DISCLAIMER

The focus of this posting is on the period parliamentary privilege may be claimed after the expiry of the 40 day period following the dissolution of the House of Commons for a Canadian federal election and before the newly elected House of Commons recommences business.

The following represents the results of some lengthy Twitter brainstorming by Thomas Hall, Sean Hunt and me respecting the running of an MP’s privilege between the dissolution of the House of Commons and the recalling of Parliament. I am summarizing the conclusions reached in that brainstorming insofar as Twitter is not the easiest medium to consolidate results of tweets carried out over an extended period. I have not shared this summary with either Mr. Hall or Mr. Hunt prior to blog publication so, obviously, any errors herein are mine.

I have edited this entry since its original posting but have not changed any of the substantive conclusions arrived at early. The posting was edited to:

add a reference to Maingot’s assertion that privilege cannot be claimed until one is elected a MP;

add a reference to the Federal Court decision in Samson Indian Nation which recognized a shorter period during which privilege exists; and

to make minor style changes.

In the course of this brain storming we periodically referred to the Ontario Court of Appeal decision in TeleZone Inc. v. Attorney General, 235 D.L.R. (4th) 719, 2004 CanLII 36012 (Ont. C.A.), Erskine May’s Parliamentary Practice, and Joseph Maingot’s Parliamentary Privilege in Canada. This is a summary of the conclusions reached in a Twitter stream. It is not represented as more. There is no deep and scholarly research here. TeleZone was updated to ensure that it remains good law. We welcome any views or additional information based on more authoritative research that may contradict or supplement the below.

Lastly, the calculations and dates used herein have not taken into account any possible delays that might result from such things as a delay in the validation of results, a judicial recount, errors in the return of the writ or delays in publication of results.

OVERVIEW

The summary of our conclusion is:

There appears to be no doubt that a former MP enjoys Parliamentary privilege for 40 days after the dissolution of Parliament. (TeleZone). This appears to flow from his or her status as an MP in the dissolved House rather than some status as an MP after dissolution.

A person summoned as an MP to a Parliament recalled after dissolution enjoys privilege for a maximum of 40 days before the date appointed for business in the proclamation recalling the House of Commons. (The privilege will continue after House is recalled).

In order to determine if and when an individual enjoys Parliamentary privilege respecting the recall of Parliament after a dissolution you need two things. The absence of either indicates that there is no privilege: i) there must be a person who has been summoned to the business of the House – i.e. a person must be elected as an MP; and ii.) the House of Commons must have been summoned to attend for business on a specific date.

Thus, the 40 days preceding the recall of the House will be calculated starting from the pro forma date set for the next meeting of the House in the proclamation issued at the time of the House’s dissolution and counting backwards for 40 days or to the date a person was elected as MP should that take place less than 40 days before the appointed date for meeting.

With respect to the possibility of Prime Minister Stephen Harper being summoned as a witness in the on-going trial of Senator Mike Duffy the Prime Minister’s privilege as a former member of the now dissolved House expires Sept. 11, 2015. If elected in this current general election his privilege will not recommence until the date the writ is returned to the Chief Electoral Officer and the information published in the Canada Gazette. This cannot physically be sooner than November 2, 2015. So one can likely safely conclude that at least between Sept 12, 2015 and November 2, 2015 the Prime Minister will not enjoy any privilege even if he is re-elected to the House.

DISCUSSION

Who Has Been Summoned

The date an MP is elected is tied to the return of the writ.

The formal date for the return of the writ is set out in the proclamation dissolving the House. In the case of the current general election the date set for the return of the writs is November 9, 2015. This is a pro forma date as the writs can be returned earlier.

This formal date is calculated today by reference to the periods specified in the Canada Elections Act for the validation of the vote and the return of the writ. The formal date is usually set a date which is a little longer that the earliest time possible for writs to be returned under the Act and a little shorter than the longest time that the writs can be returned under the Act.

Under the Canada Elections Act the original date for the RO to validate the results is set out in the Notice of Election posted at the time the RO first opened his or her office.

That original validation date can be no later than 7 days after polling day (section 62(c) CEA).

If all of the returning ballot boxes have not been received by the RO by that original validation date the RO can delay the validation up to no more than 7 additional days to allow time for all of the boxes to be received (s. 293(2) CEA).

No earlier than six days following the validation of results the RO declares the relevant person elected on the back of the election writ (s. 313(1) CEA) (“The returning officer … shall declare elected the candidate who obtained the largest number of votes by completing the return of the writ in the prescribed form on the back of the writ.”)

The RO then “without delay” returns the writ to the Chief Electoral Officer (s. 313 CEA).

The CEO then verifies the returned writ and returns it to the RO for completion or correction if necessary (s. 315(3) CEA).

If all is in order the CEO publishes in the Canada Gazette the name of the candidate who was declared elected (s. 317(b) CEA).

Maingot, in his Parliamentary Practice states that in Parliamentary practice the entry in the Canada Gazette commences the official existence of a Member. If this is correct then presumably this is the date which determines who has been summoned to the business of Parliament for the purposes of Parliament.

Summoning The House And The Date For Business

It appears to be common in Canada to refer to an M.P.’s privilege existing during the 40 days before and after a session and for 40 days following the dissolution of the House. (TeleZone). (The Federal Court had earlier, in Samson Indian Nation & Band v. Canada, 2003 CarswellNat 2526, 2003 FC 975, [2003] F.C.J. No. 1238, 238 F.T.R. 68 (Fed. Ct.), reduced this period to 14 days to reflect the effect of modern means of communication and travel. However, the Ontario Court of Appeal in TeleZone disagreed with the Federal Court and held that once a court had recognized the privilege it did not have the authority to modify it to reflect changing social conditions. The 40 day period best reflects the traditional approach taken by the Canadian case law and by Speakers of the House of Commons. We are not aware of any Canadian case law which has employed the 14 day period set out in Samson Indian Nation.)

The difficulty with referring to the privilege existing for the 40 day preceding a Parliamentary session is that a session does not commence until it commences. In other words, until the session actually commences one does not have a fixed day from which to calculate the preceding 40 day period. One can have reference to the third proclamation which is issued at the time of the dissolution of the House which sets a pro forma date for the House to meet. However, until the House actually meets the session has not officially started. We think that this is a matter of semantics (as illustrated in the next paragraph) and that one uses the pro forma date as the date for the backwards calculation for the beginning of privilege.

Erskine May refers to Parliamentary privilege operating after dissolution for the 40 days before the next appointed meeting. This wording makes more logical sense than attempting to use “session” in the calculation of the advance period of privilege. Using this wording it is clear that in the case of dissolution, the pro forma date set out in the proclamation calling for the meeting of Parliament is the date that has been appointed for the meeting of the House. Thus, after dissolution one can look to the pro forma date in the proclamation summing the House of Commons which is issued on the date of the dissolution of the House (and published in the Canada Gazette) as the date to be used in calculating the beginning of privilege (40 days before the appointed date for meeting).

This pro forma date can, and almost always does, change following an election. As and when that occurs it is this new date which is used for the calculation of the beginning of privilege. Thus, a privilege which may exist at a specific time on the basis of an existing pro forma date fixed for the recall of the House may disappear for that time and not start until later if the actual date of recall is shifted to a later date. When the pro forma recall is changed the period of the privilege must be recalculated.

Is Privilege Retroactive To Date Before One Is Elected MP?

Maingot asserts that privilege is not retroactive to a date before a person was elected an MP.. This appears logical in light of a number of common sense factors.

The purpose of the Parliamentary privilege is so that the Crown has the unrestricted right to call upon the House for service. It is to provide time for the summoned person to prepare and to travel to the House.

Taking this as a foundational base it stands to reason that the privilege cannot exist until such time as a summons issues and there is a person summoned.

Consequently, it is our view that privilege arising from the recall of the House does not attach to a person until he or she has been elected. Where the 40 day period counting backwards from the pro forma date of recall extends back to a date before a person was elected that person cannot claim privilege for the amount of the 40 day period that falls before the date of his or her election. Privilege does not operate retroactively to some date before the election of a member. Unless one is dealing with the privilege enjoyed by a former MP that exists only for the 40 days after the dissolution of the House a person cannot claim privilege for a period before he or she was elected.

Allowing the privilege to run prior to the election of a member serves no purpose in terms of preparing and travelling to the House. It can also interfere with other legal proceedings which may be taking place at that time for no purpose. Allowing for retroactive application of privilege can also cause confusion as to whom it applies. If one used only the date fixed for meeting as the determinative factor for the fixing of the period of privilege, privilege could apply to anyone who could potentially be elected within the 40 day period prior to the date fixed for meeting. For example, in the case of the current federal general election the pro forma date fixed for the meeting of the House is November 16th, 2015. Forty days preceding that date is October 7th, 2015 – some 12 days before polling day. It is inconceivable that every candidate in the current general election could potentially claim privilege between October 7 and the return of the writs even though that time will fall in the 40 day period preceding the pro forma date of recall..

Thus, in our view, after the dissolution of the House a former M.P. enjoys privilege for 40 days after the dissolution. Thereafter privilege ends and no one can claim it until the privilege recommences. Privilege recommences following a person’s election in the ensuing general election as calculated from the pro forma date set for the reconvening of the House counting backyards to whatever date falls 40 days before that date or to whatever date a person may have been elected as the M.P. and who has been summoned to the House if that date is less than 40 days before the date fixed for the meeting of the House.

Application To Prime Minister Stephen Harper

Speculation appears to abound respecting the ability to summon Prime Minister Stephen Harper as a witness in the criminal trial concerning Senator Mike Duffy. If one applies the above conclusions to the Prime Minister’s case at this time one arrives at the following:

The Prime Minister’s privilege as a former member of the dissolved House ends September 11, 2015 (40 days after dissolution).

Given that the pro forma date for the next meeting of the House has been set at November 16th, 2015 should Mr. Harper be re-elected his Parliamentary privilege will recommence no earlier than the date the relevant writ of election for his district has been completed, returned to the Chief Electoral Officer and likely published in the Gazette. (Should the RO’s certification of a person as having been elected be sufficient for that person to be considered to be an MP this date will shift to the earlier date of the RO’s completion of the writ (no earlier than 6 days after validation.)

Given a polling date of October 19, 2015 the absolute earliest this could take place is November 2, 2015 (7 days for validation – assuming the validation date for that district was originally set at 7 days after polling day- and 6 days for return of the writ – assuming a super-human effort in returning the writ to the Chief Electoral Officer and publication on that same day)