The recent dismissal of a criminal matter involving a sitting MLA as a vital witness is a prime example of why the rule of parliamentary privilege against testifying in a court needs to be updated.

The law in Canada is relatively clear as to the current status of the right of an MP (or MLA) to invoke the right to not answer a subpoena to testify. This is an ancient privilege that has been recognized, in one form or another, in the United Kingdom’s House of Commons since the adoption of the 1688 Bill of Rights, in which many of the current privileges were entrenched into law. These rules are not specifically defined in writing, but are considered unwritten rules that define many legal principles in our legal system.

By virtue of these privileges existing in 1867, when Canada became a country, these privileges are now considered as constitutionally protected in this country. The only means by which they can be amended or revised is to have an Assembly or Parliament pass a law that entrenches a code of privilege that clearly explains and puts limits on such privileges.

“Parliamentary privilege has an historic purpose – to protect the independence of parliament and to prevent interference in its work – that is still relevant today. But not all of the old privileges are still relevant as they are currently defined.”

The intent of parliamentary privilege is a honourable one. In order for a parliament to have the ability to fully exercise its constitutional mandate of law making and oversight of the executive branch of government, it must be autonomous, this preventing any undue influence or coercion that might limit its ability to make decisions or to seek answers to key questions.

Therefore, as an institution, a parliament has the right to subpoena witnesses to appear before a committee. It can also compel the production of documents that it thinks are vital to a committee’s investigation. Witnesses that appear before a committee are extended parliamentary privilege to ensure their testimony is protected from future court actions.

Individual MPs and MLAs are also provided privileges. The most common, and arguably the most important, is the right to speak freely during debates and committee proceedings without fear of civil or criminal action for libel or slander. This right was created to prevent the Executive or others from using the courts to silence MPs from raising issues.

Along the same line as freedom of speech, MPs also have certain rights with regard to not being detained or prevented from attending in parliament to perform their functions as legislators. These privileges include the right to not be a juror and, most importantly recently, the right to not have to testify if subpoenaed.

“The current MLA in Nova Scotia who invoked this privilege was within his rights to do so. However, this does not mean the current law is adequate or defensible. Other jurisdictions with similar rules have recently amended or recommended changes to limit this privilege.”

In Canada, the right of an MP or MLA to refuse to testify in a court matter is well entrenched. Recent court decisions have confirmed that if a parliament (provincial or federal) is “in session”, an MP can refuse to testify if subpoenaed. “Session” means more than a parliament that is sitting. It means a parliament that has not been dissolved (for an election) or prorogued (as happens from time to time). Therefore, even if a parliament is not currently sitting and is not expected to sit for weeks or months, an MP or MLA can still refuse to testify in a court, on the basis that the matter might interfere with their right to attend parliament for debates and committee meetings.

The current MLA in Nova Scotia who invoked this privilege was within his rights to do so. However, this does not mean the current law is adequate or defensible. Other jurisdictions with similar rules have recently amended or recommended changes to limit this privilege.

In Australia, the Parliamentary Privileges Act of 1987 is clear in stating that the right to avoid testifying, when subpoenaed, is limited to when the parliament is sitting and five days before and after a sitting. This would allow for the compelling of testimony by an MP when the parliament is on recess, as is the majority of the time in Nova Scotia.

New Zealand recently amended its Parliamentary Privileges Act and has stated that if an MP wants to invoke the privilege of not testifying, the MP must seek the authorization of the Speaker of Parliament, who has the final word on whether or not the subpoena would interfere with the work of the MP in parliament.

In the United Kingdom in 2012, a study by the Government recommended that the privilege to avoid testifying in court should be removed, as the modern court system already had provisions to recognize the schedules of officials who may have limits on when they can testify.

A 2015 report from the Canadian Senate’s Committee on Rules, Procedures and the Rights of Parliament provided a comprehensive review of current parliamentary privileges in Canada. The report recommended that the privilege to refuse to testify should be revoked, given that it is now primarily used by MPs and Senators to avoid controversial court proceedings, then as it was originally intended, which was to protect MPs and Senators from interference in their role as legislators.

Recent examples in Canada seem to point to the fact that this privilege is being abused. In 2008, then Federal Heritage Minister, Josee Verner refused to testify in a court case in which her husband was being sued by other shareholders. More recently, in 2015, then Prime Minister Stephen Harper, invoked the privilege to avoid testify at a libel suit filed against him and his former Director of Communications, Jason MacDonald.

And now we have a Nova Scotian MLA who has invoked this privilege to avoid what is likely embarrassing testimony, even though the House of Assembly is not currently sitting and, as a Minister (as he then was) he was not able to sit on any committees that might be meeting between sittings.

Parliamentary privilege has an historic purpose – to protect the independence of parliament and to prevent interference in its work – that is still relevant today. But not all of the old privileges are still relevant as they are currently defined. This recent episode in Nova Scotia should be an opportunity for the House of Assembly to review its current rules with regard to privilege and to consider options that allow it to protect MLAs that require such protection, but to ensure such a privilege is not used to avoid political scandal.