Letter from the Clerk of the Legislative
Assembly of New Brunswick
Thank you for your letter of 7 May 1998, pertaining
to the work of the Joint Committee on Parliamentary Privilege.
In practice, the Legislative Assembly of New
Brunswick has similar privileges to those enjoyed by the other
provincial legislative bodies within Canada. New Brunswick has
always claimed as inherent those privileges which are traditionally
enjoyed by the UK and Canadian House of Commons.
Although the Legislative Assembly and its Members
have enjoyed those privileges traditionally enjoyed by other commonwealth
parliaments, New Brunswick has not legislated those privileges
in statute form.
The New Brunswick Legislative Assembly Act
does, however, make reference to the privileges accorded to
the Legislative Assembly and the committees and members thereof.
Subsection 1(1) of the Act states as follows:
1(1) In all matters and cases not specifically
provided for by any Statute of the Province, the Legislative Assembly
of New Brunswick, and the committees and members thereof respectively,
shall hold, enjoy and exercise such and the like privileges, immunities
and powers, as are held, enjoyed and exercised by the House of
Commons of Canada and by the respective committees and members
thereof; and such privileges, immunities and powers, as are held,
enjoyed and exercised by the House of Commons of Canada and by
the respective committees and members thereof; and such privileges,
immunities and powers of the Legislative Assembly shall be deemed
to be and are part of the general and public law of New Brunswick,
and it shall not be necessary to plead same, but the same shall
in all courts of justice in this Province, and by and before all
justices and others, be taken notice of judicially.
As well, at the opening of each new Legislature,
the Speaker of the House claims the traditional rights and privileges
of the Assembly. The assertion of the privileges of the House
is valid for the full term of the Assembly and therefore need
not be repeated by a Speaker who is elected to fill a vacancy
occurring in the office during the life of an Assembly.
You have also probably been made aware of the
1993 Supreme Court of Canada decision in Donahoe v Canadian
Broadcasting Corporation. In this decision the Supreme Court
examines the issue of parliamentary privilege and, in particular,
whether the Charter of Rights and Freedoms prevails over
the exercise by members of a legislature of their ancient rights
and privileges. The majority of the Court decided that the Charter
cannot override the privileges of the Assembly because the
privileges, like the Charter, are part of the Constitution
of Canada. The Court found that both the privileges and the Charter
must stand together, based on the principle that one part
of the Constitution can not abrogate another part of the Constitution.
I would be happy to provide you with a copy of this decision if
you do not already have it.
I hope this will be of some assistance to you
. If you require further information, please do not hesitate to
Loredana Catalli Sonier
Clerk of the Legislative Assembly
19 May 1998