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Parliamentary Privilege, the Rule of Law and the Charter After the Vaid Case

Canadian Journal of Administrative Law & Practice, Vol. 20, No. 2, pp. 117-140, 2007

10 Pages Posted: 4 Feb 2008 Last revised: 22 Nov 2015

Evan Fox-Decent

McGill University - Faculty of Law

Date Written: 2007

Abstract

Parliamentary privilege immunises certain activities of legislative bodies and their members from the ordinary law and judicial scrutiny. The rule of law, on the other hand, insists that everyone - including public officials - is subject to the law. Moreover, the rule of law is usually understood to involve judicial review of executive rather than legislative action. Thus, parliamentary privilege seems to establish a public sphere that is beyond the rule of law. Notwithstanding the tension that appears between these two ideas, I argue that parliamentary privilege and the rule of law, properly understood, support rather than oppose one another. However, the ideas can be reconciled only if we reject the jurisdictional and categorical approach to parliamentary privilege adopted recently by the Supreme Court of Canada in Canada (House of Commons) v. Vaid [2005] 1 S.C.R. 667, 2005 SCC 30. This approach should be rejected because it trades on an unsustainable distinction between review of the scope of an asserted privilege and review its actual exercise, with the Court finding that only issues of scope are subject to review, even if important human rights are at stake.

Keywords: parliamentary privilege, rule of law, judicial review

Suggested Citation

Fox-Decent, Evan, Parliamentary Privilege, the Rule of Law and the Charter After the Vaid Case (2007). Canadian Journal of Administrative Law & Practice, Vol. 20, No. 2, pp. 117-140, 2007 . Available at SSRN: https://ssrn.com/abstract=1089212

Evan Fox-Decent (Contact Author)

McGill University - Faculty of Law ( email )

3644 Peel Street
Montreal H3A 1W9, Quebec
Canada

HOME PAGE: http://www.mcgill.ca/law/about/profs/fox-decent-evan

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