Court File No. 14-3 0299 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN and MCHAEL DUFFY AFFIDAVIT I, Guy Re?gimbald, of the City of Gatineau, in the Province of Quebec,.MAKE OATH AND SAY AS FOLLOWS I am a lawyer at Gowling La?eur Henderson LLP in Ottawa, and assist Mr. Maxime Faille in this matter on behalf of our client, the Senate of Canada. I have knowledge of the matters hereinafter deposed to. The accused, now standing trial on multiple counts of fraud and breach of trust under the Criminal Code, was also the subject of a Senate investigation by a subcommittee of the Senate Standing Committee of Internal Economy, Budgets and Administration. The accused, on or about May 1, 2015, served a subpoena upon Mr. Charles Robert, Clerk of the Senate, for the disclosure of certain documents, reports, drafts, notes and transcripts relating to and arising from the Senate investigation and proceedings (?the Senate proceedings documents?). The accused and his counsel had previously requested the Senate proceedings documents. 4. As set out in a letter dated March 16, 2015 in response to the said requests from the accused and his counsel, the Senate instructed counsel to advise that it asserts parliamentary privilege in relation to the said Senate proceedings documents. 5. The letter sent by Mr. Max Faille to Mr. Donald Bayne dated March 16, 2015, is attached as exhibit of this af?davit. 6. The Senate is claiming parliamentary privilege under the following categories 1) Freedom of Speech; 2) .exclusive cognizance of and control over debates and proceedings; 3) control by the Houses of Parliament over their internal affairs; and 4) disciplinary authority over its members. 7. The scope of the said categories of privilege includes the right to hold Senate proceedings in camera, control over documents in its possession, and the protection of members and of?cers from giving evidence about a parliamentary proceeding. 8. This af?davit is made in support ?of the Senate of Canada?s claim for a parliamentary privilege of the documents, reports, drafts, notes and/or transcripts sought by the accused, and for no improper purpose. - E: SWORN BEFORE ME at the City I of Ottawa, in the Province of Ontario, this 15th day of May, 2015 f, ?vs/?Guy R?gimbal/d/ A Comm?'i?nen??tc. montr?al otlawa - townie hammers waterioo region caigarv - WHCOKWQF beijing - mosses tendon March 16, 2015 . ems a (sexy geese? Maximo Faille Direct 613~783-8801 Direct Fax maxime.faille@gowiings.com File No. 03392307 By Fax and Regular Mail Mr. Donald Bayne Bayne Seller Boxall 200 Elgin St Ottawa, ON K2P 1L5 Dear Mr. Bayne: Re: Senator Michael Duffy Request for Information and Documents We espresth the Senate of Canada and vnite in this regard in response to your requests, as Well as those of your client Senator Michael Duffy, to obtain Certain documents, reports, drafts, notes and transcripts relating to and arising from the Special on Living Allowances of the Board of ,Intemal Economy, as Well as relating to and arising from the Audit Report on Senator Duffy. Please be advised that the documents requested, will not be provided, ?as they are sohiect to the con stitntionally?protectedlaw of parliamentary privilege. As you may be aware, parliamentary privilege protects proceedings in federal and provincial legislatures from outside interference. it has been defined as follows: Parliamentary privilegi is the necessary immunity that the law provides for members of Parliament, and for members of the legislatures of each of the ten provinces and two territories, in order for these legislators to do their legiSlative work. It is also the necessary immunitythat the law provides for anyone while taking part in a proceeding in Parliament or in a legislature. Finally, it is the authoritjr and power of each House of Parliament and of each legislature to enforce that immunity. (See Canada (House ofCommorrs) v. raid, 2005 SCC 30 at para. 29 The sourceofpariiarnentary privilege lies in both common and stamtory law. The legislatures retain inherent privilege over those which are necessary for them to function as legislative bodies. This privilege is set out in section 18 of the Constitution Act, 1867, which conveys on the Senate and the House of Commons the power to legislate their own privileges by statute, as follows: 18- The privileges, immunities, and powers to beheld, enjoyed, and exercised by the Senate - - and by the House and by the members thereof respectively, shall be Snell as are from time to time de?ned by Act of the Parliament of Canada, but so that any Act of the . Gowiing la?eut Henderson 23.? - Lawyers Patent and Trade-mark agents . - 160 Etgis Street Suite 2600 - Ottawa - Ontario Kit? 103 recess T613--233?1?8?i 613?553?9859 gowiingseom Parliament of Canada de?ning such privileges, immunities, and powers shall not confer any privileges, immunities, or powers exceeding those at the passing of such Act held, enioyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the members thereof. Sections 4 and of the Parliament (if-Canada Act similarly provide that the Senate and the House of Commons, as well as their members, ,enjoy and caercise the like privileges, immunities and powers which were held, enjoyed and exercised by the House of Coalitions, UK, in 1367, as well as such other privileges, immunities and powers de?ned by the Canadian Parliament, not exceeding those above, and that such privileges, immunities and powers are part of the general and public law of Canada to be taken notice of judicially. I The scepe of parliamentary privilege is thus determined by reference to both Canadian and English law. As in Canada, English law contains both inherent and legislated privileges. The legislated privileges are set out in article 9 of the Bill ofRights, 1688 as follows: - 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. With respect to the common law, in Void, the Supreme Court of Canada stated the purpose of parliamentary privilege as follows: The purpose of privilege is to recognize Parliament?s exclusive jurisdiction to deal with Cornplaints within its privileged sphere of activity. As noted by Justice Binnie in the Void, ?it is important that both Parliament and the courts respect - the legitimate Sphere of activitgr of the other?, Similarly, in Ziavigne v. R, the Ontario Superior Court of Justice dealt with whether criminal charges laid against Senator Lavigne should be stayed as the Crown was unable to provide disclosure of the transcripts from the in camera Special Senate Sub?Committee hearings into the Senator?s alleged improper use of Senate resources. The Court held that the transcripts were subject to privilege. In making this ?nding, the Court held that the mquiry into Senator Lavigne?s use of resources was a_ 'matterf?intemal to the Senate?: - {22] At paragraph 29 of Void, supra, decision, Binnie J. also identi?ed disciplinary authority over its members as a recognized. category of established privilege..The Senate Inquiry into Lavigne?s conduct was a matter of the discipline of a member of the Senate by conducting an inquiry into improper use of Senate resources by Senator Lavigne. The matter of discipline of a member- of the Senate is a matter ?internal to his Senate?, to be resolved by the Senate?s own procedure and I conclude would be subject to the Senate?s own procedure and subject to Parliamentary privilege following the reasoning in Void, supra. Page 2 [23] I am satis?ed that the existence and scope of the Senate?s Parliamenme privilege extends to the transcripts of an int-camera Senate Inquiry into alleged impreper Use of Senate resources by a member of the Senate of Canada. I am also satis?ed that any outside interference in how the Senate Inquiry was conducted would undennine the level of autonomy required to enable the Senate and its members to do their work with dignity and ef?ciency. Similarly, there can be no doubt that the documents sought all relate to matters internal to the Senate and its own process and are, accordingly, subject to parliamentary privilege. As such, I regret that your requests and those of your client cannot be acceded to. Yo ry truly, Me; Failie 'ce: Michel Patrice OTTALAEW 51085290? Page 3 BETWEEN a. Qtt?w Pig/:- . If? - 6% a! Court File No. 14-3 0299 ONTARIO COURT OF JUSTICE MAJESTY THE QUEEN I) "nowadj if o\{-md- MICHAEL DUFFY AFFIDAVIT GOWLING LAFLEUR HENDERSON LLP Barristers and Solicitors 160 Elgin Street Suite 2600 Ottawa, ON 1C3 Telephone: (613) 786-?1059 Facsimile: (613) 563 -9869