Ontario Court Judge Finds Permanent, Lifetime Ban Is Protected by Parliamentary Privilege and Immune from Charter of Rights and Freedoms
Case is unique inasmuch as it marks the first time that a speaker's privilege has been used as the basis for a court prosecution.
"It's certainly extending the power of the Speaker in a way that we've never seen before in our constitutional history." Attorney John Norris
Toronto, December 20, 2004 -- In a decision which does not bode well for the civil rights of demonstrators, an Ontario Court judge has concluded that then-House Speaker Chris Stockwell was justified in issuing his lifetime ban against five members of Toronto Action for Social Change because such a draconian measure was "within the bounds of the recognized category of parliamentary privilege of the 'ejection of strangers from the House and its precincts' when he issued the bans."
"I find that I do not have the jurisdiction to review the actions of the Speaker in any manner, including under the Charter of Rights and Freedoms," Judge J.W. Bovard wrote.
Despite a Crown request to issue $500 fines against the five members of TASC, the defendants argued for and won an absolute discharge. The group plans to appeal the decision to Ontario Superior Court.
The latest judicial decision is part of a six-year battle that began with a protest against the Harris government's severe cuts to social programs. Water-soluble stage blood was thrown on the outside walls of the Ontario legislature on the third anniversary of the 21.6% cut to social assistance on October 1, 1998. Five of those attending the protest were banned for life; two of those arrested, who had not been part of a series of prior protests at Queen's Park, were not banned. The latter fact led us to conclude that those banned were clearly singled out for our lengthy history of persistent and well-publicized legislative protests.
Members of TASC had argued that the crucial question before the courts was whether the Speaker, under the guise of parliamentary privilege, has absolute, unaccountable power and immunity so that any decision that he makes -- and the consequences which flow from that decision -- are not reviewable by the courts either on the merits, or within an inquiry into the scope of his parliamentary privilege. Such absolute power opens the door to abuses of power. Indeed, parliamentary privilege in this case was used to uphold an unconstitutional end, denying a group of people the right to attend at Queen's Park for ANY purpose, on pain of arrest, for almost six years.
Judge Bovard argues that this use of parliamentary privilege was necessary to ensure the proper functioning of the legislature and ensure the dignity of the house, even though there was no disruption to the legislature, and even though the cuts which were being protested had resulted in dozens of deaths to that moment.
Bovard's reasoning is dangerous and reminiscent of those earlier liberal judges who, though concerned about the potential violations of institutions such as slavery or denial of the vote to women, nonetheless upheld them because they had been around for a long time and were deemed by the powers of the day as necessary to the "proper and dignified" functioning of those societies.
"The evolution of the human rights law, as seen for example in The Charter of Rights and Freedoms, has not caused Parliament to modify this privilege to allow review of it under the Charter or any other human rights legislation," Bovard declared. "I conclude that to date, the privilege of 'ejection of strangers from the House and its precincts' is in force as it always has been and I do not agree that the Charter or any other human rights legislation can modify it."
During the trial, one of the defendants had asked whether, if the Speaker were anti-Semitic and banned Jews from the legislature, such a decision would be protected by Parliamentary Privilege. The Speaker's representative refused to answer the question and the judge refused to allow it to be repeated, perhaps realizing that the only answer was "yes."
Indeed, when power is unaccountable and unreviewable, such arbitrary and draconian measures as lifetime bans are likely to result.
Bovard ignored a wealth of case law which contains warnings about such abuses. As one judge put it in the Supreme Court's Operation Dismantle case, "Men can exaggerate the extent of their interests and so can the Crown. The servants of the Crown, like other men animated by the highest motives, are capable of formulating a policy ad hoc so as to prevent the citizen from doing something that the Crown does not want him to do. It is the duty of the courts to be as alert now as they have always been to prevent abuse of the prerogative."
Another Supreme Court case, Little Sisters, states, "Unfortunately it would seem that whenever the Crown is granted statutory power that can be used abusively then, on occasion, it will indeed be used abusively."
Perhaps most important was Bovard's rejection of the reasoning in the Federal Court of Appeal's ruling on the Vaid case, concerning a driver for the federal House Speaker whose claim of racial discrimination as the basis for a job dismissal was, in the Speaker's reasoning, not capable of review since the reasons for the firing were protected by Parliamentary privilege.
The Vaid case stated that blind obedience to the use of parliamentary privilege "would also give provincial legislatures and Parliament permission to indulge in human rights violations under the disguise of a properly-functioning legislative body. Furthermore, it would eliminate an important incentive for parliamentarians to act in accordance with the principles of equality and human dignity enshrined in the Charter and human rights legislation.
Later in the Queen's Park ban decision, Bovard says "once I decide that the Speaker was acting within the ambit of a recognized parliamentary privilege when he issued the bans, his actions are beyond Charter scrutiny."
After Bovard gave today's ruling, which resulted in convictions for the Queen's Park Five -- Matthew Behrens, mandy hiscocks, Father Bob Holmes, Donald Johnston and Sandra Lang -- he invited submissions on sentencing for defying the ban. Crown Counsel Tom Galligan said that we had acted "unreasonably under the circumstances" when we defied the ban on Martin Luther King Day of 1999, and asked the judge to impose $500 fines on the defendants.
"$500 is 20 dollars less than what thousands of single people were forced to survive on monthly after the Harris government's first round of cuts in 1995," countered defendant Matthew Behrens.
Asked to speak to the issue of punishment for conviction, Behrens stated: "I don't believe this is a question for punishment. I think that six years of being unable to protest at Queen's Park on pain of arrest while their policies cause the bleeding of the people of Ontario is punishment enough. We have made a contribution to the functioning of democracy by doing the research and spending the time debating the issues here in court, trying to engage the powers that be in finding a just solution to the issues at hand and those issues still affecting people, such as some in the court this morning, who are still banned from Queen's Park.
"Finally, as anyone stepping around the frozen bodies of the homeless this frigid morning can see, the legacy of the policies that led us to the October 1, 1998 protest and the subsequent ban continues to remain a blood-soaked one.
"I think I can say, certainly on my behalf and on behalf of my fellow defendants, that I am proud of the protest which led to the ban, of the history of nonviolent protests which led to that ban, and proud of our defiance of that ban and upholding of the Charter of Rights and Freedoms on Martin Luther King day.
"Regardless of your ultimate decision, I will continue to work against the arbitrary and unaccountable abuse of power, whether by a Speaker at Queen's Park in banning demonstrators or an immigration department jailing Muslims on secret evidence for years on end -- for it is in the latter instance that we see the ultimate path of where all this could lead. I therefore propose an absolute discharge."
Asked whether his financial situation allowed him to pay the $500 fine, Behrens responded, "regardless of my income, my conscience would not allow me to pay it."
Defendant mandy hiscocks also addressed the court, declaring: "You made it quite clear in your decision that people who work at Queen's Park have special privileges. Obviously, we knew that already. How many of them are men? How many of them are white? How many of them are homeless? But on top of all of that, they're also not even bound by the Charter of Rights and Freedoms. And according to this court, that's just fine. That's as it should be.
"Parliamentary Privilege is meant to keep the courts and the legislature separate, but in fact they teamed up quite nicely against the public in this case.
"The Constitution is law, and by proceeding with these charges the Crown has ensured that the Speaker remains above it. I refuse to help fund the Attorney General to uphold this system of privilege and inequality. I will not under any circumstances pay any fine, and I propose a discharge."
Father Bob Holmes told the judge, "I am disappointed that this court does not believe it has the jurisdiction to review the actions of the Speaker of the House in any manner.
"The Judgment states, 'The Speaker's duty is to ensure that nothing occurs within the Legislative Precincts which impedes the proper functioning of the Legislative Assembly.' It is not his duty to curtail creative, nonviolent public witness drawing the attention of both the legislators and the public to the needs of our poorest citizens in Ontario.
"Far from impeding the proper functioning of the Legislative Assembly, we sought to inform the Legislative Assembly so that it could in fact function properly.
"I believe the decision to ban us from Queen's Park was made out of fear that we might well expose the fact that the Legislative Assembly was in fact functioning in an improper manner with respect to its most vulnerable citizens.
"Finally, I too would propose the suitability of an Absolute Discharge in this case given the importance of raising this issue in the courts for the people of Ontario."
Attorney John Norris, representing Donald Johnston and Sandra Lang, noted "this matter is very dated, it is the second trial this group has faced after being acquitted the first time, with the second trial occurring only because of a Crown appeal." Norris said our efforts to have the ban lifted are relevant given the significant amount of work that went into getting the ban removed before defying it. "This was clearly an attempt to create a test case, and this was the only way to litigate the issues," he said in reference to the defiance of the ban.
Galligan responded that he did not feel the efforts we made to lift the ban were in any way significant, claiming TASC "made it difficult or impossible for the Speaker" to deal with ways of removing the ban, adding TASC wanted to be the one that made the rules.
Judge Bovard stated that sentencing is always difficult,, and noted that the group did not breach the ban "out of malice or a careless disregard for the law," and noted that the only way we could address the ban was by challenging it and getting it into the courts.
He said members of the group were never violent and had a history of doing good community work. "They care about the disadvantaged and bear no ill-will to anyone even if they disagree with them." Bovard said that the group were not motivated by selfish reasons and that protests were "a crucial dynamic of a democratic society," adding such nonviolent protests "strengthen our society."
"The ban was a serious and heavy consequence for the group," he noted before granting the absolute discharge.
Members of TASC are determined to take the fight against the arbitrary abuse of power represented in the lifetime ban to the next level, and to the Supreme Court if necessary. As the Globe and Mail reported attorney John Norris saying outside of court, the case is unique inasmuch as it marks the first time that a speaker's privilege has been used as the basis for a court prosecution. "It's certainly extending the power of the Speaker in a way that we've never seen before in our constitutional history."
There will no doubt be significant costs associated with such an appeal. Anyone wishing to contribute towards those costs can send cheques to Toronto Action for Social Change at PO Box 73620, 509 St. Clair Ave. West, Toronto, ON M6C 1C0. Put "Queen's Park Ban" in the memo portion of the cheque.
Report from TASC, www.homesnotbombs.ca
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