By Prof. Anatole French
Professor of Laws
Law Society of Up Canada University
Capital City
Ontario K1S A5S
[Guest blogger]
As a legal academic, I have been called upon to review the recent
(August 24, 2012, http://canlii.ca/t/fsg9t) ruling of Regional Senior Justice
Charles T. Hackland of the Ontario
Superior Court of Justice in the matter of Guergis v. Novak et al., and to articulate my review in plain
language understandable by a discerning public. Senior academics such as myself
have academic tenure, which is why we frequently provide cutting edge
criticisms of current court rulings of public interest where others, such as
journalists and their editors, might not be so daring.
The main facts in the case, concerning Prime Minister Stephen Harper,
are simple. The Prime Minister, through his senior officer Mr. V. Raymond
Novak, Principle Secretary, wrote to the RCMP to suggest that a criminal
investigation be made of, at the time, Member of Parliament, Minister, and
member of the caucus of the Conservative Party of Canada, Helena Guergis. The
letter alleged: an existence of evidence relevant to fraud, extortion, and
prostitution, that the writer and the PMO did not have first-hand knowledge of
the said evidence, that a named third party (private investigator Derrick
Snowdy) was available to provide the said evidence, and that the PMO had not
communicated directly with Mr. Snowdy.
The RCMP found no evidence worthy of acting upon, did not even question
Guergis, and closed the case. If the allegations in the Novak letter had any
truth then the RCMP’s reaction should be of great concern to all Canadians.
The plaintiff (Guergis) claims that the entire episode was designed to
impair her reputation sufficiently to remove her and/or justify her removal
from all her positions, including her party candidacy in the Electoral District
of Simcoe-Grey.
On the face of it, the plaintiff’s claim is not outlandish. If it can
be proven then the actions of the defendants would constitute a conspiracy to
harm, and other torts including defamation and misfeasance in public office.
That is, if the claim can be proved, then there was illegal behaviour on the
part of the defendants and just remedy to the plaintiff should follow.
This was a (Harper et al.) defendant’s
motion to strike the (Guergis) plaintiff’s pleadings (or claim to the Court).
Therefore, the question before the Court was: Assuming the plaintiff’s alleged facts
to be true, should the claim be allowed to proceed, in that it could possibly
lead to some just remedy in law? In legal jargon: “The court must assume that
the alleged facts can be proven, and ask whether it is “plain and obvious” that
the Statement of Claim discloses no reasonable cause of action?”
To the lay person, it is obvious that of course the action should be
allowed to proceed, in order for justice to be found. Ah, but the legal
landscape in the eyes of Justice Hackland is sufficiently rocky for there to be
a deep enough crevice that this action should never see the light of day…
Hackland’s argument is as follows. A decision of a Prime Minister to
can a Minister, remove a party candidate, and so on, is a decision for which
the Prime Minister is not answerable to the courts. It is a political decision,
the merits of which cannot be questioned by the courts. This established principle
is called “Crown Prerogative” or, depending on the type of decision,
“Parliamentary Privilege”.
Since the decisions at issue were entirely protected under say Parliamentary
Privilege, Hackland argues, then the Court has no jurisdiction to examine the
circumstances or reasons for the decisions and the case should not be heard:
The pleadings must be struck.
Hackland argues that to allow a Prime Minister’s privileged decisions
to be questioned in the courts on the basis of mere allegations of illegal
behaviour would render the principle of say Parliamentary Privilege meaningless
and, therefore, the practical operation of the legislature impossible. To the
lay person, this would mean that illegal behaviour as part of a Prime Minister
exercising his/her privileged authority is not subject to the rule of law.
Hackland arrives at this nonsensical conclusion by lack of discernment.
A correct analysis would discern all the legitimate political dimensions of a
Prime Minister’s privileged decisions, which cannot be questioned by the courts
under the true principle of Parliamentary Privilege, from any illegal
components of a Prime Minister’s privileged decisions, which must be subject to
the rule of law. In this correct analysis, the just remedy may or may not
include reversals of decisions, even if the illegal behaviour is proved. But the
plaintiff has a right that other remedies also be considered in order to
achieve justice.
There is no case law that states that illegal behaviour, involving the
misuse of a public officer’s power and influence, can be shielded from the
court’s consideration using Parliamentary Privilege. The case law cited by
Justice Hackland (Canada (House of
Commons) v. Vaid) is consistent with a Parliamentary Privilege which
protects political and legislative executive decisions from judicial review,
not a Parliamentary Privilege which shields executives from the law in
performing illegal acts.
To this observer, Hackland’s error of discernment and broad brush
approach depriving the plaintiff of access to justice is so egregious that it
needs to be questioned in the public sphere. Such questioning, in Canada, is
protected by a Charter guarantee to the
Open Court Principle and constitutes an exercise of democracy.
