In the case of the Bayle situation, it was done under the Quebec access to information act, and under that act, the National Assembly is actually covered by the legislation. It is considered to be a public body under their legislation; therefore, it is subject to the act. There is a specific section in that legislation that addresses the discretion of parliamentarians to refuse disclosure.
This is what the court said in that case, as far as I understand it. First of all, the request in that case was made to someone at the National Assembly who was their access to information coordinator for the assembly, so it was a direct request to the National Assembly. The court stated that the Commission d'accès, because the National Assembly is covered by the act, had the right to review that decision—which I think would be challenged by the law clerk if I were to review a decision on parliamentary privilege, but we'll see when we come to that—but once there is a determination that something is parliamentary privilege, the Commission did not have the right to basically go under that claim and determine whether or not that claim is appropriate. That's how that case is different.
Here, the situation we have is that Parliament, in its omniscient capacity, has decided to give government institutions a scheme, and a completely controlled scheme, to determine how they're supposed to disclose information under their control. They really don't have this discretion. The parliamentary privilege belongs to the House of Commons and the Senate. It belongs to Parliament. The institutions that are covered by the act are functioning under a clear, determined, defined statutory scheme that determines their decisions on disclosure. That's the issue. Parliamentary privilege belongs to Parliament.
As a result, if Parliament does not want disclosure on the basis of parliamentary privilege, it certainly puts this entire self-contained scheme of disclosure under extraordinary pressure. What you will find, if you have a clear case where there's no other exemption in the act and there's an assertion of parliamentary privilege, is that there's going to be a complaint to my office. I'm going to review that, and I'm going to basically have to say that I think I have jurisdiction to take the matter to Federal Court if I think the claim is not appropriate. You would also have the House of Commons taking this matter to court to prevent disclosure. They would be different schemes under the federal Access to Information Act in terms of judicial review by the Federal Court: you would probably have the House of Commons going under section 18.1 of the Federal Courts Act.
It's a bit of a potential mess, frankly, and it could be fixed, and in my view it needs to be fixed.