Inside and Outside of the House Of Commons: The Relationship Between Freedom of Expression, Freedom of Speech and Parliamentary Privilege.

• Author: Dumoulin, Jennifer

Freedom of expression is an essential condition for democracy, but under the Canadian Charter of Rights and Freedoms, it is not absolute. In this article, the author explores the concepts of freedom of expression and freedom of speech within Canadian society generally and in the House of Commons in particular. She concludes that the House of Commons is a place where the more restrictive concept of freedom of speech--subject to and limited by the parliamentary privilege of the legislature to control its internal proceedings--applies because a fully realized Charter guarantee to freedom of expression would actually hamper the proper functioning of the House. If Members of Parliament were able to express themselves freely and without limitations, then debate would be neither productive nor orderly and it is likely that some Members would have no opportunity to speak at all. While freedom of speech may seem at first glance to be overly restrictive in comparison with the guarantee to freedom of expression that exists outside of the House of Commons, the author contends its existence and exercise is, in fact, necessary to its proper and functioning.

Introduction

Freedom of expression is a necessary condition for democracy. It ensures that issues of common concern are freely and openly debated and allows for the criticism of public institutions. (1) Among other things, its purpose is to "[promote] the free flow of ideas essential to political democracy and the functioning of democratic institutions". (2) Despite this important function, freedom of expression is not absolute. Section 1 of the Canadian Charter of Rights and Freedoms permits limits on freedom of expression if they are reasonable and justifiable in a free and democratic society.

Freedom of speech, which exists solely in a legislative context, is also a necessary condition for democracy. Like freedom of expression, freedom of speech has constitutional status; its origins trace back to the Constitution Act, 1867 and the Parliament of Canada Act. The two freedoms, however, differ in scope and application. Freedom of expression entails the right to express oneself and the right to be free from compelled speech and, per the Charter, applies to everyone; freedom of speech on the other hand applies only to elected representatives, granting them immunity from civil or criminal prosecution for statements made in the course of parliamentary business. Further, while freedom of speech permits Members to speak freely, it does not allow them to speak whenever they wish. This is because the parliamentary privilege of freedom of speech is limited by and subject to the internal control of legislatures. (3)

While it is possible to debate whether any limits to such fundamental freedoms are ever justifiable, it is commonly accepted to be true. Constitutional freedoms related to expression and speech are limited not only within society as a whole, but also within its governing democratic institutions through both formal procedures and informal practices. At first glance, such limitations appear counterintuitive. How can everyday citizens and, more specifically, elected representatives properly deliberate and create laws if they do not have the ability to express themselves freely while doing so? This article explores this contradiction by comparing the leading legal tests for the right to freedom of expression within the parliamentary privilege of freedom of speech in order to determine whether the limits imposed within the House of Commons are reconcilable with the Charter.

The right to freedom of expression

While Section 2(b) of the Charter guarantees the right to freedom of expression, it provides very little guidance on the actual content of the freedom. The courts have filled in this gap, identifying two branches of the right, including the right to express oneself. The 1989 case Irwin Toy established the three steps of the freedom of expression test, each of which will be discussed in further detail below.

Step 1: Is the activity protected by freedom of expression?

Every expression has both form--the method of communication--and content--the meaning conveyed. As established in Irwin Toy, any activity that is expressive and attempts to convey meaning is prima facie protected by freedom of expression. (4) Further, there are "an infinite variety of forms" that expression can take, including the written and spoken word and physical acts and gestures, (5) and only violent forms of expression have been excluded from the protection.

Step 2: Was the purpose or effect of government action to restrict freedom of expression?

Even though an activity may be protected by freedom of expression, if government action either in purpose or effect does not restrict the expression itself then there is no Charter infringement. Where the purpose of government action is, however, to single out particular meanings not to be conveyed, control access to the meaning, or control the ability of a person to convey meaning, then freedom of expression is violated. (6) Where the purpose of government action is to restrict the consequences of the activity--irrespective the meaning--then its purpose is not to control expression and there is no infringement.

Step 3: Is the limitation reasonable and justifiable in a free and democratic society?

An infringement can be justified under Section 1 of the Charter if...