The Ontario Divisional Court said it does not have the jurisdiction to overrule the government in barring Independent MPP Sarah Jama (Hamilton Centre) from speaking in the legislature. The Divisional Court called the law “well-settled.” “Courts have no jurisdiction to review matters that fall within parliamentary privilege, including review under the Charter of Rights and Freedoms,” said the Divisional Court in a ruling.“As a matter of the constitutional separation of powers, those matters are within the exclusive purview of the Legislative Assembly.” The Ontario government tabled a motion in October authorizing the speaker of the Legislative Assembly of Ontario not to recognize Jama until she retracts her anti-Israel remarks and apologizes inside it for them. The motion prevented her from engaging in debates, but she would be able to vote. It ended up passing, with the Ontario NDP and Jama voting against it. The Office of the Speaker of the Legislative Assembly of Ontario said he would uphold the will of MPPs. Jama commenced an application for judicial review, seeking to quash the decision to permit the motion be moved and voted on, quash the censure from the Ontario Legislature, and seek a court order to rule it out of order. The respondents had moved out strike out or dismiss the application for judicial review on several grounds. For the application to be dismissed, the Divisional Court said they have to show it is clear it will fail. It said the main issue is whether or not the respondents have shown the subject matter of this application falls within parliamentary privilege and is outside the jurisdiction of the courts. The Ontario Court of Appeal has confirmed the long-standing general principles of parliamentary privilege. “Parliamentary privilege has been part of Canadian constitutional law since Confederation,” said the Court of Appeal. “The privilege, which is enjoyed by the Senate, the House of Commons, and the provincial legislative assemblies, helps maintain the constitutional separation of powers between the legislative, executive, and judicial branches of government and thus promotes the ‘constitutional equilibrium’ of Canada’s democracy.” When parliamentary privilege applies, the Divisional Court said it deprives the courts of jurisdiction over the privileged matter and confers an immunity from judicial review. It added courts cannot review matters involving parliamentary privilege, even on violations related to the Canadian Charter of Rights and Freedoms. Parliamentary privilege is not restricted to matters that take place inside the legislature. The legislature has the power to impose rules and sanctions pertaining to conduct that occurs outside their chambers. However, parliamentary privilege does not extend to every activity a legislative assembly might do, as it attaches to particular ones. The role of the courts is limited to determining the existence and scope of categories of parliamentary privilege.Once the court has recognized a category that is privileged, it has no jurisdiction to deal with the related conduct. The court must withdraw from any further consideration of the matter. This application seeks to challenge a decision adopted by the Legislative Assembly of Ontario imposing parliamentary discipline on an MPP arising from a motion brought and debated before it. The respondents relied on several recognized categories of parliamentary privilege. The Divisional Court concluded by saying the motions are granted and the application dismissed. “There shall be no order as to costs,” it said. Ontario NDP leader Marit Stiles said in October she had removed Jama from caucus effective immediately because she belitted Israel.READ MORE: UPDATED: Ontario NDP removes MPP from caucus over anti-Israel comments“Some of Ms. Jama’s actions have contributed to unsafe work environments for staff,” said Stiles. “As such, with the support of our Ontario NDP MPPs, I have been left with no option but to remove Ms. Jama from our Caucus.”
