The Samson Cree Nation's attempt to call Indian Affairs Minister Robert Nault and Prime Minister Jean Chretien as witnesses in a landmark billion dollar trust monies case against the Crown has been rejected by a Federal Court judge.
Justice Max M. Teitelbaum handed down his decision in late August. Samson Cree Nation lawyer James O'Reilly filed an appeal almost immediately.
In his decision, the judge upheld the concept of parliamentary privilege. Lawyers representing Nault and Chretien had raised the privilege as a reason why they should not be called to give evidence in the trial.
O'Reilly said his appeal will explore the idea that parliamentary privilege as it currently exists is an outdated concept that prevents accountability and frustrates the search for justice. He believes he made that point in front of Justice Teitelbaum, but said the Federal Court judge wasn't ready to listen.
"We submitted authorities galore, well over 100. And we went over the whole history of this and Justice Teitelbaum didn't consider a lot of what we put before him," the lawyer said.
He noted that the judge's decision revolved around the necessity and importance of allowing lawmakers to be available to perform their important function.
"But what privilege is really necessary for parliament to function," O'Reilly asked. "Are you going to tell Samson that, when you have a quorum of 20 people in parliament, that the presence of each and every one of the members at all times is absolutely indispensable for parliament to carry out its job? I don't think so."
The lawyer said he could see parliamentary privilege outweighing the duties of a citizen to testify if there was a national emergency that required all parliamentarians to return to Ottawa.
"But this one gives them a blanket immunity and we say that doesn't make any sense," he said.
The privileges that are extended to parliamentarians have their roots in practices developed centuries ago, he said. Windspeaker asked if parliamentary privilege could be seen as a relic of the colonial era.
"Even pre-colonial," he answered. "And it sets up a real double standard. The chief is compellable. They can call him at any time, apparently. But an MP or a senator . . . be clear on this. This privilege is a parliamentary privilege. It applies to every sitting senator and every sitting member of Parliament. Being a minister or prime minister has nothing to do with this privilege.
Everybody, including the opposition MPs, they can say, 'We're immune from court processes.'"
Even if an MP is the only witness to a crime, that MP could, in theory, refuse to attend court and that would potentially allow a criminal to go unpunished.
"He can just say 'No, I'm sorry I'm an MP' and that's it," O'Reilly said.
O'Reilly said the privilege seems to apply almost all the time. During breaks when Parliament isn't sitting, it is still considered to be in session. The privilege applies for 90 days before and after Parliament is in session.
"So all summer long, parliament was in session. When Paul Martin was running around hosting barbecues and so on, he had parliamentary privilege," he said.
O'Reilly believes the judge did not give adequate consideration to a very complex area of the law that was central to his argument. He will re-emphasize that on appeal.
He believes the judge did not give his argument about the difference between a charter right and a constitutional right the consideration it deserved.
He argued that Aboriginal rights are not subject to normal limits.
"So you've got a limit, which really tries to deal with competing rights and rights aren't absolute. So if I've got a right of free speech, I can't go into my neighbor's house and start shouting and screaming and say I'm exercising my right of free speech," he said. "With Section 35 rights, they're outside the Charter. So it's like having a second Charter dealing only with rights of Aboriginal peoples. That's part two of the Constittion Act, 1982, which is Section 35."
Aboriginal rights are not subject to the same limits that other basic rights are because courts have ruled that Aboriginal rights can only be balanced against competing rights if there is a clearly defined, justifiable reason to do so, he said.
"But, obviously, as the courts have said too, these Aboriginal and treaty rights aren't totally absolute and don't automatically take precedence over any other rights. So they say, "OK, you can infringe or impair or trample upon these rights. But under what conditions?' Not under the conditions that can be demonstrably justified in a free and democratic society. You have to have a valid legislative objective, a valid legislative purpose and you have to take into account certain other things."