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Slithering through the loophole


Months ago, during the Mike Duffy trial, a number of journalists found themselves caught up in one of those “how many angels can dance on the head of a pin” academic arguments: while then Prime Minister Stephen Harper hadn’t been called as a witness, if he was, would he be able to use parliamentary privilege to avoid testifying?

The whole premise is moot: Harper hasn’t been called as a witness.

But the whole issue is an interesting one. The argument is that parliamentary immunity is needed so that parliamentarians, first and foremost, serve the legislative assembly.

The clearest recent explanation of how the law applies came when the Ontario Court of Appeal ruled that then Industry Minister John Manley couldn’t be compelled to testify in a civil action in 2004: “The state of the law in Canada is that a member of Parliament is immune from testifying as a witness in a court proceeding during a parliamentary session for 40 days after its conclusion and for 40 days before the commencement of a new session. Whether the privilege so defined is necessary to the proper functioning of Parliament today is a question for Parliament, not the courts.”

So, if it’s moot, why raise it now?

Well, because a Nova Scotian politician has decided to use parliamentary immunity to dodge testifying in a case.

Many of the provinces have legislation for MHAs that simply mirrors the privileges of federal MPs.

This week in Halifax, Nova Scotia’s then-environment minister Andrew Younger refused to attend court where he had been subpoenaed to appear as a witness in an assault case, and cited just that kind of privilege.

Liberal staffer Tara Gault was charged with attacking Younger. When the case was called Wednesday, Younger’s lawyer said Younger was refusing to appear, and claiming privilege as an MLA.

As a result, the case was dropped, with Judge Greg Lenehan saying the Crown would not be allowed to proceed using the minister’s statements to police as evidence: “The complainant is exercising a privilege, a privilege few people in the country can claim. … But when an MLA chooses not to testify, it cannot be the law that we then allow a trial to proceed based only on a police statement by a politician.

“If he was any other citizen, a warrant could have been issued for his arrest. I have no authority to do that.”

The suggestion is that Younger did not testify to protect his own reputation from the tawdry details of what has been described in the Nova Scotia media as a domestic assault case — but what on Earth does that have to do with his rights as a provincial parliamentarian?

The simple answer is, “Nothing.” Younger is merely exercising a “get out of court free” card that very few people in the country have, and that even the Ontario Court of Appeal, while affirming it, questions.

It is a holdover from another time, an arcane rule from when legislators had to be protected from state abuse.

It’s unfortunate that at least one legislator has chosen to abuse the privilege. Keep in mind: an ordinary citizen acting as Younger did would have been arrested. Younger’s own party agreed, tossing him from his minister’s job and turfing him out of caucus late Thursday.

Lawmakers should not be able to set themselves above the law.

Frankly, it makes their laws a joke.

 

Russell Wangersky is TC Media’s Atlantic regional columnist. He can be reached at russell.wangersky@tc.tc

Twitter: @Wangersky.

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