The difficulty experienced by the lower courts in attempting to reconcile the imperative nature of the provisions of the Charter with the necessity of full enjoyment, by the legislative assemblies, of the parliamentary privileges prevailing in our system of parliamentary democracy is also reflected in the Supreme Court decision Donahoe.
After quoting the definition of parliamentary privilege given by Joseph Maingot, Chief Justice Lamer begins by stating that "it is important here to distinguish the Houses of Parliament and the legislative assemblies from the broader legislatures of which they are a part", (43) and that "the legislature cannot hold and exercise parliamentary privileges, as such privileges include the rights of the members of the legislative assembly as against the Crown's representative.
Lastly, the Chief Justice refers to Part V of the Constitution Act, 1982, which deals with the constitutional amendment procedure and which refers to resolutions of the Senate, the House of Commons and the legislative assemblies of each province, "thereby distinguishing between resolutions of the House and enactments of the legislature".
69) Rather, the majority considers that the Charter applies to legislative assemblies, and that the tradition of curial deference should be applied only to the exercise of inherent privileges, on the grounds that those privileges have constitutional status and that to do otherwise would go against the basic rule "that one part of the Constitution cannot be abrogated or diminished by another part of the Constitution".
Next, the majority decision reintroduces the concept of inherent privileges, for no other reason than to reduce the impact of its decision to bring legislative assemblies under the application of the Charter.
Donahoe has undoubtedly resulted in a reduction in the scope of the actions of legislative assemblies not subject to the Charter, since that scope will henceforth be determined on the basis of inherent parliamentary privileges.
However, if the Charter applies to legislative assemblies, will it also apply to an action taken by a member that oversteps the bounds of freedom of speech?
Although we must applaud the intention of the Supreme Court majority to respect the independence of Canada's legislative assemblies as far as possible by limiting the opportunities for judicial review under the Charter, the hazardous nature of the line of reasoning followed to achieve this result which, we might add, provides no guarantees, can only be deplored.
We believe that the best way of preserving the independence of Canada's legislative assemblies and of continuing the long tradition of curial deference, despite the adoption of the Charter, lies in the approach adopted by Chief Justice Lamer.
Admittedly, the Chief Justice Lamer used certain specific sections of the Constitution to support his argument but, far from basing his approach on them, used them merely to illustrate the fact that, despite its inclusion of the words Parliament and legislature, section 32 is not intended to subject the legislative assemblies to the authority of the Charter or to set aside a highly desirable equilibrium between the courts and the legislative assemblies.
If the Charter does not apply to the legislative assemblies, there is no reason to believe that it becomes applicable solely because the action taken by a legislative assembly is founded on a privilege having its source in a statute unless, as discussed above, the action was "taken under statutory compulsion".