Ezra On Pankiw: A Quick Fisking

Ezra's views on the Jim Pankiw case are unsurprising. I will just note one of the howlers in his Natty Post column today:

Pankiw can be prosecuted for spreading "discrimination," every MP is at risk. Not a day goes by when MPs don't offend one group or another. We allow it; we expect it; in fact, we give MPs more freedom than any other Canadians, even exempting their debates from defamation law, on the liberal theory that all ideas should be heard, and in the clash of views, the truth will emerge and the country will be better off. It's called parliamentary privilege, and it goes back centuries. It's one of our ancient civil rights, designed to protect the people's representatives from political interference from the King.

Whether or not Pankiw "wins" his trial is irrelevant. He's already lost, and so have we. The message is loud and clear: The CHRC has ended parliamentary immunity.

Mr. Pankiw has already attempted to play the parliamentary immunity card, to which CHRT chairperson Grant Sinclair responded as follows:

[14] Nor does it appear to us that the PSA, and s. 52.6 in particular, extends the scope of any privilege or immunity from which Members may benefit. Parliamentary privilege provides Members with an absolute immunity from civil or criminal prosecution when speaking in the House of Commons or engaged in a proceeding in Parliament (see J.P.J. Maingot, Parliamentary Privilege in Canada, 2d ed). Over the years, the assertion of parliamentary privilege has varied in its scope and extent. But as the Supreme Court of Canada noted in Vaid (at para. 23), a narrower concept of privilege has developed in more recent times. The Court referred to a 1971 ruling of the Speaker of the House, who stated that parliamentary privilege "does not go much beyond the right of free speech in the House of Commons and the right of a Member to discharge his duties in the House as a member of the House of Commons".

Since Mr. Pankiw is not being charged of reading the content of his householders (pamphlets) from the floor of the HOC, parliamentary immunity does not apply to him.

This, by the way, is the same line of reasoning behind Harper's law-suit against the LPoC. And I'm sure the Ez knows just how far privilege extends. He wrote back in February:

Being called a law-breaker is about the worst defamation you could say about someone, especially a lawyer like me. It's a complete fabrication, factually inaccurate and completely unfair. But, because it was uttered in the House of Commons, it is protected by "absolute privilege". Ms. [Raymonde]Folco is immune to a lawsuit.

Today my lawyers fired off this letter to her. And, until she repeats her accusations outside of Parliament, the letter is all that can be done, legally.

And, just as an aside, Ezra writes:

The suit against Pankiw is clearly unconstitutional. In 1990, the Supreme Court of Canada ruled that human rights commissions could only pursue "hate" cases against Canadians whose messages were pure evil -- they were explicitly forbidden from touching political speech.

Here he is referring to CHRC vs. Taylor, [1990] 3 S.C.R. 892. But, of course, as I pointed out yesterday, this case referred exclusively to the constitutionality of Section 13(1) of the Canadian Human Rights Act. Pankiw is being charged with violating sections sections 5, 12, and 14. So while Levant's argument may be relevant to some other case, it is not relevant to this one.