Parliamentary privilege: the impact of New Brunswick Broadcasting Co. v. Nova Scotia.

• Author: Michel Bonsaint

This article summarizes a Master's dissertation in public law submitted to Laval University by Michel Bonsaint, a parliamentary counsel working at the parliamentary procedure research division of the National Assembly.

The case before the Court opposed the freedom of expression guaranteed by section 2(b) of the Charter with the parliamentary privileges of the Nova Scotia House of Assembly. It was brought following a decision by the Speaker of the House of Assembly, Arthur Donahoe, to bar the television cameras of from the House. The main constitutional question before the Court was whether the Charter applies to the members of the House of Assembly when exercising their privileges as members. This article looks at the general issue of parliamentary privilege and examines the line of reasoning followed by the Supreme Court.

Parliamentary privilege, in the words of Lucien Lamoureux, a former Speaker of the Canadian House of Commons, "is a somewhat obscure legal concept. Neither its source, its development nor its nature can be easily determined. It nevertheless remains an important, and even an essential element of parliamentary democracy as practised in Canada". (1)

Parliamentary privileges are the privileges held by the members of a legislative assembly as distinguished from the representatives of Crown and Bench. "This state of affairs arose from a history of conflict between Parliament, the Crown and the Judiciary in the United Kingdom." (2) They are needed to enable the members of the legislative assembly to act independently. "The content and extent of parliamentary privileges have evolved with reference to their necessity". (3) For this reason, "categories of privilege did not develop in the same way in the colonial legislature of Canada and elsewhere, and the case law makes clear that the powers deemed necessary in the Houses of Parliament of the United Kingdom were not always deemed necessary in other contexts." (4)

The courts of the United Kingdom recognized that, from its inception, each colonial legislative assembly possessed inherently the powers necessary to discharge its functions, although those powers were of lesser extent than the comparable powers of the Houses of the Imperial Parliament. Only in 1896 did the Judicial Committee of the Privy Council grant the assemblies of Canada full enjoyment of all the British parliamentary privileges, when it ruled that the Parliament of Canada, as well as each provincial legislature, had the power to legislate in the area of parliamentary privilege. (5)

After this ruling, the interest shown in the legal status of parliamentary privileges in Canada diminished, since no great importance attached to whether they were inherent or granted by law. The distinction remained valid only if Parliament, or a provincial legislature, passed no legislation of its own in order to allow the assembly concerned to enjoy all the British parliamentary privileges. In other cases, the courts recognized each assembly's right to the full enjoyment of parliamentary privileges, whatever their source.

Discussion of the source and legal status of parliamentary privileges began again, however, following the coming into force of the Canadian Charter of Rights and Freedoms. The Charter expressly provides for its own application to Parliament and to each provincial legislature. However:

* to what extent does the Charter apply to the Senate and to the House of Commons, which are simply components of the Parliament of Canada, and to the legislative assemblies of each province, which are simply components of the provincial legislatures?

* Were the Charter to apply to the legislative assemblies, including the Senate and the House of Commons, to what extent would it also apply to the exercise of parliamentary privileges by those bodies?

* What is the legal status of parliamentary privileges in light of the rights and freedoms guaranteed by the Charter?

Some Canadian courts had, before the Supreme Court, addressed these issues without any particular jurisprudential direction emerging from their decisions. Indeed, three different positions could be detected. A judgment from the Supreme Court was thus eagerly awaited, but it was only in 1993, eleven years after the passage of the Charter, that events finally came to a head in the form of N.B. Broadcasting Co. v. Nova Scotia (6) --also referred to as Donahoe, from the name of the appellant, the then Speaker of the Nova Scotia House of Assembly. The Supreme Court was faced with a challenging issue: behind the fundamental question of whether or not the Charter applied to legislative assemblies lay the no less fundamental question of whether or not it was necessary for legislative assemblies, the Charter notwithstanding, to continue to enjoy parliamentary privileges in order to discharge their functions.

Like the lower courts which had previously been required to rule on whether the Charter applied to legislative assemblies, the nine judges of the Supreme Court were unable to define a unanimous position. Indeed, the three main positions set out in the ruling are to all intents and purposes irreconcilable, based as they are on highly divergent opinions. It is necessary, if the effects of Donahoe on the exercise of parliamentary privilege are to be properly understood, to examine the impact of parliamentary privileges - especially freedom of speech and the right to regulate internal affairs free from outside interference - on court intervention in the internal affairs of legislative assemblies.

Intervention in Internal Affairs of Legislatures

The right of an assembly to regulate its internal affairs free from interference represents, in the classification of Joseph Maingot, a broad category of collective privileges. It includes the right to enforce discipline on members; the right to deliberate and examine witnesses behind closed doors; the right to control the publication of its debates and proceedings; the right to administer that part of the statute law relating to its internal procedure; the right to administer its affairs within the precincts and beyond the debating chamber; the right to settle its own code of procedure; and the power to send for persons in custody. (7)

The most obvious effect of this privilege is to allow a legislative assembly to exercise exclusive authority over almost every aspect of the activities carried on within its walls, without any interference from the courts. It can be seen as an extension of the individual privilege of freedom of speech.

The following opinion, quoted in Auditor General v. Minister, E.M.R., provides a succinct definition of the relation existing between courts and legislative assemblies:

It is well known that in the past there have been dangerous strains between the law courts and Parliament - dangerous because each institution has its own particular role to play in our constitution, and because collision between the two institutions is likely to impair their power to vouchsafe those constitutional rights for which citizens depend on them. So for many years Parliament and the courts have each been astute to respect the sphere of action and the privileges of the other - Parliament, for example, by its sub judice rule, the courts by taking care to exclude evidence which might amount to infringement of parliamentary privilege. (8)

Similarly, in Donahoe, Justice McLachlin mentions as follows:

Our democratic government consists of several branches: the Crown, as represented by the Governor General and the provincial counterparts of that office; the legislative body; the executive; and the courts. It is fundamental to the working of government as a whole that all these parts play their proper role. It is equally fundamental that no one of them overstep its bounds, that each show proper deference for the legitimate sphere of activity of the other. (9)

Although the extent to which the courts are able to intervene in the internal affairs of a legislative assembly has not, as yet, been clearly established, recognition seems to exist of the fact that "the courts may determine if the privilege claimed is necessary to the capacity of the legislature to function...". (10) However, the courts" ... have no power to review the rightness or wrongness of a particular decision made pursuant to the privilege". (11)

The right of an assembly to regulate its internal affairs free from outside interference means that, in general, the courts cannot intervene in its proceedings even where the assembly fails to follow its own code of procedure. The Speaker of the assembly, alone, has jurisdiction in this area. In addition, the Speaker has exclusive power to apply and interpret any statutes containing parliamentary procedure. (12)

Furthermore, the right to regulate internal affairs without outside interference seems to extend beyond proceedings in the House and in committee meetings. These internal proceedings "also include areas of administrative concern". (13) "The privilege of the House cannot be confined to what takes place in the debating chamber itself. All the privileges that can be required for the energetic discharge by the members of the House of their duties must be conceded without a murmur or a doubt ...". (14) This privilege has been extended by the courts to such areas as the right to regulate the sale of alcoholic beverages (15) and the right to appoint and manage staff. (16)

Court intervention in the legislative process

As a result, the courts cannot intervene to ascertain what procedure was followed during passage of a bill by a legislative assembly. "Courts come into the picture when legislation is enacted and not before." (17) In fact:

all that a Court of Justice can do is to look to the Parliamentary roll: if from that it should appear that a bill has passed both Houses and received the Royal assent, no Court of Justice can inquire into the mode in which it was introduced into Parliament, nor...