Monday, 11 June 2012

Day 40 : Parliamentary Privilege

When the trial of the Quebec class action suits against tobacco companies resumed this Monday morning, Montreal was recovering from the Grand Prix weekend that is the traditional start to this city's summer festival season.

This year, the spotlight was on student protests against an event labelled as “sexist, elitist and polluting” and media interest in the students' decision to march nude overtook coverage of the race.

Times have changed. 

Grand Prix 1998
It is not that many years since Montrealers were in the street protesting for the Grand Prix.

In 1997, taxi drivers and other 'small businesses' locked down the city temporarily to voice their opposition to the proposed federal law to end tobacco sponsorship (as a result of a threat of F1 organizers to remove the Grand Prix from Montreal, the ban on sponsorship promotion was delayed by a few years).

In those days, the Players' Grand Prix was an untouchable icon of Quebec tourism. Imperial Tobacco's blanketing of the city with promotion of the event/brand was welcomed by many as a contribution to the festival atmosphere. The City of Montreal and the Government of Quebec twinned their logos with those of a cigarette brand.

This year, almost 14 years since these class actions were filed, the Quebec government chose the Friday of the Grand Prix weekend to slap the tobacco industry with a $60 billion lawsuit.

Picking up where they left off six years ago

It's hard to know whether any of the lawyers assembled in courtroom 17.09 this morning had spent much time at the racetrack on the weekend.

On the one hand, those thick books of authorities don't produce themselves! On the other hand, the parties have had more than 6 years to prepare their arguments for today's hearing on the legally exotic question of parliamentary privilege  and how it relates to this case.

In 2006, the tobacco companies had argued before Justice Carole Julien, among other things, that since parliamentary immunity would make it impossible for some allegations to be proven, such sections of the statements of claim should be struck down. In his decision, Justice Julien reflected a bit on the nature of parliamentary privilege, but left to the trial the decision on any specific parts of the claim.

Today was the day for the debate. The core question was whether the companies can have their words before various parliamentary committees held against them in this trial.

Guy Pratte: defender of public witnesses

Canadian Lawyer 2008
When JTI-Macdonald signed Guy Pratte (of Borden Ladner Gervais) to their team, they engaged one of the more experienced defenders of witnesses before tribunals. "Today I find myself representing people who are embroiled with public inquiries, parliamentary or otherwise," he told the Canadian Lawyer in 2008.

His clientèle is diverse. Before commissions of inquiry, he has represented both Conservative Brian Mulroney and Liberal Jean Pelletier. In court, he has stood for both the Canadian Medical Association and his current tobacco client, JTI-Macdonald.

Mr. Pratte apparently keeps an open mind on the question of parliamentary immunity. Before the Gomery Inquiry he argued that parliamentary privilege should not prevent a witness (Chuck Guité) from being cross examined about his testimony before a parliamentary committee. Today he took a very different position.

Parliamentary immunity cannot be waived (except by Parliament)

Mr. Pratte had the responsibility for expressing the core views of all three companies. It took the bulk of the morning (including many initial interruptions from Justice Riordan) to present their case.

Guy Pratt appealed to the constitutional role of parliamentary privilege and its basis in the 17th century British Bill of Rights provisions that "the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament." As such, allowing this trial to consider statements given by tobacco companies to parliamentary committees would be a threat to democratic principles of freedom of speech for parliamentary witnesses.

It wasn't enough to protect the tobacco companies from repercussion on anything they said to Parliament, Mr. Pratte argued, it was also necessary to prevent all of the preparatory work (like planning documents, records of meetings, etc) from being put on the trial record.  The privilege should be extended to all of those who worked with the tobacco companies and the witnesses they recruited to support their views and these other submissions to Parliament.

The law prohibits the use of any of this parliamentary material to support allegations of liability or to impugne credibility, he said. The fact that the industry circulated their parliamentary briefs was irrelevant, he suggested, as dissemination did not "waive" the privilege. There are limited situations where parliamentary privilege does not apply, he said, but they were not applicable to this case.

Lawyers for the other two tobacco companies supported his views. On behalf of Rothmans, Benson and Hedges, Jean-Francois Lehoux spoke only briefly. The sole purpose of introducing the material was to harm the defendants' position, he said, and therefore directly against the principle of parliamentary immunity.

On behalf of Imperial Tobacco, Suzanne Cote emphasized that any actions taken by tobacco companies after their testimony could not be viewed as weakening their right to immunity."Only Parliament can waive privilege – that means that anything that a witness says or does cannot be seen as a waiver of privilege." 

She outlined the wide scope of records she wanted protected. In addition to any verbatim records (like Hansard), she also felt that immunity extended to documents submitted to committees, any preparatory material, newspaper reports on events in Parliament, and newsletter or other communications material produced by the companies related to their testimony.

Parliamentary immunity can be lost. 

On behalf of the plaintiffs, André Lespérance presented during the afternoon the reasons why the roughly forty documents under question should be admitted to the trial, and the discretion on how to interpret the application of immunity to their contents left to the judge.

Like Mr. Pratte, Mr. Lespérance has perviously dealt with the issue of parliamentary privilege in the Gomery Inquiry.  (He represented the Attorney General of Canada on the unsuccessful attempt by Alphonso Gagliagno to get a Federal Court judicial review of Justice Gomery's ruling that Guy Pratte could not cross-examine Chuck Guité -- it's a small world).

Mr. Lespérance provided a more tempered application of the principles of parliamentary immunity, and to the application of the concept that only Parliament can waive privilege. He pointed to many occasions in which courts cite parliamentary evidence as a context-setting historic fact, including the citation by the Supreme Court of Canada of speeches by Jake Epp. He noted that the tobacco companies had included parliamentary citations in some of their filings and said that allowing reference to some testimony and not others would not be balanced.

The challenge, said Mr. Lespérance, is determining where parliamentary immunity begins and where it ends. He suggested that the case law was not yet well established and that there were gaps ('lacune') that needed to be filled. He noted that the United Kingdom had introduced a Defamation Act to clarify the limits of privilege.

Mr. Lespérance said that the tobacco companies had proactively repeated outside of Parliament what they had said inside, and by doing so they had lost immunity. Under such circumstances, the need for Parliament to waive immunity didn't apply.

Nonetheless, the plaintiffs needed to be able to introduce the parliamentary records to establish historic fact, to help establish the position of the companies and to contribute to the determination of punitive damages.

For most of the day, Justice Riordan had said little other than to clarify page references or document sources. After Mr. Lespérance moved back to his seat, the Judge looked down and asked, almost as an afterthought, if Mr. Lespérance had requested Parliament to waive its privileges in this case. The answer was not entirely audible to the back of the room, and may not have been to the judge either, for he asked again:

Justice Riordon: It strikes me it might be in your interests to do so (ask Parliament to waive privilege). Have you?
André Lespérance: No.

Renunciation and repetition different concepts

The federal position was represented by a new face to the trial, Mr. Jean-Robert Noiseux from the Attorney General's office. The federal government supported the position of Mr. Lespérance and repeated the view that while only Parliament can renounce parliamentary privilege, once a person decides to repeat outside the House of Commons what they said inside, they lose the benefits of the privilege.

He provided additional authorities, including the memorable case of André Ouellet, then Minister of Consumer and Corporate Affairs. (Mr. Ouellet was held in contempt of court after repeating outside the House his view that a judge's acquital of sugar companies on charges of price fixing was a "silly decision".) Mr. Noiseux pointed out that the courts had ruled that MPs mailings to constituents ('householders') did not benefit from parliamentary immunity. As Mr. Lespérance had done, he went through specific documents in question to suggest why each should be admissible. Mr. Noiseux concluded by recommending that decisions be reached on a document-by-document basis.

During the replies from each side that closed the hearing, Guy Pratte cautioned against a blanket introduction. Suzanne Coté characterized repetitions outside the House as being extensions of parliamentary testimony, and therefore also privilege. Mr. Lehoux forcefully, but briefly, expressed his views that the documents in question be struck down immediately.

In this closing section, Justice Riordan hinted that a document-by-document decision may be required. "It’s a document by document process...  we can't really do anything else."

Filling the void

In making his ruling on Chuck Guités testimony, Justice Gomery had noted that 'One of the difficulties I have in deciding whether to maintain or dismiss the objection is that there is no Canadian case directly dealing with the issue."  Whatever the outcome of today's hearing (including the inevitable appeals!), it will help fill that void.

A little light reading.

That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament. English Bill of Rights, 1689

Tomorrow, Mr. Jacques Woods will return to the stand.