Baxter and Conway Litigation quoted on NDP’s Federal Court challenge to Speaker’s Parliamentary Privilege claims.

Fifty-five NDP MPs representing Quebec electoral districts have escalated the party’s unprecedented Federal Court challenge of internal Commons rulings that NDP MPs contravened House spending bylaws to the tune of tens of thousands of dollars in ineligible expenses for partisan flyers, and possibly hundreds of thousands of dollars in payments for a satellite staff office in Montreal.

The MPs, all but two members of the current NDP Quebec caucus, fired off a second round last week in the party’s bid for a Federal Court review, arguing that a Commons Board of Internal Economy ruling in August condemning the Montreal office and its use of NDP Parliamentary staff was contrary to the rule of law and an “absurd” outcome of political bias by Conservative and Liberal MPs on the powerful internal House panel.

As the court battle ramped up, a case management judge hearing initial statements in the part of the court action centering on NDP political flyers ruled that the primary issue of the confrontation—whether the Federal Court has the jurisdiction to make judgment on the internal deliberations of MPs managing House bylaws and rules—will be heard on an expedited basis by a full judge of the Federal Court trial division.

Federal Court prothonotary Richard Morneau gave the Board of Internal Economy and its chair, Commons Speaker Andrew Scheer (Regina-Qu’Appelle, Sask.), until Sept. 30 to provide the court with their initial response to the NDP claims, along with affidavits supporting their likely arguments that Parliamentary privilege would prevent the Federal Court from interfering.

Arguments on all three subjects of the NDP court applications—the board ruling that the NDP mail-outs violated House rules, an order stating 23 NDP MPs had to reimburse $36,600 to the Commons in costs for printing and mailing the flyers and the legal status of the Montreal satellite office—will likely be heard in a single consolidated case that began with prothonotary Judge Morneau’s decisions on the mail-out challenge.

The latest court filing by the NDP MPs, including party leader Thomas Mulcair (Outremont, Que.), not only escalated the breadth of the court challenge, but also the tempo and language of the NDP legal response to the board’s decisions, all made behind closed doors under the strict rules of confidentiality that govern Commons Board of Internal Economy hearings and discussions.

The application for judicial review of the Montreal satellite office, along with two smaller ones the NDP had established in Québec City and Toronto, reiterated arguments that the secretive decisions were contrary to principles of natural justice and the rule of law, but it went much further in language and denunciation of the board and its Conservative and Liberal members.

“The decision is, in fact, an example of political bias,” the NDP court filing says. “The decision is in fact absurd in the light of modern technologies that enable people to work everywhere. There is no legal basis for this decision in Canadian law or Parliamentary rules [and] the decision is illegal since Members of Parliament are entitled by law to exercise their parliamentary functions ‘wherever’ and in so doing are entitled to make use of Parliamentary resources to accomplish parliamentary functions.”

The NDP last week was expected to release examples of Liberal and Conservative flyers to back up its argument that the mail-out rulings by the majority Liberal and Conservative MPs on the committee were inspired by partisan motives. CBC reported on Friday that NDP MP Craig Scott (Toronto Danforth, Ont.) sent letters to Mr. Scheer asking him to look into 20 direct mailings sent by Conservative and Liberal MPs.

While the NDP appeal to Federal Court centering on the Montreal office lists only MPs from Quebec as the applicants for a court hearing, the application centering on the mailings, which allegedly were sent into electoral districts during 2013 byelections, includes the names of some of the most prominent NDP MPs outside Quebec: Mr. Scott, a constitutional lawyer and law professor, who represents the same riding once held by the late former leader of the NDP, Jack Layton; Nova Scotia MP Megan Leslie (Halifax, N.S.); Robert Chisholm (Dartmouth-Cole Harbour, N.S.), a former leader of the Nova Scotia New Democratic Party; and Ryan Cleary (St. John’s South-Mount Pearl, Nfld.), who defeated a Liberal Party star in 2011, Siobhan Coady, to expand the federal NDP contingent in Newfoundland and Labrador to two MPs.

As a former Commons Speaker did in a previous precedent-setting case involving a court’s constitutional ability to interfere in House of Commons disputes over internal matters—resulting in a Supreme Court of Canada ruling that in part said Parliamentary privilege would not necessarily prevent a court from hearing a case over a Canadian Human Rights Act violation within the House of Commons—Mr. Scheer and the MPs on the Board of Internal Economy have retained outside legal counsel to fight the NDP challenge.

But their choice of lead counsel, Montreal litigation and constitutional lawyer, Guy Pratte, has raised eyebrows.

The surprise was not so much because Mr. Pratte in the past successfully represented former prime minister Brian Mulroney in a judicial inquiry into money he accepted from a lobbyist after leaving office—but because Mr. Pratte strongly argued in another high-profile case that a key witness and one of the subjects of a judicial inquiry into the Liberal sponsorship scandal did not qualify for immunity through Parliamentary privilege over testimony he gave during a Commons committee inquiry into the same scandal.

Mr. Pratte lost that argument when the inquiry’s presiding judge, former Superior Court justice John Gomery, gave significant weight to the fact that the Commons committee had promised the witness, former bureaucrat Chuck Guité, immunity from any other court proceeding if he testified at the House committee.

Mr. Pratte was at the inquiry representing Jean Pelletier, former prime minister Jean Chretien’s chief of staff, and wanted to cross-examine Mr. Guité over the fact that statements he made in a deposition to the inquiry contradicted statements he made at the committee.

Mr. Guité was later found guilty of criminal wrongdoing in the sponsorship affair.

Prominent lawyers and experts on privilege agree the first and biggest test of the NDP court case will be the initial hearing into whether the Federal Court has jurisdiction to consider and make a judgment on the legality or constitutionality of the Board of Internal Economy’s decisions and orders. The board has ultimate authority over House spending and expense bylaws, but has no role in the operations, rules, acts, or deliberations of the Commons lawmaking Chamber or its committees.

Former House of Commons law clerk Rob Walsh, who was the top in-house legal counsel when the NDP established its Montreal office, argues the Board of Internal Economy has a unique status that is open to judicial review because it was created through the Parliament of Canada Act. He argues the board, like all government departments, boards, and agencies created through statutes passed by Parliament, should not enjoy Parliamentary immunity from court tests of its decisions.

“Presumably Pratte will rely on the law of Parliamentary privilege to argue that Parliamentary privilege protects the board from judicial review,” Mr. Walsh told The Hill Times by email in response to a request for his view.

“I, for one, am not persuaded that this argument is sound, in as much as the board is a creature of statute and not a House committee, and therefore not covered by Parliamentary privilege, although some matters before the board could be covered by privilege as internal matters,” Mr. Walsh said.

Ottawa litigation lawyer Colin Baxter, a partner at Conway Litigation LLP, which has several veteran lawyers who have followed political and Parliamentary affairs closely through their careers near Parliament Hill, pointed to the two Supreme Court of Canada precedents that have set the bar, so far, for disputes over how far courts can go when reviewing the constitutionality of internal decisions by the House of Commons or provincial legislatures.

Mr. Baxter told The Hill Times that at the least, Mr. Scheer and the Board of Internal Economy will have to justify why any immunity through Parliamentary privilege is necessary, since its deliberations are unrelated, directly, to the lawmaking, decision making and debate functions of Parliament, which have been protected from outside judicial or legal interference since Confederation, and for centuries prior to that in Britain’s Parliament.

Mr. Baxter referred to the case involving internal Commons employment, when a Hindu chauffeur accused a former Speaker of racial intolerance, and the other ground-setting case, when the Supreme Court of Canada overruled a Nova Scotia Court of Appeal decision that the Charter of Rights obligated the Nova Scotia House of Assembly to allow news media to set up their own television cameras to freely broadcast proceedings in the legislature chamber.

“If you can’t slot what the Board of Internal Economy is doing into a neatly recognized and historically recognized category of privilege, then it has to be recognized on the basis of necessity,” said Mr. Baxter, who did his law articling as a clerk at the Supreme Court.

“Why should it be privileged? It’s necessary for the Parliamentarians to do their work, and that’s where the tension comes up,” said Mr. Baxter, posing a question the Federal Court might ask.

“Is it truly necessary that the Board of Internal Economy and its decision making be entirely removed from the oversight of courts? Is that, in this day and age, something that can be defended that it’s necessary for Parliament to function well?” Mr. Baxter said.

Tim Naumetz, The Hill Times



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