At the time this article was
written Diane Davidson was General Legal Counsel of the House of Commons
The absolute authority of the
Houses of Parliament and of legislative assemblies to control their proceedings
has been upheld by the Supreme Court of Canada in Donahoe v. Canadian
Broadcasting Corporation [hereinafter Donahoe]1. On January 21, 1993, the
Supreme Court reasserted the necessary independence of the different branches
of government and chose to avoid any institutional confrontation between the
courts and Parliament or legislative assemblies. The Court declined to review,
under the Charter of Rights and Freedoms [hereinafter Charter],2 a proper
exercise of privilege by the Nova Scotia House of Assembly. It refused to
adjudicate whether the House was right or wrong in refusing CBC access to the
galleries of the House. As Chief Justice Lamer stated:
… historically, the courts
have been careful to respect the independence of the legislative process just
as legislators have been careful to protect the independence of the
judiciary …. In Canada, it is through the privileges inherent in all legislative
bodies that the provincial Houses of Assembly are able to control their own
proceedings and thereby maintain the independence of the legislative process.3
The decision confirmed that the
entrenchment of the Charter has not changed the manner in which the Houses of
Parliament and legislative assemblies exercise their constitutionalright to
remove visitors, including members of the press, from their chambers. The Court
disagreed with CBC that the courts had acquired jurisdiction to review a proper
exercise of privilege that infringed upon a Charter right or freedom.
Interestingly, Chief Justice Lamer commented that even if the Charter had
applied to this exercise of privilege, the House itself and not the courts
might have constituted the "court of competent jurisdiction" for
purposes of hearing such claims and granting remedies.
The case involved a claim by CBC
that its reporters had a constitutional right to film the proceedings of the
Nova Scotia House of Assembly with their own hand-held cameras. Speaker Donahoe
argued that the decision to use portable cameras in the galleries would
interfere with the decorum and orderly conduct of the proceedings of the
Assembly and refused to grant such permission based on the unfettered right of
the Assembly to control the conduct and the publication of its proceedings.
The Speaker was also concerned that
to allow this infringement of parliamentary privilege would lead to further
Charter challenges concerning such things as the imposition of closure, decisions
of committees to meet in camera or the non-recognition of a member by the
Speaker during the course of parliamentary proceedings.
CBC applied to the Nova Scotia
Supreme Court for an order allowing it to film the proceedings based on section
2(b) of the Charter which guarantees freedom of expression, including freedom
of the press. The Trial Division and the Court of Appeal both ruled in favour
of CBC. The Supreme Court of Canada allowed the appeal and overturned the
decisions of the lower courts. The Court divided 7 to 1.
The Substantive Issues
Among the substantive issues
considered in this decision were the following:
A definition of parliamentary
privilege based on the doctrine of necessity
Traditionally, the courts have
declined jurisdiction to review the appropriateness of a particular exercise of
parliamentary privilege. However, the existence and extent of privilege has
always been subject to judicial review. The Supreme Court decision has not
altered the basic doctrine of judicial review of privilege.
It has, however, clarified that in
order to determine whether a particular matter properly falls within the realm
of privilege, the House or legislative assembly must demonstrate that the
matter is necessary for the legislature to function. At page 17 of his reasons
Chief Justice Lamer describes the doctrine of necessity as follows:
… the content and extent of
parliamentary privileges have evolved with reference to their necessity. In
Precedents of Proceedings in the House of Commons (3rd ed. 1796) vol. 1,
John Hatsell defined at p. 1 the privileges of Parliament as including
those rights which are "absolutely necessary for the execution of its
power". It is important to note that, in this context, the justification
of necessity is applied in a general sense. That is, general categories or
privilege are deemed necessary to the discharge of the Assembly's function.
Each specific instance of the exercise of a privilege need not be shown to be
In the Donahoe case the Court only
considered if the general power of the House of Assembly to exclude strangers
from its proceedings was necessary to the efficient conduct of its proceedings,
without reviewing the particular decision of the House to exclude CBC cameras.
McLachlin J. summarized the Court's view at pages 27-28:
… the issue here is the power
of the legislative assembly to restrict what members of the public attending
the proceedings may do while in the chamber, and to expel them if they refuse
to comply. More specifically, the issue is the right of the media to film
proceedings with their own cameras, and to enjoy control over the subsequent
production and use of the film taken. The Speaker of the House of Assembly of
Nova Scotia is of the view that access of this sort would interfere with the
decorum and the efficacious proceedings of the House and has ruled against it.
In doing so he acts within the ambit of his constitutional power to control the
attendance in the House. There is no more cause for a court to review that
decision than there would be for a legislature to review the decision of a
court to exclude activities in the courtroom which it deems to interfere with
the business of the court.5
The Court further referred to its
decision in Payson v. Hubert6, where it stated that there existed no public
right of access to the chamber and that any authorization to attend the
proceedings could be withdrawn at any time as a matter of decorum.
The constitutional nature of
The Supreme Court recognized that
the right of the House of Assembly to control its proceedings and to exclude
strangers were inherent privileges which formed an integral part of the
Constitution. Freedom of the press as contained in the Charter could not
encroach or nullify a proper exercise of these constitutional powers of the
House. On the other hand, the majority decision cautioned the House of Assembly
that it enjoyed no general immunity from Charter review when exercising
statutory powers even though the House and its members enjoyed constitutional
immunity when exercising their inherent privileges.
The crucial point of the decision
resides in the recognition that when exercising their privileges the members
are exercising constitutional rather than mere statutory powers. The majority
confirmed that the privilege to maintain the dignity and efficiency of the
House was necessary and inherent and undoubtedly constitutional in nature. The
Supreme Court rejected the view that parliamentary privileges, having been
defined in legislation, should be considered only statutory in nature.
The Court determined that the
preamble of the Constitution Act, 18677 guaranteed the continuance of
parliamentary governance by proclaiming an intention to establish "a
constitution similar in Principle to that of the United Kingdom". Since
Canadian legislative bodies were styled on the United Kingdom parliamentary
system they undoubtedly inherited similar powers necessary to their proper
functioning. As a result, parliamentary privileges were constitutionalized.
The application of the Charter
to legislative bodies
The majority of the Supreme Court
rejected the conclusion that a legislative assembly could never be subject to
the Charter. It was argued by the appellant that the term
"legislature" contained in section 32 of the Charter referred to
matters for which the legislative body and the Lieutenant-Governor were jointly
responsible. The Court disagreed with this view.
According to the majority, the
Charter applied not only to the body capable of enacting legislation but also
to its operative components taken individually. It was decided that the Charter
applied to a legislative body except when it was acting in the exercise of its
inherent privileges and that the arguments based on section 32 of the Charter
were inconclusive. The Charter could therefore apply when a legislative body
impinges on individual freedoms in areas not protected by privilege.
The dissenting opinion
concerning the right of the media to film the debates of a legislative body
Mr. Justice Cory, the only
dissenting judge, would have allowed the appeal and permitted CBC to film the
proceedings of the Nova Scotia House of Assembly with its own cameras. In his
view the Charter applied to the legislative assembly. While he agreed that
television cameras could in certain circumstances be prevented from becoming
too intrusive, he considered access by the media to be an essential and
necessary means for the citizens of Nova Scotia to be assured that their
elected representatives were conscientiously performing their functions in the
best interests of Nova Scotians. He concluded that the House of Assembly had
exceeded its jurisdiction over parliamentary privilege when it decided to ban
The doctrine of necessity as set
out by the Supreme Court should persuade parliamentary institutions not to
consider parliamentary privileges as absolute rights and to reassess whether in
a modern Canadian democracy they remain indispensable to the efficacious
functioning of the institution. The Supreme Court considered as evidence of
necessity the fact that the right of legislative assemblies to exclude
strangers had been upheld for centuries both abroad and in Canada. The Court
also considered the fact that this right remains one of the highest importance,
and found that undisturbed debate in the chamber was essential to the proper
functioning of the House of Assembly. While the Supreme Court asserted that the
courts had jurisdiction to review whether a claim of privilege made by the
House was necessary to the conduct of its proceedings, it clearly stated that
once a court is convinced of such necessity it has no authority to inquire into
the rightness or wrongness of the exercise of privilege in a particular case.
By legislating on matters which may
have otherwise been covered by privilege, the Houses of Parliament and
legislative assemblies subject themselves to judicial review. The Houses and
assemblies should be cautious in diminishing their powers by legislating rules
of conduct and of process or by creating bodies which have authority over their
internal proceedings. In doing so, legislative bodies could be fundamentally
altering their relationship with the judiciary in matters over which they were
initially constitutionally supreme.
The Supreme Court reaffirmed its
long-standing tradition of curial deference to the independence of legislative
assemblies and to the rights and immunities judged necessary to their
functioning. However, the Court ruled that the Charter had granted the courts
new authority to review actions of public bodies which may violate individual
rights and freedoms, including the actions of legislative bodies which are not
protected by parliamentary privilege. In particular, legislative assemblies
should be mindful of the fact that decisions falling outside the purview of
legislative deliberations may now be subject to Charter review if the courts
determine that they are not rendered in the context of the exercise of a
In the final analysis, the Supreme
Court maintained that our parliamentary democracy contains the necessary checks
and balances to prevent an improper exercise of parliamentary privilege. While
they were not subject to judicial review, members of the Nova Scotia House of Assembly
remained accountable to the electorate with respect to the exercise of
1. Indexed as New Brunswick
Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), 
S.C.J. No. 2, File No.: 22457.
2. Part I of the Constitution Act,
1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c.11.
3. Supra, note 1 at 31.
4. Supra, note 1.
5. Supra, note 1.
6. (1904), 34 S.C.R. 400.
7. (U.K.), 30 & 31 Vict., c.3
(formerly British North America Act, 1867).