DATE: 19991110
DOCKET: C31541
COURT OF APPEAL FOR ONTARIO
CHARRON, ROSENBERG and MacPHERSON JJ.A.
BETWEEN: )
)
ERNST ZÜNDEL ) Barbara Kulaszka,
) for the appellant
Plaintiff )
(Appellant) )
)
- and - ) Brian A. Crane, Q.C. and
) Scott Little,
DON BOUDRIA and RANDY WHITE and BILL ) for the respondents
BLAIKIE and ELSIE WAYNE and ALEXA )
MCDONOUGH and HEDY FRY and ALFONSO )
GAGLIANO and PRESTON MANNING and JEAN )
CHRÉTIEN and GILLES DUCEPPE and PETER )
MACKAY and THE CANADIAN JEWISH )
CONGRESS and MOSHE RONEN and THE )
LIBERAL PARTY OF CANADA and THE )
REFORM PARTY OF CANADA and THE NEW )
DEMOCRATIC PARTY and THE PROGRESSIVE ) Heard: September 15, 1999
CONSERVATIVE PARTY OF CANADA and )
THE BLOC QUÉBÉCOIS )
)
Defendants )
(Respondents) )
)
)
On appeal from the order of Mr. Justice Chadwick dated January
22, 1999
CHARRON J.A.:
[1] This is an appeal from an order of Chadwick J., dated
January 22, 1999, striking the Statement of Claim of the
appellant, Ernst Zündel, as against the respondent members of
Parliament (Chrétien, Manning, Wayne, McDonough, Duceppe, MacKay,
Boudria, White, Blaikie, Fry, and Gagliano) on the ground that it
discloses no reasonable cause of action.
[2] The appellant’s claim arose out of a motion passed
unanimously by the House of Commons on June 4, 1998. The motion,
which denied the appellant “admittance to the precincts of the
House of Commons during and for the remainder of the present
session”, effectively prevented him from holding a press
conference in Room 130-S in the Centre Block of the Parliament
Buildings on June 5, 1998. In his action, the appellant sought a
declaration that the respondents violated his right to freedom of
expression guaranteed under s. 2(b) of the Canadian Charter of
Rights and Freedoms and damages for this violation and for
conspiracy to injure, public misfeasance, and abuse of office.
[3] The respondents brought a motion to strike the claim under
Rules 21.01(1)(b) and 21.01(3) of the Rules of Civil Procedure
R.R.O. 1990, Reg. 194 on the ground that it was founded on
matters of parliamentary privilege that were not subject to
review in the courts. Chadwick J. agreed that the respondents,
in passing the motion which formed the subject-matter of the
action, had acted in the exercise of the parliamentary privilege
to exclude strangers and struck the claim as disclosing no
reasonable cause of action.
[4] By further order of Chadwick J., the appellant’s action was
dismissed as against the defendant political parties on the
grounds that they do not constitute legal entities. No appeal is
taken from that order. The appellant’s action against the
defendants The Canadian Jewish Congress and its president, Mr.
Moshe Ronen, remains intact and is not the subject of this
appeal.
[5] The test for striking out a pleading is whether it is plain
and obvious that it discloses no cause of action. The facts as
pleaded must be taken to be true and, since the rule is a
limitation on a party’s right to trial, the pleading should be
read generously to accommodate drafting deficiencies. Where
matters of law are not fully settled in the jurisprudence, the
action should be permitted to continue.
[6] The appellant describes himself in his pleading as “a German-
Canadian publisher, writer, broadcaster and human rights
activist” who “has defended the German ethnic group against false
atrocity allegations made during and after World War II”. He
relies on the following essential facts to found his action.
[7] The appellant scheduled a press conference for June 5, 1998,
to discuss a case before the Human Rights Tribunal in which he
was accused of exposing Jews to hatred and contempt on an
internet website known as the “Zündelsite.” The title of the
intended press conference was “The New Inquisition in Toronto!
Government tries to grab control of the Internet”. The appellant
booked the Charles Lynch Press Conference Room situated in the
Parliament Buildings for his press conference. The booking was
made with the officials of the Canadian Parliamentary Press
Gallery.
[8] On June 4, 1998, the respondent House Leaders Blaikie,
White, MacKay and Boudria all rose in the House of Commons
advising the members of Parliament of the appellant’s plans to
hold the press conference and stating that he must not be
permitted to use the Charles Lynch Press Conference Room, given
his well-known position on the Holocaust. The respondent Boudria
acknowledged that the government did not administer the rooms in
question and that the room was in fact accessible to the
appellant. Boudria also advised the members that he had contacted
the officials of the Canadian Parliamentary Press Gallery to
express his dissatisfaction and the officials had refused to
cancel the appellant’s booking.
[9] Later in the day, the following motion was passed
unanimously by the House of Commons:
That this House order that Ernst Zündel be denied admittance
to the precincts of the House of Commons during and for the
remainder of the present session.
[10] The resolution prevented the appellant from holding his
press conference in the press gallery. Instead, the conference
was held outside the Parliament Buildings on the sidewalk.
[11] The motions judge considered these facts, adverted to the
correct test and, in my view, was correct in striking the
pleading on the ground that the claim was founded on matters of
parliamentary privilege.
[12] In New Brunswick Broadcasting Co. v. Nova Scotia, [1993] 1
S.C.R. 319, the Supreme Court of Canada recognized the
constitutional status of parliamentary privileges in Canada. The
Court reviewed the historical tradition of parliamentary
privileges and stated as follows (at 378-79):
“Privilege” in this context denotes the legal exemption from
some duty, burden, attendance or liability to which others are
subject. It has long been accepted that in order to perform their
functions, legislative bodies require certain privileges relating
to the conduct of their business. It has also long been accepted
that these privileges must be held absolutely and
constitutionally if they are to be effective; the legislative
branch of our government must enjoy a certain autonomy which even
the Crown and the courts cannot touch.
The Parliamentary privilege of the
British Parliament at Westminster sprang
originally from the authority of Parliament
as a court. Over the centuries, Parliament
won for itself the right to control its own
affairs, independent of the Crown and of the
courts. The courts could determine whether a
parliamentary privilege existed, but once
they determined that it did, the courts had
no power to regulate the exercise of that
power. One of those privileges, held
absolutely and deemed to be constitutional,
was the power to exclude strangers from the
proceedings of the House.
The privileges attaching to colonial
legislatures arose from common law. Modelled
on the British Parliament, they were deemed
to possess such powers and authority as are
necessarily incidental to their proper
functioning. These privileges were governed
by the principle of necessity rather than by
historical incident, and thus may not exactly
replicate the powers and privileges found in
the United Kingdom. [Emphasis in original.]
[13] The Court concluded (at 381) that “Canadian legislative
bodies [can] properly claim as inherent privileges those rights
which are necessary to their capacity to function as legislative
bodies. There is no dispute in the case law that necessity is the
test.” While it is up to the courts to determine whether
necessity sufficient to support a privilege is made out, it is
important to clearly delineate the test of necessity. The point
is made at p.383:
The test of necessity is not applied as a standard for
judging the content of a claimed privilege, but for the purpose
of determining the necessary sphere of exclusive or absolute
“parliamentary” or “legislative” jurisdiction. If a matter falls
within this necessary sphere of matters without which the dignity
and efficiency of the House cannot be upheld, courts will not
inquire into questions concerning such privilege. All such
questions will instead fall to the exclusive jurisdiction of the
legislative body.
And further at 384-85:
The courts may determine if the privilege claimed is
necessary to the capacity of the legislature to function, but
have no power to review the rightness or wrongness of a
particular decision made pursuant to the privilege.
[14] At issue in New Brunswick Broadcasting was the power of the
House of Assembly of Nova Scotia to restrict what members of the
public attending the proceedings may do while in the chamber and
to expel them if they refused to comply. More specifically, the
media sought the right to film the proceedings with their own
cameras. The Speaker of the House of Assembly of Nova Scotia was
of the view that access of this sort would interfere with the
decorum and the efficacious proceedings of the House and ruled
against it. The Court held that this was a matter of privilege
and the courts had no jurisdiction to review the decision.
[15] The appellant takes the position that the power to exclude
strangers, which was found by the Supreme Court in New Brunswick
Broadcasting to be a matter of privilege, is restricted to the
chamber of the House and to those strangers who may be viewed by
the Speaker as disruptive of the Assembly’s business. While
those were the facts in New Brunswick Broadcasting, the governing
principles, in my view, have a wider application.
[16] In this case, the Speaker, instructed by a unanimous
resolution of the House of Commons, saw fit to exclude the
appellant from “the precincts of the House of Commons during and
for the remainder of the present session”. The jurisdictional
question for the court is whether it is necessary to the proper
functioning of the House of Commons for the House, through its
Speaker, to have control over its precincts, including the power
to exclude strangers from the premises. The question cannot be
whether, on the facts of this case, it was necessary to exclude
the appellant for the proper functioning of the House, for that
would be an inquiry into the “rightness or wrongness” of the
decision, an inquiry which would render any existing privilege
nugatory.
[17] The “precincts” are defined by J. P. Joseph Maingot, Q.C. in
Parliamentary Privilege in Canada, 2nd ed. (1997), as follows (at
163):
In the parliamentary sense, the precincts are the premises
that the House of Commons and the Senate occupy from time to time
for their corporate purposes. It includes those premises where
each House, through its Speaker, exercises physical control to
enable the Members to perform their parliamentary work without
obstruction or interference.
[18] In my view, it should be self-evident that control over the
premises occupied by the House of Commons for the purpose of
performing the Members’ parliamentary work is a necessary adjunct
to the proper functioning of Parliament. Surely, someone must be
in control of the premises. Who better than the Speaker, who
historically has exercised this control for the House? In my
view, the courts would be overstepping legitimate constitutional
bounds if they sought to interfere with the power of the House to
control access to its own premises. The following comment added
by McLachlin J. in New Brunswick Broadcasting is entirely
apposite to this case (at 389):
I add this. Our democratic government consists of
several branches: the Crown, as represented by the Governor
General and the provincial counterparts of that office; the
legislative body; the executive; and the courts. It is
fundamental to the working of government as a whole that all
these parts play their proper role. It is equally fundamental
that no one of them overstep its bounds, that each show proper
deference for the legitimate sphere of activity of the other.
Traditionally, each branch of
government has enjoyed autonomy in how it
conducts its affairs. The Charter has
changed the balance of power between the
legislative branch and the executive on the
one hand, and the courts on the other hand,
by requiring that all laws and government
action must conform to the fundamental
principles laid down in the Charter. As a
practical matter, this means that, subject to
the override provision in s. 33 of the
Charter, the courts may be called upon to
rule that laws and government acts are
invalid. To this extent, the Charter has
impinged on the supreme authority of the
legislative branches. What we are asked to
do in this case is to go further, much
further. We are asked to say that the
Charter not only removed from the legislative
bodies the right to pass whatever laws they
might choose to adopt, but that it removed
the long-standing constitutional right of
Parliament and the legislative assemblies to
exclude strangers, subjecting the
determination by the Speaker of what is
disruptive of the operation of the Assembly
to the superior review of the courts. I see
nothing in the Charter that would mandate or
justify taking the reallocation of powers
which it effected to this extreme.
[19] In this case, the motion passed by the House of Commons was
no more than an exercise of control over the access by strangers
to the parliamentary precincts. I conclude that the motions judge
was correct in finding that the test of necessity had been met.
Hence, the appellant’s claim is entirely based on matters of
parliamentary privilege and was rightly struck.
[20] I would dismiss the appeal with costs.
(signed) "Louise Charron J.A."
(signed) "I agree M. Rosenberg J.A."
(signed) "I agree J. C. MacPherson J.A."
RELEASED: November 10, 1999 |