represented by the Governor General and provincial Lieutenant Governors), legislative bodies, the executive branch, and the courts.
Parliamentary privilege works to maintain the balance among these bodies. It encompasses all the rights and protections required for the Senate, the House of Commons, and provincial legislative assemblies to perform their duties. This system’s primary goal is to hold the government accountable for the nation’s operations.
The Parliament of Canada Act further specifies these privileges. Meanwhile, provincial legislatures have defined their members’ privileges via provincial statutes.
The Importance of Freedom of Speech
One core value safeguarded by parliamentary privilege is freedom of speech within legislative assemblies. This principle is anchored in the English Bill of Rights of 1689, which prohibits any impeachment or questioning of speech and debates in Parliament outside of Parliament.
This privilege protects legislative bodies from legal liability for statements made in the course of their duties, allowing them to call the executive branch to account without fear. It even extends to the words spoken by legislative committee members and witnesses testifying before them.
Judicial Limitations on Parliamentary Privilege
Courts can determine the scope and categories of conduct covered by parliamentary privilege. For instance, a member of the legislature who communicates statements made within the assembly to the media is protected by privilege, as long as the communication is part of their duties. However, courts will not investigate whether privileged conduct was appropriate or not – that task falls solely within the legislative assembly’s domain.
The Limits of Parliamentary Privilege
Parliamentary privilege, however, is not limitless. Statements made outside of privileged forums, for instance, can make assembly members legally liable. The law interprets “republication” broadly—it can be explicit, implied, or even inferred from conduct. This liability was illustrated when an assembly member reiterated outside the assembly that he upheld defamatory words spoken within it.
However, courts are not permitted to use statements made inside the legislature as evidence that the speaker was motivated by malice when making defamatory comments outside of it. Doing so would intrude on the speaker’s privilege.
The Impact of Makudi v. Baron Triesman of Tottenham
A significant development came with the case of Makudi v. Baron Triesman of Tottenham, where the England and Wales Court of Appeal held that a statement outside a privileged parliamentary forum was subject to parliamentary privilege due to its close connection with a statement made within the privileged forum. However, the Court emphasized that such instances would be infrequent and dependent on the specific circumstances, signalling that such privilege should not be easily invoked.
Parliamentary Privilege vs. Statements to Public Bodies
Privileged communication isn’t exclusive to legislative assemblies. Other public bodies not engaged in judicial or quasi-judicial functions also enjoy a level of privilege, albeit qualified, not absolute. For instance, statements made in meetings by members of municipal councils and school boards are privileged, provided they’re made honestly and in pursuit of public duty.
The Case of Gutowski v. Clayton
In the Ontario case Gutowski v. Clayton, the Court of Appeal refused to give municipal councillors absolute immunity for their utterances. The Court highlighted the distinction between municipal councils and federal and provincial legislatures, to which absolute privilege is expressly granted by statute, along with a comprehensive set of rules governing members’ conduct.
As Always, Defamation Law is Complex
Parliamentary privilege in Ontario’s defamation law is a complex area, intricately intertwined with the democratic underpinnings of the Canadian constitution. While it provides a necessary level of immunity, it also carefully maintains a balance, ensuring that privilege is not used to mask misconduct or malicious intent. It stands as a testament to the delicate interplay between legislative bodies, public officials, and the judicial system.
Example: Ontario v. Rothmans
In the case Ontario v. Rothmans, a motion was initiated by Imperial Tobacco to strike parts of a lawsuit filed by the Crown (the government). This lawsuit was looking to claim $50 billion from 14 defendants, including Imperial Tobacco, to cover the cost of health care related to diseases caused by tobacco.
The government accused the defendants of continually making false statements about the dangers of smoking during meetings with the House of Commons and federal legislative committees. The government alleged these false statements were part of an ongoing conspiracy by the defendants.
Imperial Tobacco argued that the statements they made to these committees were protected by parliamentary privilege, which includes freedom of speech. They believed these statements could not be used against them in a lawsuit.
The court agreed with Imperial Tobacco. They ruled that the statements made by the defendants during the committee meetings were protected by parliamentary privilege, specifically their right to free speech. They found no evidence in the lawsuit that Parliament had given up this privilege. So, the court allowed Imperial Tobacco’s motion to strike these parts from the lawsuit. This means that the government cannot use these statements as evidence against the defendants in this lawsuit.
