By Prof. Anatole French
Professor of Laws
Law Society of Up Canada University
Ontario K1S A5S
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.