February 19, 2018
St-Pierre, Hogue, Healy
Appeal from a judgment of the Superior Court dismissing an application for a declaratory judgment. Dismissed
On January 18, 2011, the appellants visited the National Assembly in the context of the proceedings of a parliamentary committee. They refused to remove their kirpans for the duration of their visit, pursuant to Directive 652-01, which prohibits any bladed weapon from being brought inside the National Assembly, and as a result they could not enter. On February 8, the National Assembly adopted a motion in support of the decision taken by its Direction de la sécurité. The appellants brought an application for a declaratory judgment that the motion was unconstitutional and of no force or effect, that it was not binding and that it had no force of law. The Speaker of the National Assembly stated that the appellants’ exclusion was an exercise of the parliamentary privilege to expel strangers from the Assembly and its precincts, and that it was a decision that fell within the exclusive jurisdiction of the Assembly and was, therefore, immune from review by the courts, even if a protected charter right was being claimed. The trial judge agreed with the position of the Speaker of the National Assembly.
To establish the existence and extent of a parliamentary privilege, it must first be determined whether the issues have been authoritatively established and if the privilege has been recognized. If not, it is for the party raising the parliamentary privilege to establish its necessity (para 28). In this matter, the kirpan’s exclusion by the National Assembly was based on the privilege to expel strangers, a privilege recognized in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly) (S.C. Can., 1993-01-21), SOQUIJ AZ-93111012, J.E. 93-231,  1 S.C.R. 319 that enjoys constitutional status as part of the Constitution of Canada, and hence cannot be abrogated by another part of the Constitution. Moreover, the appellants’ application could only be granted where the existence or scope of this category of privilege failed to meet the necessity test, as established in Canada (House of Commons) v. Vaid (S.C. Can., 2005-05-20), 2005 SCC 30, SOQUIJ AZ-50314502, J.E. 2005-976, D.T.E. 2005T-499,  1 S.C.R. 667. It is not for the Court to determine whether the exercise of this privilege is necessary or to rule on the necessity of this privilege as a category of parliamentary privilege.
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