At the time this article was
written Michel Bonsaint was a parliamentary counsel working for the procedural
research division of the National Assembly. This article is based on his
Master’s dissertation in public law at Laval University.
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
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
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
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
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 Scotia6 – 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
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 beverages15 and the right to appoint and manage staff.16
Court intervention in the
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 into what
was done previous to its introduction, or what passed in Parliament during its
progress in its various stages through both Houses.18
In Drewery et al. v. Century
City Developments Ltd. et al., the Ontario Ministry of the Environment and
a member of the province’s legislature were summoned, by subpoena, to testify
before a court on the procedure followed by the Legislative Assembly during the
passage of a bill. Century City argued that it had grounds to oppose the
passage of the bill, and that the fact that it had not been heard by the
Legislative Assembly rendered the bill, once passed, null and void. Century
City, in effect, argued that the audi alteram partem rule applied to
legislative assemblies. Justice Cromarty of the Ontario High Court first quoted
the passage from Edinburgh and Dalkeith Ry. Co. v. Wauchope given above,
before stating as follows:
The Act in question before me has
been approved, it has received Royal assent, and my only power, the only power
of this Court, is to examine whether or not the Act is constitutionally
operative. I have a recollection, but I cannot put my mind on the case which
somewhere says that Parliament can do anything except make a man a woman ....
This is important with respect to
the litigants themselves, but it is even more important with respect to the
members of the Legislature or Ministers of the Crown, that they cannot be
hailed before a Court to explain what went on prior to the passing of an Act,
so that all that may be examined into, and then have the whole of that evidence
disregarded before the Court.19
In a similar case the Supreme Court
of Canada, in Reference Re Resolution to Amend the Constitution, was
asked to rule on whether the two Canadian Houses of Parliament had the power to
make a resolution to send a joint address to Her Majesty the Queen, together
with the bill providing for the repatriation of the British North America Act.
The Supreme Court first underlined the fact that the privileges, immunities and
powers of the two Houses of the Canadian Parliament were linked to those of the
British House of Commons. With respect to the internal procedure of the two
Houses, it then stated:
How Houses of Parliament proceed,
how a provincial legislative assembly proceeds is in either case a matter of
self-definition, subject to any overriding constitutional or self-imposed statutory
or indoor prescription. It is unnecessary here to embark on any historical
review of the "court" aspect of Parliament and the immunity of its
procedures from judicial review. Courts come into the picture when legislation
is enacted and not before (unless references are made to them for their opinion
on a bill or a proposed enactment). It would be incompatible with the
self-regulating – "inherent" is as apt a word – authority of Houses
of Parliament to deny their capacity to pass any kind of resolution. Reference
may appropriately be made to art. 9 of the Bill of Rights of 1689,
undoubtedly in force as part of the law of Canada, which provides that
"Proceedings in Parliament ought not to be impeached or questioned in any
Court or Place out of Parliament".20
A priori court intervention in the legislative
A further effect of the right of an
assembly to regulate its internal affairs without outside interference, besides
precluding court intervention in the legislative process at the stage of parliamentary
proceedings, is also to exclude court intervention in the legislative process a
priori, for example to prevent the Government or a Member from presenting a
bill before the assembly.
In Reference Re Canada
Assistance Plan (B.C.),21 the Supreme Court was asked to rule on
whether the federal government could table Bill C-69, later to become the Government
Expenditures Restraint Act, given that passage of the bill would
effectively amend the agreement entered into by the Government of Canada and
the Government of British Columbia to share the cost of expenditures on social
assistance and welfare. According to one of its provisions, the agreement could
be amended or terminated by mutual consent, or it could be terminated on one
year’s notice from either party. After demonstrating that the courts have no
interest in parliamentary procedure, Justice Sopinka , speaking for the Supreme
Court, stated as follows:
The formulation and introduction of
a bill are part of the legislative process with which the courts will not
meddle. So too is the purely procedural requirement in s. 54 of the Constitution
Act, 1867. That is not to say that this requirement is unnecessary; it must
be complied with to create fiscal legislation. But it is not the place of the
courts to interpose further procedural requirements in the legislative process.22
In reply to the submission that, as
regards legislative process, a distinction could be drawn in this particular
case between the bill’s presentation by the executive and its examination by
the Houses of Parliament, Justice Sopinka stated that the "submission
ignores the essential role of the executive in the legislative process of which
it is an integral part".23
In another case the Québec Superior
Court, unwilling to interfere in the procedure of the National Assembly,
refused to issue an interlocutory injunction to prevent a corporation from
presenting and lobbying for the passage of a private bill. As stated in its
reasons, "by issuing an interlocutory injunction, the Court would undermine
the rights and privileges of the legislative power to pass or reject the bills
laid before it".24
More recently, in Québec, an
individual applied to the Superior Court for the issue of a series of declaratory
judgments and injunctions relating to the action undertaken by the Government
of Québec for the holding of a referendum on sovereignty in the autumn of 1995.25
The applicant wished the court to
state, in particular, that "the Prime Minister and the Government of
Québec do not have the constitutional power to table, before the National
Assembly of Québec, a bill intended, essentially, to separate Québec from
Canada";26 and that "the Government of Québec is acting
fraudulently and unlawfully by preparing to use its majority in the National
Assembly to force the Assembly to pass a bill designed to destroy Canada".27
One of the applicant’s requests was
that the court order all the members of the Government of Québec to take all
necessary steps "not to table a bill respecting Québec sovereignty before
the National Assembly;28 and to ensure that no bill on Québec
sovereignty is introduced before the National Assembly for debate and/or
passage in accordance with the Act respecting the National Assembly and
the relevant regulations".29
The respondents, for their part,
presented the following main argument to the court:
The applicant, by the very nature
of the conclusion sought, is asking the court to interfere in the exercise of
the legislative power and in the operation of the National Assembly, which
would constitute an unjustifiable attack on the fundamental responsibilities of
the National Assembly, as well as on some of its most essential privileges.30
In his judgment, Justice Lesage
first made the following statement, the meaning of which is not at first glance
Parliamentary privilege cannot
place the National Assembly above the Constitution of Canada. Members may
discuss any subject and pass any measure, be it invalid or illegal, but there
is a limit: they may not attack the Constitution from which they hold their
powers. The courts must, in their interventions, denounce any unconstitutional
The judge went on to conclude as
It is clear that the court cannot
paralyse the operation of the National Assembly [by issuing a series of
injunctions], or prohibit it from debating the matter, as this would amount to
an infringement of parliamentary privilege. In addition, it is better that
public debate take place with full knowledge of the facts.32
The inability of the courts to
prevent a person from submitting a matter to the examination of a legislative
assembly is supported by parliamentary law. By virtue of the power vested in it
to establish its own code of procedure and to have sole authority to ensure
compliance with it – subject to a preponderant constitutional provision such as
section 133 of the Constitution Act, 1867 – a legislative assembly has
the exclusive power to determine the conditions governing the laying of a
matter before it. Where the assembly considers that procedural requirements
have been met it must, free from outside interference, have the freedom to
decide whether or not it will in fact examine the matter. If a court could
intervene in the process leading up to the introduction of a bill before a
legislative assembly, for example, on the basis that it was not interfering in
the actual proceedings of the assembly, the assembly could be paralysed until
the consent of the court to the introduction of the bill had been obtained. It
is clear that such a possibility must be excluded without further
Application of the Charter to
We have already seen how the courts
adopt a somewhat circumspect attitude towards the legislative assemblies and
hesitate to interfere in their internal affairs, leaving them as much latitude
as possible to play the specific role assigned to them by the Constitution. Is
the mutual respect shown by each branch of the State for the other, born out of
fierce tension, still appropriate in the era of the Charter? Its
adoption has quite clearly modified the nature of the Constitution of Canada,
which now assigns preponderant importance to the individual rights and freedoms
that must be respected by certain public institutions. Section 32(1) of the Charter
provides that the Charter applies:
(a) to the Parliament and
government of Canada in respect of all matters within the authority of
Parliament including all matters relating to the Yukon Territory and Northwest Territories;
(b) to the legislature and
government of each province in respect of all matters within the authority of
the legislature of each province.
Only in 1986, in RWDSU v.
Dolphin Delivery Ltd., did the Supreme Court of Canada rule that "the Charter
does not apply to private litigation."34 Justice McIntyre, for
the Court, considered that "s. 32 of the Charter specifies the
actors to whom the Charter will apply. They are the legislative,
executive and administrative branches of government."35 In 1990,
in McKinney v. University of Guelph,36 Justice La Forest, for
the majority, adopted the position taken by Justice McIntyre in Dolphin
Delivery, mentioning that "these words give a strong message that the Charter
is confined to government action"37, in other words "the
legislative, executive and administrative branches of government".38
The Supreme Court has already been
called upon several times to rule on the meaning of the word government
in section 32 of the Charter. Although it has not yet completely
circumscribed this question, the application of the Charter to government
has been clarified considerably. To what extent, then, does the Charter
apply to the Parliament of Canada and to the legislature of each
Section 17 of the Constitution Act,
1867 provides that "there shall be One Parliament for Canada,
consisting of the Queen, an Upper House styled the Senate, and the House of
Commons." Section 71 specifies that "there shall be a Legislature for
Quebec consisting of the Lieutenant Governor and of Two Houses, styled the
Legislative Council of Quebec and the Legislative Assembly of Quebec."39
Does section 32 of the Charter apply only to an act of the Parliament or
of a legislature, in other words a statute, or does it also apply to a non-legislative
act emanating from one or other of the Houses of Parliament or from a
In RWDSU v. Dolphin Delivery
Ltd., after mentioning that in light of section 32 of the Charter
"it may be seen that Parliament and the Legislatures are treated as
separate or specific branches of government, distinct from the executive branch
of government",40 Justice McIntyre states that "it would
seem that legislation is the only way in which a legislature may infringe a
guaranteed right or freedom."41 This position is reiterated by
Justice La Forest in McKinney v. University of Guelph.42
Given that in both cases the Supreme Court was ruling on the notion of government
as expressed in section 32, it went no further to clarify the application of
the Charter to the Parliament of Canada and to the legislature
of each province. Only in 1993, in Donahoe, did the Supreme Court
finally address this issue, venturing as it did so into practically virgin
The Supreme Court Decision in Donahoe
The difficulty experienced by the
lower courts in attempting to reconcile the imperative nature of the provisions
of the Charter with the necessity of full enjoyment, by the legislative
assemblies, of the parliamentary privileges prevailing in our system of
parliamentary democracy is also reflected in the Supreme Court decision Donahoe.43
The eight Supreme Court judges who took part in the decision produced four
different opinions, including one dissenting opinion. Seven judges came to the
conclusion that the Charter did not apply in the circumstances, but for
three different reasons.
a) The opinion of Chief Justice
After quoting the definition of
parliamentary privilege given by Joseph Maingot, Chief Justice Lamer begins by
stating that "it is important here to distinguish the Houses of Parliament
and the legislative assemblies from the broader legislatures of which they are
a part",44 and that "the legislature cannot hold and
exercise parliamentary privileges, as such privileges include the rights of the
members of the legislative assembly as against the Crown’s
representative."45 It is, in fact, "the members of the
Houses of Parliament and the legislative assemblies who hold parliamentary
privileges",46 those that "are judged necessary to the
discharge of their legislative function."47
With respect to section 32 of the Charter,
therefore, Chief Justice Lamer states as follows:
It refers only to the
"legislature and government" and, as submitted by the appellant, the House
of Assembly is neither legislature nor government properly speaking. The House
of Assembly is a component of the legislature but only together with the
Lieutenant Governor does it comprise the legislature. As pointed out earlier,
this is more than a semantic difference in the context of the exercise of
parliamentary privileges. The legislature as a whole cannot exercise
parliamentary privileges as those privileges are held by the members of the
Assembly, individually or collectively, against the Lieutenant Governor in his
or her capacity as the Crown’s representative.48
In consequence, "when one
examines "the language, structure, and history of the constitutional
text", "constitutional tradition" and "the history and
traditions of our society", it is clear that s. 32 of the Charter
does not extend the operation of the Charter to the exercise by the
members of the House of their inherent privileges."49
Chief Justice Lamer bases his
argument on certain sections of the Constitution that distinguish between Parliament
and the legislature of each province and their component parts. First,
he mentions that section 32 provides that the Charter applies to the
legislature of each province in all matters within the authority of the
legislature. In his opinion, this "is a clear reference to legislative
authority under, for example, s. 92 of the Constitution Act, 1867 which
begins with the words" in each Province the Legislature may
exclusively make Laws".50
He also refers to section 33 of the
Charter, subsections (1) and (4) of which link Parliament and legislature
with the enactment of legislation, and to various sections of the Constitution
Act, 1867, including section 17 which refers to a Parliament consisting of
the Queen, the Senate and the House of Commons, section 18 which deals with the
privileges of the Senate and the House of Commons, sections 21 to 36 which
concern the Senate, sections 37 to 52 which concern the House of Commons, and
section 69 which concerns the composition of the Legislature for Ontario.51
Lastly, the Chief Justice refers to
Part V of the Constitution Act, 1982, which deals with the
constitutional amendment procedure and which refers to resolutions of the
Senate, the House of Commons and the legislative assemblies of each
province, "thereby distinguishing between resolutions of the House
and enactments of the legislature".52
He goes on to state that sections
5, 17 and 18 of the Charter "at first blush, cast some doubt on
this interpretation"53, since the words Parliament and legislature
seem to be used to designate either the Senate and the House of Commons or
a provincial legislative assembly, respectively. Nevertheless, in his opinion,
"[w]hile these examples show that usage is not completely consistent, they
by no means take away from the general rule that "legislature" in s.
32 means the body that enacts legislation."54
Although "the language,
structure and history of the constitutional text are strongly suggestive of the
conclusion that the word "legislature" in s. 32 in general means the
body capable of enacting legislation and not its component parts taken
individually"55 – and that, as a result, those component parts
do not come under the application of the Charter – the Chief Justice
The legislation that the provinces
have enacted with respect to privileges will be reviewable under the Charter
as is all other legislation. However, it does not follow that the exercise by
members of the House of Assembly of their inherent privileges, which are not
dependent on statute for their existence, is subject to Charter review.56
In response to the suggestion made
in the dissenting opinion of Justice Cory – which the Chief Justice had been
able to consult beforehand – that the House would, in theory, be able to punish
for contempt by sentencing a member to life imprisonment without eligibility
for parole, he replies that "to the extent that any such authority claimed
by the members of the House to punish by life imprisonment rested on statutory
authority, the statute would, of course, be subject to Charter
Since the case under discussion did
not, however, involve a privilege granted by law, Chief Justice Lamer concluded
that the Members of the Nova Scotia House of Assembly were not subject to the application
of section 2 of the Charter.58
It is clear from the above that, in
the opinion of the Chief Justice, section 32 of the Charter applies to
the Parliament of Canada and to the legislature of each province
and that, as a result, it applies only to a legislative action and not to any
other action performed by one or other of the Houses of the Canadian Parliament
or of a provincial legislature, including the exercise of a parliamentary
privilege. However, as we have seen, the Chief Justice considers that "the
legislation that the provinces have enacted with respect to privileges will be
reviewable under the Charter as is all other legislation",59
seeming to draw a distinction between the inherent privileges of a legislative
assembly and a broader class of privileges enacted by law.
Canadian legislation in the area of
parliamentary privilege is restricted to three basic approaches: a list of
parliamentary privileges, such as that enacted by the Parliament of Québec in
the Act respecting the National Assembly60, a reference to
the privileges of the British House of Commons, the approach taken by the
Parliament of Canada, or a reference to the privileges of the Canadian House of
Commons, as adopted by some provincial legislatures.61 Since all the
statutes concerned mention parliamentary privileges in general, it is unlikely
that a violation of the Charter could arise from the actual wording of
the legislation, but rather from the way in which the privileges are exercised
by the legislative assembly concerned. If, as Chief Justice Lamer contends,
section 32 of the Charter does not apply to the component parts of the
Parliament of Canada and the provincial legislatures, do they come under the
scope of the Charter simply because their actions have a legislative
origin? For this to be true, would their actions not have to be "taken
under statutory compulsion"62 and thus similar in nature to
"acts of the legislative branch of government"?63
b) The Majority Opinion – The Charter
does not apply to the exercise of inherent constitutional privileges
For the majority,64
McLachlin first mentions that "the Charter does not apply here, not
because a legislative body is never subject to the Charter, but because
the action here in issue is an action taken pursuant to a right which enjoys
constitutional status. Having constitutional status, this right is not one that
can be abrogated by the Charter."65
"Even conceding that our
notions of what is permitted to government actors have been significantly
altered by the enactment and entrenchment of the Charter",66
the majority holds that "absent specific Charter language to the
contrary, the long history of curial deference to the independence of the
legislative body cannot be lightly set aside".67 For this
reason, the Charter cannot "apply to all of the actions of
the legislative assembly."68
The main constitutional question
facing the Supreme Court, that of deciding whether the Charter applied
to the members of the Nova Scotia House of Assembly in the exercise of their
inherent privileges as members, was addressed as follows by the majority:
The Charter does not apply
to the members of the Nova Scotia House of Assembly when they exercise their
inherent privileges, since the inherent privileges of a legislative body such
as the Nova Scotia House of Assembly enjoy constitutional status.69
The majority, then, unlike the
Chief Justice, was unswayed by the textual argument "that a textual
and a purposive approach to s. 32(1) supports the conclusion that the Charter
was not intended to reach the actions of a legislative body proper."70
Rather, the majority considers that the Charter applies to legislative
assemblies, and that the tradition of curial deference should be applied only
to the exercise of inherent privileges, on the grounds that those privileges
have constitutional status and that to do otherwise would go against the basic
rule "that one part of the Constitution cannot be abrogated or diminished
by another part of the Constitution".71
c) The opinion of Justices
Sopinka and Cory
In the opinion of Justice Sopinka,
"the exercise of privileges, whether by legislation or by rules or
practices of the legislative assembly, are matters "within the authority
of the legislature" and therefore subject to s. 32 unless the rights and
privileges are part of the Constitution of Canada and therefore not subject to
provincial legislation."72 He "would find it unusual that
the framers of the Constitution Act, 1867 intended to entrench certain
privileges by a general reference in the preamble".73
Justice Sopinka therefore agrees
with the reasons put forward by Justice Cory to the effect "that s. 2(b)
of the Charter may be engaged".74 In contrast to Justice
Cory, however, he considers that in the case under consideration "any
restriction on s. 2(b) is justified under s. 1 of the Charter"75
since, in fact, "the original prohibition on filming and broadcasting the
work of the House of Assembly was relaxed in favour of the installation of the
"electronic Hansard"."76 Given that the media already
had the possibility of broadcasting and recording debates using this source,
the prohibition on filming the proceedings directly – "assuming that the
restriction is a violation of s. 2(b)",77 a matter that
he declined to rule on – Justice Sopinka is "satisfied that it is
justified under s. 1 of the Charter."78
Justice Cory first states that he
cannot concur with the conclusion reached by the Chief Justice to the effect
that section 32 can only apply to the legislature as a whole, and not to one of
its component parts such as the legislative assembly.79 In his view,
there can be no doubt that the
underlying purpose of s. 32(1) is to restrict the application of the Charter
to public actors. The legislative assembly is an institution that is not only
essential to the operation of democracy but is also an integral part of
democratic government. It would seem that it is a public actor. It follows that
the Charter should apply to the actions of the legislative assembly.80
In support of this contention, he
poses the following hypothetical question:
would there be any question that
the Charter would apply if, in exercising its jurisdiction with regard to
punishment of a member for contempt, the legislative assembly were to sentence
that member to life imprisonment without eligibility for parole?81
He goes on to state that "such
an action would fall outside the constitutional scope of parliamentary
privilege and the provisions of s. 12 of the Charter applying to cruel
and unusual punishment would come into play."82 Finally, he
concludes that "the Assembly cannot exclude television entirely by means
of regulation without infringing s. 2(b) of the Charter"83
and that "the number of cameras could be limited and their location and their
manner of operation regulated"84 which, in the judge’s opinion,
would be "eminently fair and suitable and would be justifiable under s. 1
of the Charter."85
The recognition, by the majority,
of the constitutional status of inherent parliamentary privileges represents an
incomplete victory for Canada’s legislative assemblies. In our opinion, Donahoe
represents a clear setback for them with respect to the judicial review of
their internal affairs. First, not insignificantly, the majority decision
confirms what was, until recently, merely suspected: that the Charter
applies to legislative assemblies. Next, the majority decision reintroduces the
concept of inherent privileges, for no other reason than to reduce the impact
of its decision to bring legislative assemblies under the application of the Charter.
This, in our opinion, constitutes a further setback, since the Supreme Court
fails to recognize the necessity for full enjoyment, by the legislative
assemblies, of the lex parliamenti long recognized by the courts. Under
the pretext of respecting a long-standing tradition of curial deference towards
legislative assemblies, the majority decision paradoxically relies on a form of
reasoning that could, in the long run, increase judicial control over
By linking the application of the Charter
to the notion of inherent privileges, the majority decision returns us to the
colonial era not only with regard to the content of the privileges themselves,
but also with regard to court intervention. Any person will now be able to
invoke the Charter against any decision made by a legislative assembly,
which will obviously increase the opportunities for judicial review. To decide
whether judicial review is possible under the Charter, the courts will
no longer have to determine whether the decision made by an assembly or by one
of its committees stems from a recognized parliamentary privilege, but rather
whether or not it is based on an inherent parliamentary privilege.
Donahoe has undoubtedly resulted in a reduction in
the scope of the actions of legislative assemblies not subject to the Charter,
since that scope will henceforth be determined on the basis of inherent
parliamentary privileges. As we have seen, the majority decision simply proposes
a general test of necessity and provides a non-exhaustive list of inherent
privileges. We can safely assume that the individual privileges generally
attributed to the members of a legislative assembly in the British tradition
will be admitted to be inherent and will thus fall outside the application of
However, if the Charter
applies to legislative assemblies, will it also apply to an action taken by a
member that oversteps the bounds of freedom of speech? For example, will it be
possible to invoke section 7 of the Charter in connection with a
statement made by a member outside the scope of parliamentary proceedings?87
Will it be possible to invoke the right to equality under section 15 of the Charter
against the acts and decisions that are inherent in the performance of a
member’s functions, such as the activities carried out in a riding office?
Turning now to certain collective
privileges held by a legislative assembly, such as the power to punish for
contempt, the right to regulate internal affairs free from outside
interference, and the right to institute inquiries, call for witnesses, and
gather evidence, will the witnesses summoned to appear before a parliamentary
committee now be able to invoke certain rights under the Charter? It is
not at all certain that the power to punish for contempt could, on the ground
that it constitutes an inherent privilege, prevail over the application of the Charter.
Both the Judicial Committee of the Privy Council and the Supreme Court of
Canada have ruled that the power to punish for contempt is not an inherent
privilege necessary to the exercise of legislative functions.88
Although we must applaud the
intention of the Supreme Court majority to respect the independence of Canada’s
legislative assemblies as far as possible by limiting the opportunities for
judicial review under the Charter, the hazardous nature of the line of
reasoning followed to achieve this result which, we might add, provides no
guarantees, can only be deplored. By making recognition of the constitutional
status of a privilege the sole means of exempting it from the application of
the Charter, on the ground "that one part of the Constitution
cannot be abrogated or diminished by another part of the Constitution",89
the majority decision almost inevitably returns us to the colonial era. It
would have been difficult to provide legal grounds to justify the
constitutional status of all the parliamentary privileges of British tradition
– the lex parliamenti – enjoyed by Canada’s legislative assemblies for
many years, on the ground that those that were not inherent were granted by
law, which is why the re-introduction of the notion of inherent
privileges was practically the only avenue open to the majority to limit the
unwanted side-effects of an unrestricted application of the Charter to
the legislative assemblies.
We believe that the best way of
preserving the independence of Canada’s legislative assemblies and of
continuing the long tradition of curial deference, despite the adoption of the Charter,
lies in the approach adopted by Chief Justice Lamer. Although considered, by
the Supreme Court majority, to be a merely textual argument, the Chief
Justice’s view that "the language, structure and history of the
constitutional text are strongly suggestive of the conclusion that the word
"legislature" in s. 32 in general means the body capable of enacting
legislation and not its component parts taken individually" is, in our
Admittedly, the Chief Justice Lamer
used certain specific sections of the Constitution to support his argument but,
far from basing his approach on them, used them merely to illustrate the fact
that, despite its inclusion of the words Parliament and legislature,
section 32 is not intended to subject the legislative assemblies to the
authority of the Charter or to set aside a highly desirable equilibrium
between the courts and the legislative assemblies. A legislative assembly can
hardly be expected to exercise its profoundly constitutional role without
enjoying all the necessary latitude. Have the changes wrought in the Canadian
constitutional landscape by the Charter, however, called into question
this fundamental aspect of parliamentary democracy?
We do not share the Chief Justice’s
view that, as regards Charter applicability, a distinction must be made
between inherent privileges and legislatively-created privileges. If the Charter
does not apply to the legislative assemblies, there is no reason to believe
that it becomes applicable solely because the action taken by a legislative
assembly is founded on a privilege having its source in a statute unless, as
discussed above, the action was "taken under statutory compulsion".91
For example, the Charter could become applicable if the exercise of a
privilege stems directly from a statute, as in MacLean v. Nova Scotia.92
In the latter case Mr. MacLean, a member of the Nova Scotia House of Assembly,
was expelled not by a decision of the assembly itself but rather pursuant to a
statute providing expressly for his expulsion, adopted by the legislature by
virtue of its power to legislate in the area of parliamentary privilege in
conformity with section 45 of the Constitution Act, 1982.93
Even if the Charter did not
apply to legislative assemblies, we would not share the apprehensions of
Justice Cory with regard to potential violations of rights and freedoms by a
legislative assembly. Our democratic system guarantees that the membership of
each legislative assembly is decided by popular vote, and since the public is informed
on a daily basis of the work of the legislative assemblies, all the actions of
their members are constantly scrutinized and commented on.
The choice between, on the one
hand, a possible reduction in the effectiveness of legislative assembly
proceedings if made subject to the Charter and, on the other hand, the
apprehended negative effects of non-application should, in our opinion, have
been settled by a ruling leading to the second possibility. This is not to say
that fundamental rights should not be respected within Canada’s legislative
assemblies; rather, we believe that this goal should be achieved by the
application of internal rules, for instance by the adoption of rules to protect
witnesses called by committees. The main advantage of such an approach would be
to remove the internal proceedings of each assembly from undue supervision by
the courts which is, in fact, the principal negative effect of Donahoe,
whatever the actual degree of Charter applicability.
1. The comment by Lamoureux is found
on page ix of the preface to the French edition of Joseph Maingot’s work Parliamentary
Privilege in Canada, published by Les Éditions Yvon Blais in 1987 under the
title Le Privilège parlementaire au Canada.
2. See note 6, p. 342.
3. Ibid. p. 343.
5. Fielding v. Thomas, 1986,
6.  1 R.C.S. 319.
7. Maingot, Joseph. Parliamentary
Privilege in Canada, Butterworths, 1982, p. 15.
8.  2 R.C.S. 49, p. 88, Dickson,C.J..
See also Pickin v. British Railways Board (H.L.(E.)),  2 W.L.R.
208 (H.L.), pp. 228 et 229.
9. See note 6, p. 389.
10. Ibid. p. 384.
11. Ibid. p. 385.
12. See Bradlaugh v. Gossett,
(1884), 12 Q.B.D. 271, pp. 280 et 281.
13. See note 1, p. 303.
14. R. v. Graham-Campbell, Ex
parte Herbert,  1 K.B. 594, p. 598.
16. House of Commons c. C.L.R.B.,
 2 C.F. 372, pp. 384 et 385 - Arthur Beauchesne, Parliamentary Rules
and Forms,, 4th edition, Toronto, Carswell, 1964, p. 329, s. 446.
17. Reference Re Resolution to
Amend the Constitution,  1 R.C.S. 753, p. 785.
18. Edinburgh and Dalkeith Ry.
Co. v. Wauchope, (1842), 8 Cl. & F. 710, p. 725.
19.  52 D.L.R. (3d) 512 (Ont.
H.C.), p. 514.
20. See note 14, pp. 784 et 785.
21.  2 S.C.R. 525.
22. Ibid., p. 559.
24. Rail & Water Terminal of
Montreal Ltd v. Compagnie de Gestion de Matane Inc.,  C.S. 102
(Qué. S.C.), p. 104. See also Bilston Corp. v. Wolverhampton Corp.,
 1 Ch. 391 and Berthiaume c. DuTremblay,  Qué. R.P. 328. In
the latter case, an interim injunction was issued to prevent the introduction
of a private bill before the Quebec legislature. The decision was strongly
criticized by the Honourable Bora Laskin in an article published in the Canadian
Bar Review, 1955, vol. 33. In Rediffusion (Hong Kong) Ltd. v.
A.-G. Hong Kong,  A.C. 1136, the Judicial Committee of the Privy
Council refused to allow an injunction to be issued to prevent the legislative
Council of Hong Kong from passing a statute ultra vires.
25. Guy Bertrand v. L’Honorable
Paul Bégin et l’Honorable Jacques Parizeau et Me Pierre-F. Côté, Quebec,
September 8, 1995, No. 200-05-002117-955, Judge Lesage (Quebec Supreme Court).
26. Ibid. p. 7.
27. Ibid., p. 8.
28. Ibid. p. 11.
29. Ibid. p. 12.
30. Ibid., p. 18.
31. Ibid., p. 40.
32. Ibid., pp. 41 - 42.
33.  2 S. C.R. 573.
34. Ibid. p. 597.
35. Ibid. p. 598.
36.  3 S.C.R. 229.
37. Ibid. p. 261.
38. Ibid. p. 265.
39. The Legislative Council of
Quebec was abolished by the Act respecting the Legislative Council,
S.Q., 1968, c. 9, art. 1.
40. See note 33, p. 598.
41. Ibid. p. 599.
42. See note 36, p. 263.
43. See note 6.
44. Ibid. p. 341.
45. Ibid. p. 342.
47. Ibid. p. 343.
48. Ibid. p. 356.
49. Ibid. p. 359.
50. Ibid. p. 360.
52. Ibid. p. 361.
54. Ibid. p. 362.
55. Ibid. p. 363.
56. Ibid. p. 364.
57. Ibid. p. 365.
58. Ibid. p. 367.
59. Ibid. p. 364.
60. R.S.Q. c. A-23.1, preamble and
ss. 9, 42-46, 51.
61. See, for example, the House
of Assembly Act, R.S.N.S. 1989, c. 210.
62. See note 36, p. 269, Judge La
63. Stoffman v. Vancouver
General Hospital,  3 S.C.R. 483, p. 511, Judge La Forest.
64. The majority includes Justices
L’Heureux-Dubé, Gonthier, McLachlin, Iacobucci and La Forest.
65. See note 6, p. 368.
66. Ibid. p. 372.
69. Ibid. pp. 393 et 394.
70. Ibid. p. 369.
71. Ibid. p. 373. See also
Reference re Bill, 30, An Act to amend the Education Act (Ont.), 
1 S.C.R. 1148.
72. Ibid. pp. 395 - 396.
73. Ibid. p. 396.
74. Ibid. p. 397.
77. Ibid. p. 398.
79. Ibid. p. 399.
80. Ibid. p. 401.
81. Ibid. As the Chief Judge
mentions in response to this question raised by Justice Cory, "the
existence and extent of these privileges are subject to judicial review quite
apart from the Charter." (p. 365).
83. Ibid. p. 409.
84. Ibid. p. 409.
85. Ibid. pp. 413 - 414.
86. Namely freedom of speech,
freedom from arrest in civil process, exemption from jury service and the
privilege relating to members summoned as witnesses.
87. "7. Everyone has the right
to life, liberty and security of the person and the right not to be deprived
thereof except in accordance with the principles of fundamental justice."
88. See Kielley v. Carson,
(1842) 4 Moore P.C.C. 63, 13 E.R. 225 (P.C.) – Doyle v. Falconer, (1866)
L.R. 1 P.C. 328 – Landers v. Woodworth, (1878) 2 S.C.R. 158.
89. See note 71.
90. See note 55.
91. See notes 62 and 63.
92. MacLean v. Nova Scotia,
76 N.S.R. (2d) 296.
93. S.N.S. 1986, c. 104.