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New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319

 

Arthur Donahoe in his capacity

as the Speaker of the House of

Assembly                                                                                            Appellant

 

v.

 

Canadian Broadcasting Corporation                                                Respondent

 

and

 

The Honourable Guy Charbonneau, Speaker

of the Senate, the Honourable John Fraser,

Speaker of the House of Commons,

the Honourable David Warner, Speaker of the

Legislative Assembly of the province of Ontario,

the Honourable Jean‑Pierre Saintonge,

President of the National Assembly of Quebec,

the Honourable Denis Rocan, Speaker of the

Legislative Assembly of the province of Manitoba,

the Speaker of the Legislative Assembly of the

province of British Columbia, the Honourable

Edward W. Clark, Speaker of the Legislative Assembly

of the province of Prince Edward Island,

the Honourable Herman Rolfes, Speaker of the

Legislative Assembly of the province of Saskatchewan,

the Honourable David John Carter, Speaker of the

Legislative Assembly of the province of Alberta,

the Honourable Thomas Lush, Speaker of the House

of Assembly of the province of Newfoundland,

the Speaker of the Legislative Assembly of the

Northwest Territories, the Speaker of the

Legislative Assembly of the Yukon, the

Attorney General for Ontario, the Attorney

General of British Columbia and the Canadian

Association of Journalists                                                                             Interveners

 

Indexed as:  New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly)

 

 

File No.:  22457.

 

1992:  March 2, 3; 1993:  January 21.

 

Present:  Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Stevenson* and Iacobucci JJ.

 

on appeal from the nova scotia supreme court, appeal division

 

                   Constitutional law ‑‑ Charter of Rights  ‑‑ Application of Charter  ‑‑ Provincial legislatures ‑‑ Parliamentary privileges -- Nova Scotia House of Assembly refusing media access to public gallery to film proceedings with their own cameras -- Whether Charter applicable to a legislative assembly ‑‑ Whether exercise of privileges by members of a legislative assembly subject to Charter  review -- Canadian Charter of Rights and Freedoms, s. 32(1) (b).

 

                   Constitutional law -- Charter of Rights  -- Freedom of expression -- Provincial legislature refusing media access to public gallery to film proceedings with their own cameras -- Whether refusal infringes guarantee of freedom of expression -- Canadian Charter of Rights and Freedoms, s. 2 (b).

 

                   Constitutional law ‑‑ Parliamentary privileges ‑‑ Provincial legislatures -- Whether privileges of a provincial legislature part of Constitution of Canada -- Constitution Act, 1867 , preamble.

 

                   The respondent made an application to the Nova Scotia Supreme Court, Trial Division for an order allowing it "to film the proceedings of the House of Assembly with its own cameras".  The application was based on s. 2 (b) of the Canadian Charter of Rights and Freedoms , which guarantees freedom of expression, including freedom of the press.  The media have regular access to the public gallery in the House where they may witness the proceedings and they also have access to Hansard, but the House of Assembly, in the exercise of its parliamentary privileges, has prohibited the use of television cameras in the House, except on special occasions.  The respondent claimed that it was possible to film the proceedings from the public gallery with modern hand‑held cameras which were both silent and required no special lighting or electrical equipment.  In his evidence, the Speaker indicated that the respondent's proposal would interfere with the decorum and orderly proceedings of the House.  Apart from controlling decorum, the House would have no control over the production and use of the film.  The trial judge granted the respondent's claim and the Appeal Division confirmed its right of access, pursuant to s. 2 (b) of the Charter , to televise the proceedings of the House from the gallery with its own unobtrusive cameras.  The question as to whether any limits could be placed on this right of access was left open.

 

                   Since the judgment of the Appeal Division, the House of Assembly's proceedings have been televised through a system approved and controlled by the House.  The cameras of the "electronic Hansard" record only the member recognized by the Speaker as having the floor.  A direct feed of the "electronic Hansard" is available to the media who are able to broadcast the proceedings live or tape them.

 

                   The constitutional questions stated here queried (1) whether the Charter  applies to the members of the House of Assembly when exercising their privileges as members; (2) if so, whether exercising a privilege so as to refuse access to the media to the public gallery to record and relay to the public proceedings of the House of Assembly by means of their cameras contravenes s. 2 (b) of the Charter ; and (3) if so, whether such refusal is justifiable under s. 1  of the Charter .

 

                   Held (Cory J. dissenting):  The appeal should be allowed.

 

                   Per La Forest, L'Heureux‑Dubé, Gonthier, McLachlin and  Iacobucci JJ.: 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.

 

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                   Per L'Heureux‑Dubé, Gonthier, McLachlin and Iacobucci JJ.:  A textual and purposive approach to s. 32(1)  of the Charter  does not support the conclusion that a legislative assembly can never be subject to the Charter .  By the terms of the Charter  itself, the word "legislature" in s. 32(1)  cannot conclusively be narrowly defined to cover only those actions for which the legislative body and the Queen's representative are jointly responsible.  Further, the tradition of curial deference does not extend to everything a legislative assembly might do, but is firmly attached to certain specific activities ‑‑ the privileges ‑‑ of legislative assemblies.  Without deciding that the legislative assembly is a government actor for all purposes, as a public body it might be capable of impinging on individual freedoms in areas not protected by privilege.  The legislative assembly could, therefore, fall within the rationale for regarding such bodies as government actors subject to the Charter .  Absent specific Charter  language to the contrary, however, the long history of curial deference to the independence of the legislative body, and to the rights necessary to the functioning of that body, cannot be lightly set aside, even conceding that our notions of what is permitted to government actors have been significantly altered by the enactment and entrenchment of the Charter .

 

                   The Charter  does not apply to the House of Assembly's action at issue in this appeal.  The privilege of the legislative assembly to exclude strangers enjoys constitutional status as part of the Constitution of Canada, and hence cannot be abrogated by another part of the Constitution.  The House of Assembly has the constitutional power to exclude strangers from its chamber by virtue of the preamble to the Constitution Act, 1867 , which proclaims an intention to establish "a Constitution similar in Principle to that of the United Kingdom".  This preamble constitutionally guarantees the continuance of Parliamentary governance and, given Canadian federalism, this guarantee extends to the provincial legislatures in the same manner as to the federal Parliament.  The Constitution of the United Kingdom recognized certain privileges in the British Parliament.  Since the Canadian legislative bodies were modelled on the Parliamentary system of the United Kingdom, they possess similar, although not necessarily identical, powers.  Given the clear and stated intention of the founders of our country that Canada retain the fundamental constitutional tenets upon which British parliamentary democracy rested, it seems indisputable that the inherent privileges of Canada's legislative bodies, historically recognized as necessary to their proper functioning, fall within the group of principles constitutionalized by virtue of the preamble.  This is not a case of importing an unexpressed concept into our constitutional regime, but rather of recognizing a legal power fundamental to the constitutional regime which Canada has adopted.  The definition of "Constitution of Canada" in s. 52(2)  of the Constitution Act, 1982  is not clearly meant to be exhaustive and the interpretation of that section  should not be restricted in such a way as to preclude giving effect to the intention behind the preamble to the Constitution Act, 1867 , thereby denying recognition to the minimal, but long recognized and essential, inherent privileges of Canadian legislative bodies.

 

                   From an historical perspective, Canadian legislative bodies had, from their inception, those privileges which were necessary for the maintenance of order and discipline during the performance of their duties.  These privileges are part of the fundamental law of our land, and hence are constitutional.  While courts may determine if the privilege claimed is necessary to the capacity of the legislature to function, they have no power to review the rightness or wrongness of a particular decision made pursuant to the privilege.

 

                   Finally, from a practical point of view, a legislative body must possess such constitutional powers as are necessary for its proper functioning.  An absolute right to exclude strangers from its chamber, when it deems them to be disruptive of its efficacious operation, is a valid category of privilege founded on necessity.  This privilege is as necessary to modern Canadian democracy as it has been to democracies here and elsewhere in past centuries.

 

                   The Speaker of the House of Assembly ruled against the media's demands because he was of the view that they would interfere with the decorum and efficacious proceedings of the House.  In doing so, he acted within the ambit of his constitutional power to control attendance in the House.  It follows that this constitutional power cannot be abrogated by the Charter .  At issue is a valid constitutional power. To subject this power to the Charter  would be to negate this power. Were the issue here an action taken pursuant to a valid power, that action might be subject to Charter  scrutiny.

 

                   La Forest J.'s reasons were also agreed with.

 

                   Per La Forest J.:  The reasons of McLachlin J. were generally agreed with, subject to the following comments. When the British government granted a legislative assembly to a colony, the grant carried with it, as an adjunct, the powers (or parliamentary privileges) necessary for that body to carry out its functions, in particular the power to regulate its internal processes, but not the broader parliamentary privileges of the British Parliament. The legislative assembly, with its concomitant privileges, was part of the colony's constitution, and in the case of the pre‑existing provinces, like Nova Scotia, was continued by the Constitution Act, 1867 .  Parliamentary legislative privileges in Nova Scotia are, therefore, ultimately anchored in the grant of a legislative assembly and incorporated into the Constitution Act, 1867 .  The new legislative bodies created by that Act and subsequent constitutional instruments are governed by the same principle.  The preambular statement in the Constitution Act, 1867 , that what was desired was "a Constitution similar in Principle to that of the United Kingdom", among other things, gives expression to the nature of the legislative bodies that were continued or established by it.  The privileges of these bodies are similar in principle, though not identical, to those of the Parliament of the United Kingdom.

 

                   Per Lamer C.J.:  The Houses of Parliament and the provincial legislative assemblies, and their members, hold and exercise parliamentary privileges which are necessary to the discharge of their legislative function.  These privileges are held as against the Crown and the judiciary.  Courts can inquire into the existence and extent of privilege, but not its exercise.  Since general categories of 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 necessary.  In the United Kingdom, privilege evolved from a history of conflict between the Houses of Parliament, the Crown and the courts.  Given its historical development, the source of those privileges is constitutional in the most fundamental sense in that it has everything to do with the relationships between the different branches of government.  In Canada, however, the colonial legislative assemblies were held to have certain inherent powers simply by virtue of their creation.  The inherent powers of the Canadian assemblies are not as broad as those of the Houses of Parliament of the United Kingdom.  Powers beyond the inherent privileges of the Canadian legislatures can be granted to them by statute.

 

                   While the Constitution of Canada is undoubtedly founded upon many of the same broad principles as is the Constitution of the United Kingdom, the wording of the preamble of the Constitution Act, 1867  ‑‑ "a Constitution similar in Principle to that of the United Kingdom" ‑‑ cannot, without specific reference, be taken to transplant directly art. 9 of the English Bill of Rights of 1689 into our Constitution, and thereby incorporate the privileges of legislative bodies.  History makes clear that the different paths of evolution of government in the two jurisdictions led to significant differences in the branches of government themselves from the very beginning.  Canada has  diverged further in recent years with the patriation of its Constitution in 1982.  Similar in principle does not mean identical in the powers granted.

 

                   In light of the conclusion below concerning s. 32  of the Charter , it is unnecessary to determine whether the privileges of provincial legislative assemblies have a constitutional status which would make them immune to Charter  review.

 

                   Section 32 , as it relates to the application of s. 2 (b) of the Charter , does not encompass the members of the House of Assembly when exercising their inherent privileges.  The House of Assembly does not fall within the words "legislature" or "government" in s. 32  since the term "government" refers to the executive or administrative branch of government and the term "legislature" refers to the body capable of enacting legislation, and not to its component parts taken individually.  The House of Assembly is a component of the legislature but only together with the Lieutenant Governor does it comprise the legislature.  The language, structure and history of the constitutional text support that conclusion.  Section 32  specifically refers to "all matters within the authority of the legislature".  This is the language of legislation and is a clear reference to legislative authority.  Section 33  of the Charter  strengthens this interpretation.  Further, the distinction between the federal or provincial legislatures and their component parts is observed with reasonable consistency in the Constitution Act, 1867  and in the language employed in the amending provisions set out in Part V of Schedule B of the Constitution Act, 1982 .  There are certain provisions in the Charter , notably ss. 5 , 17  and 18 , in relation to which the specific context requires a different meaning.  While these sections 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.  The place and importance of legislative privileges in our political life and the long-standing practice of judicial non‑interference resolve any residual ambiguity concerning the interpretation of s. 32  as it relates to the application to the House of the rights guaranteed under s. 2 (b) of the Charter .

 

                   Privileges are clearly "matters within the authority of the legislatures of each province" in the sense that the provincial legislatures have the power to legislate in relation to privileges.  The legislation that the provinces have enacted with respect to privileges will be reviewable under the Charter  as is all other legislation.  It does not follow, however, 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.  Here, given the long-standing acceptance of the power to exclude strangers and to control the internal proceedings of the House as valid categories of privilege founded on necessity, in this country as well as in the United Kingdom, the ban by the members of the House of Assembly on the use of independent video cameras in the House fell within their inherent privileges.

 

                   Per Sopinka J.:  The impugned rule or practice of the legislative assembly is not immune from Charter  scrutiny.  The privileges of the members of the legislative assembly are subject to legislation by the province as part of the constitution of the province.  The exercise of those 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  of the Charter .  One implication of treating those privileges as part of the Constitution of Canada is that they would arguably not be subject to provincial legislation and any change would require an amendment pursuant to s. 43  or s. 38  of the Constitution Act, 1982 .  One would expect something more than a general reference to "a Constitution similar in Principle" in a preamble in order to have this effect.

 

                   With the system currently used to broadcast the proceedings of the House of Assembly, the media are not allowed to have their hand‑held cameras in the public gallery.  The effect on the publication of news is that they are prevented from obtaining the reaction of the members who are not speaking. The inability to gather news can occasion a restriction on freedom of the press if it interferes with disseminating the news, but this Court has not yet  determined whether the protection of s. 2 (b) of the Charter  extends to the means by which the gathering and dissemination of news is done.  In any event, assuming that the restriction complained of constitutes a violation of s. 2 (b), it is justifiable under s. 1  of the Charter .  The exercise of the historic privilege in issue in this appeal is a pressing and substantial objective.  That objective is to maintain order and decorum and ensure the smooth functioning of the legislative assembly.  The present restriction on the number and location of cameras is rationally connected with the objective.  While some other method might have been equally effective, the procedure which has been adopted appears eminently sensible and the Court should not second guess the legislative assembly who studied the matter and adopted a method which ensures that in essence the proceedings of the Assembly are made available to the television viewing audience.  Finally, given the importance of preserving the decorum of the House of Assembly, the alleged intrusion on the freedom of the press is not out of proportion to this objective.

 

                   Per Cory J. (dissenting):  Given a broad and liberal interpretation, the words "legislature" and "government" in s. 32(1)  of the Charter  include the House of Assembly.  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 is a public actor.  It follows that the Charter  should apply to the actions of the House of Assembly, which include not only the legislation passed by the Assembly but also its own rules and regulations.  The rules and regulations, if they are found to violate the Charter , can, like the Acts passed by the Assembly, be saved under s. 1 .  Such a procedure would ensure that the courts never unduly interfere with the inherent and enacted rights and privileges possessed by a legislature which enable it to effectively carry out its role.

 

                   The ban on television cameras is an exercise of privilege by the legislative assembly subject to the Charter  scrutiny.  While the legislatures of this country possess such constitutional privileges as are necessary for their operation, courts may, when properly called upon, enquire as to whether a particular exercise of parliamentary privilege falls within the privileged jurisdiction of the legislature.  The exercise of the constitutional power of privilege is not entrenched in the Constitution of Canada and the Charter  must apply to the exercise of that parliamentary privilege.  Here, the privilege of the House of Assembly represents an exercise of legislative authority over itself and members of the media and is reviewable.  The test for review is one of necessity.  A complete prohibition on cameras is not essentially necessary to the operation of the House, nor would the presence of cameras automatically constitute an immediate obstruction.  Such a rule falls outside the constitutional scope of parliamentary privilege.  The House of Assembly, when it banned all cameras, exceeded the jurisdiction inherent in parliamentary privilege.

 

                   There is an infringement of s. 2 (b) of the Charter  when a legislative assembly denies any media, or one form of media, access to its public debates.  The protection of news gathering does not constitute a preferential treatment of an elite or entrenched group ‑‑ the media ‑‑ but rather constitutes an ancillary right essential for the meaningful exercise of the Charter .  Since the television media constitute an integral part of the press, a prohibition on television cameras is by definition a restriction on freedom of the press.  So long as the camera is neither too pervasive nor too obtrusive, there can be no good reason for excluding it.  The legislative assembly does have a right, in appropriate circumstances, to exclude or remove visitors including members of the press.  It may also, with regard to the attendance of television media, limit the number of cameras and their location and regulate their manner of operation.  What the Assembly cannot do is to exclude television entirely by means of regulation without infringing s. 2 (b).  A balance must be kept between efficient and dignified operation of the legislative assembly and the right of freedom of expression.  The system currently used in the House of Assembly is eminently fair and suitable and would be justifiable under s. 1  of the Charter .  The refusal to permit any television cameras, however, contravenes s. 2 (b) of the Charter  and cannot be justified under s. 1 .

 

Cases Cited

 

By McLachlin J.

 

                   Applied:  Reference re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148; distinguished:  Reference re Provincial Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158; referred to:  McKinney v. University of Guelph, [1990] 3 S.C.R. 229; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441; Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211; Reference re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753; Kielley v. Carson (1842), 4 Moore 63, 13 E.R. 225; Fielding v. Thomas, [1896] A.C. 600; Landers v. Woodworth (1878), 2 S.C.R. 158; Stockdale v. Hansard (1839), 9 Ad. & E. 1, 112 E.R. 1112; Payson v. Hubert (1904), 34 S.C.R. 400.

 

By Lamer C.J.

 

                   Referred to:  Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; Reference re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148; Bradlaugh v. Gossett (1884), 12 Q.B.D. 271; Stockdale v. Hansard (1839), 9 Ad. & E. 1, 112 E.R. 1112; Kielley v. Carson (1842), 4 Moore 63, 13 E.R. 225; Landers v. Woodworth (1878), 2 S.C.R. 158; Fielding v. Thomas, [1896] A.C. 600; Beauregard v. Canada, [1986] 2 S.C.R. 56; Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483; Payson v. Hubert (1904), 34 S.C.R. 400; Dixon v. British Columbia (Attorney General) (1986), 7 B.C.L.R. (2d) 174; Jay v. Topham (1689), 14 East. 102 (note (a)), 104 E.R. 540; MacLean v. Attorney‑General of Nova Scotia (1987), 35 D.L.R. (4th) 306; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Southam Inc. v. Canada (Attorney General), [1990] 3 F.C. 465.

 

By Sopinka J.

 

                   Referred to:  Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441; Fielding v. Thomas, [1896] A.C. 600; R. v. Mercure, [1988] 1 S.C.R. 234; Reference re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148.

 

By Cory J. (dissenting)

 

                   RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Reference re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148; Reference re Provincial Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158; Landers v. Woodworth (1878), 2 S.C.R. 158; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; Canadian Broadcasting Corp. v. Lessard, [1991] 3 S.C.R. 421; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1991] 3 S.C.R. 459; Sigma Delta Chi v. Speaker, Maryland House of Delegates, 310 A.2d 156 (1973); Branzburg v. Hayes, 408 U.S. 665 (1972); Houchins v. KQED, Inc., 438 U.S. 1 (1978); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980).

 

Statutes and Regulations Cited

 

Bills of Rights of 1689 (Eng.), 1 Will. & Mar. sess. 2, c. 2, art. 9.

 

Canadian Charter of Rights and Freedoms, ss. 1 , 2 (b), 5 , 12 , 17 , 18 , 24(1) , 32(1) , 33 .

 

Constitution Act, 1867 , preamble, ss. 17 , 18 , 20  [repealed], 21 to 36, 37 to 52, 69, 71, 88, 92, 133.

 

Constitution Act, 1982, ss. 38 , 43 , 45 , 52 .

 

House of Assembly Act, R.S.N.S. 1989, c. 10, s. 6.

 

Authors Cited

 

Dawson, R. MacGregor.  The Government of Canada, 5th ed.  Revised by Norman Ward.  Toronto:  University of Toronto Press, 1970.

 

Gibson, Dale.  "Distinguishing the Governors from the Governed:  The Meaning of "Government" under Section 32(1)  of the Charter " (1983), 13 Man. L. J. 505.

 

Hatsell, John.  Precedents of Proceedings in the House of Commons, vol. 1, 3rd ed.  London:  T. Payne, 1796.

 

Hogg, Peter W. Constitutional Law of Canada, vol. 1, 3rd ed. (Supplemented).  Scarborough, Ont.:  Carswell, 1992 (loose‑leaf).

 

Maingot, Joseph.  Parliamentary Privilege in Canada.  Toronto:  Butterworths, 1982.

 

May, Erskine. Treatise on The Law, Privileges, Proceedings and Usage of Parliament, 21st ed.  By C. J. Boulton.  London:  Butterworths, 1989.

 

McLelland, A. Anne, and Bruce P. Elman.  "To Whom Does the Charter  Apply?  Some Recent Cases on Section 32 " (1986), 24 Alta. L. Rev. 361.

 

Redlich, Josef.  The Procedure of the House of Commons, vol. I.  Translated from the German by A. Ernest Steinthal.  London:  Archibald Constable & Co., 1908.

 

Shattuck, John H. F., and Fritz Byers.  "An Egalitarian Interpretation of the First Amendment" (1981), 16 Harv. C.R.‑C.L. L. Rev. 377.

 

Swinton, Katherine.  "Application of the Canadian Charter of Rights and Freedoms ".  In Walter S. Tarnopolsky and Gérald‑A. Beaudoin, eds., The Canadian Charter of Rights and Freedoms :  Commentary.  Toronto:  Carswell, 1982, 41.

 

Tassé, Roger.  "À qui incombe l'obligation de respecter les droits et libertés garantis par la Charte canadienne des droits et libertés ?".  In Gérald‑A. Beaudoin, ed., Your Clients and the Charter ‑‑ Liberty and Equality. Proceedings of the October 1987 Colloquium of the Canadian Bar Association in Montréal.  Cowansville:  Yvon Blais, 1987, 35.

 

                   APPEAL from a judgment of the Nova Scotia Supreme Court, Appeal Division (1991), 102 N.S.R. (2d) 271, 279 A.P.R. 271, 80 D.L.R. (4th) 11, 6 C.R.R. (2d) 298, allowing in part the appellant's appeal from a judgment of Nathanson J. (1990), 97 N.S.R. (2d) 365, 258 A.P.R. 365, 71 D.L.R. (4th) 23, granting the respondent's claim for a declaration of a right of access pursuant to s. 2 (b) of the Canadian Charter of Rights and Freedoms  to televise the proceedings of the House of Assembly.  Appeal allowed, Cory J. dissenting.

 

                   Graham D. Walker, Q.C., Reinhold M. Endres and Gordon C. Johnson, for the appellant.

 

                   David G. Coles, James L. Connors, Daniel J. Henry and Kenda Murphy, for the respondent.

 

                   W. Ian C. Binnie, Q.C., Mark J. Freiman, for the intervener the Speaker of the Senate.

 

                   Robert E. Houston, Q.C., and Alan Riddell, for the intervener the Speaker of the House of Commons.

 

                   Neil Finkelstein and George Vegh, for the intervener the Speaker of the Legislative Assembly of Ontario.

 

                   Raynold Langlois, Q.C., and Luc Huppé, for the intervener the President of the National Assembly of Quebec.

 

                   Robert G. Richards and Deborah Carlson, for the interveners the Speaker of the Legislative Assembly of Manitoba and the Speaker of the Legislative Assembly of Saskatchewan.

 

                   W. S. Berardino, Q.C., and Mark D. Andrews, for the intervener the Speaker of the Legislative Assembly of British Columbia.

 

                   Sid M. Tarrabain, Edward J. Lieber and Michael P. Ritter, for the interveners the Speaker of the Legislative Assembly of Alberta, the Speaker of the Legislative Assembly of the Northwest Territories and the Speaker of the Legislative Assembly of the Yukon.

 

                   B. Gale Welsh, for the intervener the Speaker of the House of Assembly of Newfoundland.

 

                   M. David Lepofsky and Lori Sterling, for the intervener the Attorney General for Ontario.

 

                   Frank A. V. Falzon, for the intervener the Attorney General of British Columbia.

 

                   Richard G. Dearden, for the intervener the Canadian Association

of Journalists.

 

//Lamer C.J.//

 

                   The following are the reasons delivered by

 

                   Lamer C.J. -- There are three issues to be addressed in this appeal.  First, is the exercise of the privileges of the members of the Nova Scotia House of Assembly to exclude independent television cameras from the House immune from Charter  review?  Second, if not, does the exclusion of independent television cameras from the House violate the freedom of expression of the respondent?   Finally, if so, is that violation justified under s. 1  of the Canadian Charter of Rights and Freedoms ?

 

I. Facts

 

                   New Brunswick Broadcasting Co. Limited, carrying on business under the name of MITV commenced a proceeding in the Supreme Court of Nova Scotia, Trial Division, against the appellant by Originating Notice seeking an order "allowing MITV to film the proceedings of the House of Assembly with its own cameras or by the Speaker providing full television coverage to all members of the television media, or otherwise".  The Speaker joined issue.  The respondent was joined as a plaintiff at the corporation's request and MITV subsequently withdrew from the proceedings.

 

                   Nathanson J. of the Supreme Court of Nova Scotia, Trial Division, ordered that all of the members of the House be joined as defendants in the action.  This stemmed from the objections of the Speaker and the Attorney General that the House of Assembly could not be sued.  On the hearing of the application the respondent and MITV restricted their claim to a right to film the proceedings of the House of Assembly with their own cameras.  Affidavits were filed on the application and the parties were subsequently examined on their affidavits.  The following evidence was thereby disclosed.

 

                   The press have regular access to the press gallery in the House where they may witness the proceedings.  They also have access to the Hansard Report.  At the time when this action was commenced, the proceedings of the House were not televised and, except on special occasions, television cameras were not permitted in the House.  Studies were then being conducted into the feasibility of televising the proceedings.  Concerns being discussed included the necessity of substantial public expenditures as well as technical difficulties in providing an appropriate system.  The chamber is small and it was clear that it would be impossible to set up cameras on the floor of the House without interfering with the proceedings.  The respondent and MITV claimed, however, that it was possible to film the proceedings from the public gallery with modern hand-held cameras which were both silent and required no special lighting or electrical equipment.  This was the option favoured by members of the opposition in the Nova Scotia House of Assembly.

 

                   Since the judgment of the Court of Appeal in this case the above-mentioned efforts have resulted in the availability of television footage from an electronic (video) Hansard.  This system has been in place since May 1991.  Like the audio feed and the written Hansard, the electronic Hansard is under the control of the Speaker and televises only the member who has the floor.

 

                   It is clear from the evidence that the House of Assembly in the exercise of its parliamentary privileges has prohibited the use of television, with the exception of the recently installed electronic Hansard, in the House of Assembly.  The Speaker, Mr. Donahoe, was emphatic in his evidence that the proposal to use portable cameras in the gallery would interfere with the decorum and orderly proceedings of the Assembly.  Apart from controlling decorum, the House would have no control over the production and use of the film.  Mr. Donahoe favoured televising the proceedings of the House through a system approved and controlled by the House of Assembly, such as that now available.

 

                   The evidence further disclosed that television coverage is provided in the House of Commons in Ottawa and in the legislatures of five provinces and in the Yukon.  In Ontario the press is permitted to film from the gallery with hand-held television cameras.

 

                   On May 25, 1990, Nathanson J. of the Supreme Court of Nova Scotia, Trial Division, granted the claim of the respondent and MITV by way of the following order:

 

                   IT IS ORDERED that the claim of the plaintiffs is granted.

 

                   IT IS DECLARED that the plaintiffs have a right of access pursuant to s. 2 (b) of the Canadian Charter of Rights and Freedoms  to televise the proceedings of the House of Assembly from the galleries with their own unobtrusive cameras.

 

                   IT IS FURTHER DECLARED that such right of access is limited by the privileges of the House of Assembly, including a right to regulate the manner and extent of exercise of the right of access, reflected in rules which shall infringe freedom of expression as little as possible.

 

                   IT IS FURTHER ORDERED that the House of Assembly or the Speaker on its behalf shall develop such rules by receiving submissions from the plaintiffs, any other entities of the television media who express an interest, and the public.

 

                   IT IS FURTHER ORDERED that the court will retain jurisdiction to judge the timeliness of the actions of any of the parties and the reasonableness of the rules adopted.

 

                   AND IT IS FURTHER ORDERED that the Court reserves the matter of costs pending representations from counsel.

 

                   The appellant appealed to the Supreme Court of Nova Scotia, Appeal Division.  The effect of the judgment of Nathanson J. was stayed pending the outcome of the appeal.  On March 21, 1991 the appeal was dismissed.  The order of Nathanson J. was, however, varied, striking out the last four paragraphs.

 

                   The appellant was granted leave to appeal to this Court on May 16, 1991, [1991] 1 S.C.R. viii.

 

II.  Relevant Statutory and Constitutional Provisions

 

                   The relevant provisions of the Constitution Act, 1867  are the following:

 

                   [Preamble]  Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom:

 

                                                                   . . .

 

                   88.  The Constitution of the Legislature of each of the Provinces of Nova Scotia and New Brunswick shall, subject to the Provisions of this Act, continue as it exists at the Union until altered under the Authority of this Act.

 

                   The relevant provisions of the Charter  are the following:

 

                   1.  The Canadian Charter of Rights and Freedoms  guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

 

                   2.  Everyone has the following fundamental freedoms:

 

                                                                   . . .

 

(b)  freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

 

                   32. (1)  This Charter applies

 

                                                                   . . .

 

(b)  to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

 

                   The relevant provision of the Nova Scotia House of Assembly Act, R.S.N.S. 1989, c. 210, is the following:

 

                   36 (1)  In all matters and cases not specially provided for by an enactment of this Province, the House and the committees and members thereof respectively shall hold, enjoy and exercise such and the like privileges, immunities and powers as are from time to time held, enjoyed and exercised by the House of Commons of Canada, and by the committees and members thereof respectively.

 

III.  Judgments Below

 

Supreme Court of Nova Scotia, Trial Division (1990), 71 D.L.R. (4th) 23

 

                   Nathanson J. determined that the ban on filming from the public gallery in the Nova Scotia House of Assembly infringed the s. 2 (b) guarantee of freedom of expression under the Charter .  He emphasized that freedom of expression includes freedom of access to all pertinent information as well as freedom to impart such information.  He cited the cases of Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, and Edmonton Journal  v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, in support of this proposition.  He concluded (at p. 51):

 

                   Televising the proceedings of the House of Assembly from the galleries of the House is clearly an activity of expression, of the reception and communication of information which one might reasonably expect to come within the scope of the function of the press and other media, including the television media.

 

                   Nathanson J. then turned to the issue of parliamentary privilege and the impact, if any, it has on the issue.  He noted that there were four areas of parliamentary privilege that were raised in support of the ban on television cameras (at p. 52):

 

(a)freedom of speech, including immunity from civil proceedings with respect to any matter arising from the carrying  out of the duties of a member of the House of Assembly;

 

(b) exclusive control over their own proceedings;

 

(c) ejection of strangers from the House and its precincts; and

 

(d) control of publication of debates and proceedings in the House.

 

He found that these areas of privilege are included in those which were enjoyed by the House of Commons of the United Kingdom in 1867 and are therefore valid areas of privilege pursuant to s. 18  of the Constitution Act, 1867 .  Further, the presence of television cameras in the House of Assembly without the permission of the House would, in fact, be a breach of those privileges of the House.

 

                   Having outlined this conflict between the Charter  rights of the journalists and the privilege of the members of the House, Nathanson J. turned his attention to the issue of which should prevail.  Obviously, the Constitution is supreme so the question he posed was whether privileges are themselves part of the Constitution.  If they are not, it is clear that the Charter  prevails.  If they are, the Charter  cannot be used to disallow another part of the Constitution (Reference re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148).  Ultimately, he concluded that they are not and that, consequently, the Charter  rights prevail. 

 

                   The next question he addressed was whether the exercise of privilege is a government activity which is subject to Charter  review pursuant to s. 32 .  The appellant submitted that only legislative products of provincial legislatures are subject to Charter  review and further, that even if privileges are expressed in legislative form they do not attract Charter  scrutiny.  Nathanson J. did not accept these submissions holding instead that s. 32  applies to all actions of the legislature derived from common law.

 

                   Turning to s. 1 ,  Nathanson J. concluded that the objectives sought to be achieved by the ban of cameras are pressing and substantial, that the means sought to achieve them are rationally connected to the objectives, but that the means did not meet  the minimal impairment test.  He acknowledged that the ban was not a total blackout, but expressed the opinion that, nonetheless, means which would constitute a lesser impairment of the right to freedom of expression could be developed.

 

Supreme Court of Nova Scotia, Appeal Division (1991), 80 D.L.R. (4th) 11

 

                   Jones J.A. (for the majority)

 

                   Jones J.A. began his judgment by acknowledging that the power of the House to exclude members of the public was clear prior to the coming into force of the Charter .  This power flowed from the supremacy of Parliament in the British system where this supremacy is unobstructed by any precepts of a written constitution.   He noted that the adoption of the Charter  altered the Canadian Constitution such that it is no longer altogether similar in principle to that of the United Kingdom.

 

                   Jones J.A. turned to the question of whether the Charter  applies to the House of Assembly and arrived at the conclusion that it does (at p. 21):

 

                   Under s. 32(1), the Charter  applies to the legislature in respect of all matters within the authority of the legislature.  The privileges of the  House are matters within the authority of the legislature and indeed have been legislated upon.  Therefore the privileges are subject to the Charter .

 

He did not accept the argument that privileges are themselves part of the Constitution and that, therefore, they cannot be subject to Charter  scrutiny.  He considered the question and concluded that privileges are not expressly entrenched and that the simple mention of them in some sections is not sufficient to exempt the legislatures from complying with Charter  rights in so far as privileges are concerned.

 

                   Having determined that the Charter  applies, Jones J.A. turned to the question of whether banning cameras from the public gallery pursuant to parliamentary privilege is a violation of s. 2 (b).  He concluded that it is as the ban essentially prohibited a mode of expression.  He further concluded that the s. 1  test was not met as the ban is virtually total and "inconvenience or a desire to control the production is not sufficient when considering the fundamental right involved" (p. 40).  He noted that the reasons for allowing access are more compelling than those for disallowing (at p. 39): 

 

The public right of access to the House is essential to ensure public confidence in the operation of the legislature.  The public has a right to know how their taxes are being expended, whether their representatives are fulfilling their roles and what legislation which may affect their lives and their rights is being enacted.

 

He left open the question as to whether any limits can be placed on this right of access.

 

                   Hallett J.A. (in dissent)

 

                   Hallett J.A. came to the opposite conclusion from the majority on every issue.  He determined first that the Charter  does not apply to permit the courts to review the exercise of the recognized privileges of the House.  He first made clear that, prior to the Charter , while the courts exercised jurisdiction to determine "if the action of the members in a particular instance was within the ambit of the recognized privileges of the House",  they had no authority to review "the exercise of that privilege where it concerns the `internal proceedings' of the House" (p. 47) (emphasis in original).  He reasoned that the Charter  did not change this state of affairs as s. 32  encompasses only "the product of the law-making process" (p. 50).  He acknowledged that this makes more than legislation reviewable.  For example, s. 32  renders Cabinet decisions reviewable, but he distinguished the review of these kinds of decisions from the review of "how the legislative bodies function while in session" (p. 50) and thereby, how they exercise their privileges.  He concluded that if the Charter  was intended to subject privileges to its scrutiny, the Constitution Act, 1982  would have expressly so provided.

 

                   Hallett J.A. went on to determine that even if he was wrong in the above conclusions, a ban on filming in the House does not constitute an infringement of s. 2 (b).  He argued that the media has no right to access over and above the access that is accorded to the general public and that the guarantee of freedom of expression is not so wide as to permit the media access to wherever they choose.  He stated that the 2(b) guarantee is not absolute, that the members of the House are in exclusive possession of the legislative chamber and that they therefore have a right to determine who enters and how they conduct themselves while they are there.

 

                   Finally, Hallett J.A. stated that even if one were to conclude that there had been an infringement of s. 2 (b), it would be saved under s. 1  as "there is a pressing and substantial need to maintain decorum in the House so that the business of the province can be conducted in an orderly manner" (p. 56).

 

IV.  Issues

 

                   The following constitutional questions were stated by Gonthier J. on July 3, 1991:

 

1.  Does the Canadian Charter of Rights and Freedoms  apply to the members of the House of Assembly when exercising their privileges as members?

 

2.  If the answer to question 1 is yes, does exercising a privilege so as to refuse access to the media to the public gallery to record and relay to the public proceedings of the House of Assembly by means of their cameras contravene s. 2 (b) of the Canadian Charter of Rights and Freedoms ?

 

3.  If the answer to question 2 is yes, is such a refusal a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society, pursuant to s. 1  of the Canadian Charter of Rights and Freedoms ?

 

V.  Analysis

 

A.Does the Charter  Apply to Members of the House of Assembly when Exercising Their Privileges as Members?

 

                   (1) The Doctrine of Privilege

 

                   (a) Privilege Generally

 

                   In Parliamentary Privilege in Canada (1982), at p. 12, Joseph Maingot provides the following general definition of the doctrine of privilege:

 

                   Parliamentary privilege is the necessary immunity that the law provides for members of Parliament, and for members of the legislatures of each of the ten provinces and two territories, in order for these legislators to do their legislative work.  It is also the necessary immunity that the law provides for anyone while taking part in a proceeding in Parliament or in a legislature.  Finally, it is the authority and power of each House of Parliament and of each legislature to enforce that immunity.

 

                   This definition raises a number of issues which bear further discussion.  First, who holds this privilege?  Second, against whom do they hold it?  And third, on what basis, or for what purpose do they hold it?

 

                   As stated by Maingot, it is the Houses of Parliament and the provincial legislative assemblies, and their members, that hold and exercise parliamentary privileges.  It is important here to distinguish the Houses of Parliament and the legislative assemblies from the broader legislatures of which they are a part.  In the case of a province, for example, the legislature is made up of the legislative assembly and the Crown's representative in the person of the Lieutenant Governor.  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.

 

                   This takes us to the answer to the second question posed above.  The members of the Houses of Parliament and the legislative assemblies hold parliamentary privileges as against the Crown and the Judiciary.  This state of affairs arose from a history of conflict between Parliament, the Crown and the Judiciary in the United Kingdom.  In 1908, Josef Redlich quoted the following definition of privilege at p. 46 of The Procedure of the House of Commons, vol. I:

 

. . . the sum of the fundamental rights of the House and of its individual members as against the prerogatives of the Crown, the authority of the ordinary Courts of Law, and the special rights of the House of Lords.

 

                   In the last century, privilege has most often been exercised in the form of immunity against judicial review.  In Bradlaugh v. Gossett (1884), 12 Q.B.D. 271, at p. 275, Lord Coleridge C.J. made the following statement with respect to such immunity:

 

What is said or done within the walls of Parliament cannot be inquired into in a court of law.  On this point all the judges in the two great cases which exhaust the learning on the subject, -- Burdet v. Abbott [(1811), 14 East 1, 104 E.R. 501] and Stockdale v. Hansard [(1839), 9 Ad. & E. 1, 112 E.R. 1112]; -- are agreed, and are emphatic.  The jurisdiction of the Houses over their own members, their right to impose discipline within their walls, is absolute and exclusive.  To use the words of Lord Ellenborough, "They would sink into utter contempt and inefficiency without it" [14 East 1, 104 E.R. 501, at p. 559 E.R.].

 

Of course, this immunity is not absolute.  The place of judicial review will be discussed later in these reasons.

 

                   Parliamentary privilege, and immunity with respect to the exercise of that privilege, are founded upon necessity.  Parliamentary privilege and the breadth of individual privileges encompassed by that term are accorded to members of the Houses of Parliament and the legislative assemblies because they are judged necessary to the discharge of their legislative function.  In Stockdale v. Hansard (1839), 9 Ad. & E. 1 (K.B.), 112 E.R. 1112, at p. 1199 E.R., Coleridge J., as he then was, made the following statement to this effect:

 

. . . that the House should have exclusive jurisdiction to regulate the course of its own proceedings, and animadvert upon any conduct there in violation of its rules, or derogation from its dignity, stands upon the clearest grounds of necessity.

 

                   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 due 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 of 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 necessary.

 

                   Over time, by virtue of custom and usage, particular categories of privilege came to be recognized in the United Kingdom.  These include, for example, free speech so that nothing said inside the Assembly may be brought into question elsewhere, immunity from arrest while the Assembly is sitting, the power to exclude strangers from its proceedings, the power to control the publication of its debates, and the power to punish for contempt.  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.  For this reason, it is important to review the different origins of privilege in the United Kingdom and in the colonial legislatures.

 

                   (b) The Origins of Privilege

 

(i) United Kingdom

 

                   As stated above, in the United Kingdom privilege evolved from a history of conflict between the Houses of Parliament, the Crown and the courts.  In essence, it was a struggle for independence as between the different branches of government.  In earlier times, particularly prior to 1640, the Crown and the courts showed no hesitation to intrude into the sphere of the Houses of Parliament.  Nor did the Houses of Parliament hesitate to intrude into the sphere of the courts.  For example, in 1629, Charles I had Sir John Eliot and two other members charged and imprisoned for sedition for words spoken in debate in the House.  For their part, the Houses often used their penal jurisdiction to imprison sheriffs, magistrates and even judges of the superior court -- as in 1689 when two judges of King's Bench were imprisoned for their decision in Jay v. Topham (14 East 102, 104 E.R. 540).

 

                   Initially, the Houses simply claimed privilege on their own behalf.  They did not request its recognition by the Crown in statute, or by the courts in common law.  Thus parliamentary privileges were in a sense outside the law, or a law unto themselves.  It was referred to as part of the lex parliamentis or the law of parliament, not as part of statute or common law.  When a member was arrested in violation of privilege, the House would not turn to Crown or courts for his release.  It would not make an application for habeas corpus before the courts and argue it on the basis of a doctrine of privilege; it would simply send the Sergeant-at-Arms with the ceremonial mace to the prison to demand the member's release on its own authority.

 

                   Over time, with some acquiescence on all sides, the exercise of privilege became less confrontational.  With the acquiescence of the Crown, much of the law relating to privilege was codified in statute.  For example, the ninth article of the English Bill of Rights of 1689 provided that "the freedom of Speech and Debates or Proceedings in Parliament ought not to be impeached or questioned in any Court or Place out of Parliament."  The courts conceded some jurisdiction to the Houses through the common law.  In turn, the Houses conceded some jurisdiction to the courts, appearing before them pleading privilege and trusting them to dismiss an inappropriate claim on that basis.  Finally, in 1704, the Commons undertook not to claim any privilege in the future not already established by custom and usage.  For a more detailed account of this historical evolution, see Erskine May's Treatise on The Law, Privileges, Proceedings and Usage of Parliament (21st ed. 1989), at pp. 69-83.

 

                   Thus privilege in the United Kingdom currently finds its source in the lex parliamentis, the common law and statute law.  However, given its historical development, it is fair to say that its source is constitutional in the most fundamental sense in that it has everything to do with the relationships between the different branches of government.  The same cannot be said of parliamentary privilege as it developed in the colonial legislatures in Canada and elsewhere.

 

                   (ii) The Colonial Legislatures

 

                   In the colonial legislatures in Canada and elsewhere, parliamentary privileges were derived from common law or statute law.  In common law, such legislatures were held to have certain inherent powers simply by virtue of their creation.  It was not accepted, however, that those powers were as extensive as those of the Houses of Parliament in the United Kingdom simply because they were bodies with analogous functions.  This point is well illustrated by the following passages, made by the Privy Council in reference to the Newfoundland legislative assembly in the case of Kielley v. Carson (1842), 4 Moore 63, 13 E.R. 225, at pp. 234-35 E.R.:

 

                   Their Lordships see no reason to think, that in the principle of the Common Law, any other powers are given them, than such as are necessary to the existence of such a body, and the proper exercise of the functions which it is intended to execute.  These powers are granted by the very act of its establishment, an act which on both sides, it is admitted, it was competent for the Crown to perform.  This is the principle which governs all legal incidents.  "Quando Lex aliquid concedit, concedere viditur et illud, sine quo res ipsa esse non potest."  In conformity to this principle we feel no doubt that such an Assembly has the right of protecting itself from all impediments to the due course of its proceeding.  To the full extent of every measure which it may be really necessary to adopt, to secure the free exercise of their Legislative functions, they are justified in acting by the principle of the Common Law.

 

                                                                   . . .

 

                   It is said, however, that this power belongs to the House of Commons in England; and this, it is contended, affords an authority for holding that it belongs as a legal incident, by the Common Law, to an Assembly with analogous functions.  But the reason why the House of Commons has this power, is not because it is a representative body with legislative functions, but by virtue of ancient usage and prescription; the lex et consuetudo Parliamenti, which forms a part of the Common Law of the land, and according to which the High Court of Parliament, before its division, and the Houses of Lords and Commons since, are invested with many peculiar privileges, that of punishing for contempt being one.

 

                   Thus, it was held that the inherent powers of the colonial legislatures were not as broad as those of the Houses of Parliament of the United Kingdom for two reasons.  First, the relatively shorter histories of such bodies had not given rise to a similar claim by way of custom and usage.  Second, the same powers were not perceived to be justified by necessity.  Henry J. alluded to both reasons in Landers v. Woodworth (1878), 2 S.C.R. 158, at pp. 210-12:

 

It cannot be claimed, that what the House of Commons, after centuries of political contests, with the voice of the nation to back it, found it necessary to assume in the peculiar relations existing, in the shape of judicial functions, which the nation ratified as necessary to curb and control judges more immediately under the control of despotic sovereigns, should be at all necessary or proper in regard to Provincial Legislatures.  Involved in the latest and most learned decisions of the judges in England may be fairly assumed is the proposition, that the House of Commons depends solely on the law and custom of Parliament for its right to adjudicate for a contempt, and that as a new privilege, it could not now be assumed.  In the one case, the life of the Constitution of the country was often endangered, and might have been wholly lost, but for the assumption of this power by the House of Commons of England; in the other, no such consequences could arise.  The Constitutions of the Provincial Legislatures were never subject to such perils.

 

                                                                   . . .

 

                   I cannot discover how any Provincial Assembly could obtain any right to exercise judicial functions, unless by legislation; for there are no laws or customs peculiar to each which would give the right by which an alleged contempt could be tried.  Without receiving by legislation the same power as is exercised by the House of Commons, and without law or custom of Parliament of their own to warrant such a trial, how did they get it?  I have tried in vain for any source from which it could have come.

 

                   Much of the jurisprudence to this effect, including the two cases quoted from above, centred on the issue of whether the colonial legislatures held the power to punish for contempt, beyond simply ejecting a person whose behaviour was disruptive to the House.  In that context, a further historical factor was highly relevant.  The penal jurisdiction of the Houses of Parliament in the United Kingdom was in large part derived from the fact that at one time they had been part of the "High Court of Parliament", the judicial function of which had been as important as its legislative function.  The division between legislatures and courts has been much clearer in Canada throughout its constitutional history.

 

                   Henry J. notes, in the above quotation, that powers beyond the inherent privileges of provincial legislatures can be granted to them by statute.  This has been the case in Canada with respect to the House of Commons, the Senate and most of the provincial legislative assemblies.  For example, the House of Commons was granted the power to legislate for themselves the same privileges as those held by the Houses of Parliament in the United Kingdom in s. 18 of the British North America Act, 1867 (now the Constitution Act, 1867 ).  Most of the provincial legislatures have granted themselves the same privileges through their power to amend their own constitutions (see Fielding v. Thomas, [1896] A.C. 600 (P.C.)).  However, the difference in breadth between the inherent privileges of these bodies and those granted by statute must be kept in mind as it may well have an impact on their constitutional status.

 

                   (c) Judicial Review of Privilege

 

                   As stated in the 21st edition of Erskine May's Treatise, supra, at p. 145:  "After some three and a half centuries, the boundary between the competence of the law courts and the jurisdiction of either House in matters of privilege is still not entirely determined."  By undertaking a brief historical review, however, the general compromise which continues to hold sway can be illustrated.

 

                   Originally, the Houses of Parliament took the position that they were the exclusive judges of their own privileges.  This encompassed the existence and extent of privileges as well as their exercise.  Thus, they claimed to be absolute arbiters of their own privileges and, further, that their judgments with respect to those privileges were not reviewable  by any other court.  The courts, on the other hand, considered lex parliamentis to be part of the law of the land and, as such, within their judicial notice.  Particularly when the issue at hand involved the rights of third parties, the courts considered it their role to interpret the law of Parliament and to apply it.

 

                   Over time, these opposing views were reconciled to a degree.  In Erskine May's Treatise, at p. 150, it is reported that:

 

In the nineteenth century, a series of cases forced upon the Commons and the courts a comprehensive review of the issues which divided them, from which it became clear that some of the earlier claims to jurisdiction made in the name of privilege by the House of Commons were untenable in a court of law: that the law of Parliament was part of the general law, that its principles were not beyond the judicial knowledge of the judges, and that it was the duty of the common law to define its limits could no longer be disputed.  At the same time, it was established that there was a sphere in which the jurisdiction of the House of Commons was absolute and exclusive.

 

                   A major turning point in this respect was the case of Stockdale v. Hansard, supra.  There, Lord Denman C.J. found first that the House's contention that its orders could not be questioned was untenable.  To find otherwise would be to hold that the House of Commons is supreme when only Parliament is supreme.  Thus when a case involving privilege is brought before them, the courts must look at the grievance of the plaintiff to determine if it involves a right for which there is a remedy and if the defendant has a good defence in law.  A declaration of law must be inquired into to determine if it is indeed a matter of privilege.  Otherwise, the House could bring any matter within its jurisdiction simply by declaring it to be so.  If, upon examination, the subject matter does fall within the jurisdiction of the House, then the courts cannot question its judgment.  If, however, a claim of privilege is not valid, then the courts can decline to enforce it.  In that particular case, Lord Denman C.J. embarked on that inquiry and determined that the House's claim that it had the privilege of publishing defamatory material with immunity was not proven.

 

                   That position was readily adopted by Canadian courts.  In Landers v. Woodworth, supra, at p. 196, the then Chief Justice of the Supreme Court, Richards C.J., made the following statement:

 

Even in England, the courts will see whether what the House of Commons declares to be its privileges really are so, the mere affirmance by that body that a certain act is a breach of their privileges will not oust the courts from enquiring and deciding whether the privilege claimed really exists.

 

                   The general rule which has developed from the above and subsequent case law is that courts will inquire into the existence and extent of privilege, but not its exercise.  This rule does not always provide a clear guide, however, as the existence, extent and exercise of privilege tend to overlap.  This difficulty can readily be illustrated with the example of freedom of speech.  Courts have, on occasion, inquired into the extent of the privilege of free speech by determining whether various things said outside the Assembly are so closely connected to the work of the Assembly that they too should be immune from review.  But is this truly a question of the extent of the privilege of free speech, or is it a question of its exercise?

 

                   Another general proposition which can be derived from the case law is that courts are apt to look more closely at cases in which claims to privilege have an impact on persons outside the Assembly than at those which involve matters entirely internal to the Assembly.  The lines are not altogether clear here either though.  For example, in the case before us the issue clearly revolves around the internal proceedings of the Assembly.  At the same time, it is persons not connected to the Assembly who allege their rights are infringed.  Does this qualify as an "inside case" or as an "outside case"?

 

                   (2) Application of the Doctrine of Privilege in the Present Case

 

                   There are essentially four arguments put forward by the appellant and the interveners in support of the appellant as to why the Charter  ought not to apply to the exercise of parliamentary privileges:

 

1.  By virtue of s. 88  of the Constitution Act, 1867 , and its inclusion in the schedule of the Constitution Act, 1982 , the Constitution of Nova Scotia is part of the federal constitution;

 

2.  By virtue of the inclusion of art. 9 of the English Bill of Rights of 1689 in the preamble of the Constitution Act, 1867 , and its inclusion in the schedule of the Constitution Act, 1982 , the principle that the exercise of parliamentary privileges is not to be reviewed by the courts is enshrined in the Constitution;

 

3.  Parliamentary privileges have an inherent constitutional status derived from the very nature of the institution and from the preamble to the Constitution Act, 1867 ; or,

 

4.  The exercise of parliamentary privileges is not covered by s. 32  of the Charter , either because:

 

a) the House of Assembly does not fall within the words "legislature" or "government"; or,

 

b) the exercise of parliamentary privileges does not fall within the phrase "within the authority of the legislature".

 

I will deal with each of these arguments in turn below.

 

                   The first argument has two steps.  First, it is alleged that the privileges exercised by the Nova Scotia House of Assembly and its members are a part of the provincial constitution.  Second, it is alleged that the provincial constitution has been made part of the Constitution of Canada by virtue of s. 88  of the Constitution Act, 1867 .  The first step is clearly made out.  In Fielding v. Thomas, supra, at pp. 610-11, the following statement was made:

 

                   It surely cannot be contended that the independence of the provincial legislatures from outside interference, its protection, and the protection of its members from insult while in the discharge of their duties, are not matters which may be classed as part of the constitution of the province, or that legislation on such matters would not be aptly and properly described as part of the constitutional law of the province.

 

                   The second step, however, is more problematic.  The question of whether a provincial constitution is part of the Constitution of Canada is not free of difficulty.  The term "Constitution of Canada" is defined in s. 52(2)  of the Constitution Act, 1982 .  Professor Hogg has opined that, while the definition is exhaustive, s. 88  of the Constitution Act, 1867  arguably incorporates by reference the pre-confederation constitutions of Nova Scotia and New Brunswick into the Constitution of Canada:  see Peter W. Hogg, Constitutional Law of Canada (3rd ed. 1992), vol. 1, at pp. 1-6 and 4-24.

 

                   However, there is reason to doubt Professor Hogg's conclusion that the provincial constitution of Nova Scotia is part of the Constitution of Canada within the meaning of s. 52(2) .  Professor Hogg has noted the curious result that is obtained in relation to the amending provisions of the Constitution if the provincial constitutions are found to be part of the Constitution of Canada:  see Hogg, supra, at p. 4-24.  This consideration, among others, led McEachern C.J.S.C. (as he then was) to find that the Constitution Act of British Columbia is not part of the Constitution of Canada:  Dixon v. British Columbia (Attorney General) (1986), 7 B.C.L.R. (2d) 174.   With respect to s. 88 , its language speaks of continuing the constitution of the legislature of the province of Nova Scotia.  However, the continuance of a provincial constitution as contemplated by s. 88  is something quite different from giving it status as part of the Constitution of Canada.  Glube C.J.T.D. has held that the Constitution of Nova Scotia is not part of the Constitution of Canada within the meaning of s. 52(2)  of the Constitution Act, 1982 MacLean v. Attorney-General of Nova Scotia (1987), 35 D.L.R. (4th) 306 (N.S.S.C.T.D.), at p. 312.

 

                   All of this goes to point out the difficulty of deciding whether the constitution of the province of Nova Scotia is part of the Constitution of Canada.  Given the importance of that question and my conclusion concerning s. 32  of the Charter , below, I do not need to finally determine this aspect of the case.

 

                   The second argument posed by the appellant and interveners in support of the appellant is as follows.  They argue that the preamble of the Constitution Act, 1867  in referring to "a Constitution similar in Principle to that of the United Kingdom" incorporates art. 9 of the English Bill of Rights of 1689, and thereby incorporates the privileges of legislative bodies.  I do not think that the wording of the preamble of the Constitution Act, 1867  can be taken to refer to so specific an article of the Constitution of the United Kingdom.  While the Constitution of Canada is undoubtedly founded upon many of the same broad principles as is the Constitution of the United Kingdom, the two are far from identical.  Article 9  cannot be directly transplanted without specific reference.  The historical review undertaken in the preceding section makes clear that the different paths of evolution of government in the two jurisdictions led to significant differences in the branches of government themselves from the very beginning.  And there is no question that in recent years we have diverged further still with the patriation of Canada's Constitution in 1982.  Similar in principle does not mean identical in the powers it grants.

 

                   The third argument posed is similar to the second but takes a more tenable form.  The appellant and interveners in support of the appellant argue that parliamentary privileges have an inherent constitutional status which is derived from the very nature of legislative bodies and from the preamble of the Constitution Act, 1867 .  It is clear that the privileges inherent in legislative bodies are fundamental to our system of government.  While we do not share the turbulent history of the United Kingdom with respect to the relationships between the different branches of government, there is no question that the maintenance of the independence of the different branches from one another is necessary to their proper functioning.

 

                   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 Beauregard v. Canada, [1986] 2 S.C.R. 56, at p. 72, Dickson C.J. said the following:

 

The preamble to the Constitution Act, 1867  states that Canada is to have a Constitution "similar in Principle to that of the United Kingdom".  Since judicial independence has been for centuries an important principle of the Constitution of the United Kingdom, it is fair to infer that it was transferred to Canada by the constitutional language of the preamble.

 

There is a clear parallel between the doctrines of independence of the judiciary and of parliamentary privilege as the latter is the means by which the Houses of Parliament protect their independence.  In Canada, it is through the exercise of 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.  To incorporate by way of the preamble the broad principle of the fostering of the independence of the legislative process through the exercise of parliamentary privileges is much more palatable than incorporating a specific article of the Bill of Rights of 1689.

 

                   I am not sure, however, that this argument can be taken so far as to grant parliamentary privileges a constitutional status which is on the same footing as the Charter .  The Charter  is a part of an evolution of our Constitution which culminated in the supremacy of a definitive written constitution.  Given this, I would be reluctant to import unexpressed concepts into the Constitution in a way that would evade scrutiny under the express guarantees of the Charter .  If, as some of the interveners contend, s. 18  of the Constitution Act, 1867  entrenched the parliamentary privileges of the House of Commons, my conclusion on this point might be different.  However, as I read s. 18 , it does not entrench the parliamentary privileges of the House of Commons; rather, it entrenches the power of Parliament to legislate those privileges for itself in the same way that s. 45  of the Constitution Act, 1982  entrenches the power of the provincial legislatures to legislate their own privileges by way of amendments to their constitutions.

 

                   I concur with McLachlin J.'s assessment of the long tradition and great importance of these privileges.  I agree with her that "[t]raditionally, each branch of government has enjoyed autonomy in how it conducts its affairs" (p. 000).  I further agree that this case raises the question of whether "the Charter  not only removed from the legislative bodies the right to pass whatever laws they might choose to adopt, but that it removed the long-standing constitutional right of Parliament and the legislative assemblies to exclude strangers, subjecting the determination by the Speaker of what is disruptive of the operation of the Assembly to the superior review of the courts" (p. 000).  However, given the conclusions I arrive at below, regarding s. 32  of the Charter , I do not find it necessary to determine whether the above analysis could grant the privileges of provincial Houses of Assembly constitutional status which would make them immune to Charter  review.

 

                   I turn, then, to the fourth argument raised by the appellant, that the exercise of parliamentary privileges is not covered by s. 32 .  This argument is two-fold:  first, that the House of Assembly is neither legislature nor government; and, second, that the exercise of parliamentary privileges ought not to fall within the phrase "matters within the authority of the legislature".   The first part of this argument is very strong on the actual text of s. 32 .  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.

 

                   It is argued by the respondent that to interpret s. 32  in this way is overly technical and, as such, is contrary to the purposive spirit in which such interpretation ought to be undertaken.   This argument must be carefully considered in the context of this Court's previous pronouncements on the application of the Charter  pursuant to s. 32 .  In RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, it was determined that application of the Charter  is confined to government action.  There McIntyre J. stated:  "It is my view 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" (p. 598).  He held this limitation on the application of the Charter  to be in accord with the broad purpose of the Charter  in that (at p. 593):

 

. . . the Charter , like most written constitutions, was set up to regulate the relationship between the individual and the Government.  It was intended to restrain government action and to protect the individual.

 

                   The focus of discussion then became just what the term "government" in s. 32  encompasses.  McIntyre J. went on to say at p. 598:

 

. . . where the word "government" is used in s. 32  it refers not to government in its generic sense -- meaning the whole of the governmental apparatus of the state -- but to a branch of government.  The word "government", following as it does the words "Parliament" and "Legislature", must then, it would seem, refer to the executive or administrative branch of government.

 

                   Subsequently, in McKinney v. University of Guelph, [1990] 3 S.C.R. 229, and Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483, this Court was called upon to determine whether a university and a hospital, in the factual contexts of those cases, fell within s. 32  as comprising a part of government.  In both cases, the decisions of the majority were based on the fact that, in the words of La Forest J. in McKinney, at p. 261:  "[T]he Charter  is essentially an instrument for checking the powers of government over the individual".

 

                   In arriving at conclusions on the scope of the term "government" in the above decisions, this Court was assisted by an extensive array of academic opinion on the issue.  See, for example, K. Swinton, "Application of the Canadian Charter of Rights and Freedoms ", in W. S. Tarnopolsky and G.-A. Beaudoin, eds., The Canadian Charter of Rights and Freedoms : Commentary (1982), 41; A. A. McLelland and B. P. Elman, "To Whom Does the Charter  Apply? Some Recent Cases on Section 32 " (1986), 24 Alta. L. Rev. 361; D. Gibson, "Distinguishing the Governors from the Governed:  The Meaning of "Government" under Section 32(1)  of the Charter " (1983), 13 Man. L. J. 505; and R. Tassé, "À qui incombe l'obligation de respecter les droits et libertés garantis par la Charte canadienne des droits et libertés ?", in G.-A. Beaudoin, ed., Your Clients and the Charter --Liberty and Equality(1987), 35.  The same attention has not been devoted to the scope of the term "legislature".  Its scope has been regarded as largely self-evident.

 

                   However, in determining whether the term "legislature" encompasses the legislatures' component parts individually as well as the legislature properly constituted, we must engage in a purposive analysis.  This analysis places the specific section or sections to be interpreted in their "proper linguistic, philosophic and historical contexts":  see R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 344, per Dickson J. (as he then was).  These contexts, in my opinion, are of special importance when one is engaged, as here, in the interpretation of s. 32  which describes not a specific guaranteed right or freedom, but rather the settings in which the guarantees of these rights and freedoms operate.

 

                   The constitutional traditions which have been reviewed clearly have an impact on whether s. 32  is interpreted to encompass the exercise of privilege by members of legislative assemblies.  In Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, at p. 394, McIntyre J. stated:

 

                   It follows that while a liberal and not overly legalistic approach should be taken to constitutional interpretation, the Charter  should not be regarded as an empty vessel to be filled with whatever meaning we might wish from time to time.  The interpretation of the Charter , as of all constitutional documents, is constrained by the language, structure, and history of the constitutional text, by constitutional tradition, and by the history, traditions, and underlying philosophies of our society.

 

                   How might the legislature exert its power over individuals in a way which potentially calls for Charter  review?  In Dolphin Delivery, supra, at p. 599, McIntyre J. expressed the opinion that:  "[L]egislation is the only way in which a legislature may infringe a guaranteed right or freedom".  This statement was repeated and approved by La Forest J. in McKinney, at p. 263.  If this is the case, it would seem that the broad purpose of the Charter  does not require a broader interpretation of the term "legislature" than that outlined above, that is, the legislature properly constituted and not its component parts acting individually.

 

                   The respondent alleges, however, that the House of Assembly may infringe a guaranteed right or freedom through the exercise by its members of their parliamentary privileges.  Thus, it contends that the legislative process as well as the legislative product ought to be subject to Charter  review.  Here, though, we return squarely to the above quoted passage from Reference re Public Service Employee Relations Act (Alta.).  The Charter  cannot be interpreted in isolation from the history and traditions of our Constitution and our society.  As elaborated in detail earlier in this judgment, the courts have long maintained a "hands off" approach to the exercise of parliamentary privilege, particularly when it is directed toward maintaining control of the internal proceedings of the House.  This approach fosters the independence of the legislative and judicial branches of our government from one another.  As Iacobucci C.J. (as he then was) pointed out in a different context, ". . . the review of parliamentary proceedings is not a matter to be taken lightly given the history of curial deference to Parliament and respect for the legislative branch of government generally":  Southam Inc. v. Canada (Attorney General), [1990] 3 F.C. 465 (C.A.), at p. 478.

 

                   In my opinion, 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 s. 2  of the Charter  to the exercise by the members of House of their inherent privileges.

 

                   The language and structure of the text strongly, although by no means, unambiguously, support this view.  Section 32 refers to the "legislature", which strictly speaking, means the body capable of enacting legislation, i.e., the House of Assembly and the Lieutenant Governor.   Moreover, s. 32 specifically refers to "all matters within the authority of the legislature".  This is the language of legislation and is a clear reference to legislative authority under, for example, s. 92  of the Constitution Act, 1867 .  It will be remembered that s. 92  begins with the words, "[i]n each Province the Legislature may exclusively make Laws . . .".  This tends to reinforce the view that "legislature" in s. 32  should, in general, refer to the body which enacts legislation, i.e., the House with the Lieutenant Governor.

 

                   This interpretation is strengthened by s. 33  of the Charter Section 33(1)  gives the power to the legislature of a province to "expressly declare in an Act of the . . . legislature" that an Act shall operate notwithstanding a provision included in s. 2 or ss. 7 to 15 of this Charter .  Similarly, s. 33(4) links the word "legislature" and the word "re-enact", once again emphasizing that the term "legislature" is referring to the body exercising legislative authority.

 

                   The overall structure of the constitutional text is also supportive of my conclusion with respect to s. 32.  The distinction between the legislature and its component parts is observed with reasonable consistency in the Constitution Act, 1867 .  As pointed out by McLachlin J., s. 17  refers to "Parliament" consisting of the "Queen", the "Senate" and the "House of Commons".  Where privileges are referred to in s. 18 , the terms employed are the "Senate" and the "House of Commons".  There are, of course, numerous provisions applicable only to the Senate or the House of Commons (see, e.g., ss. 21  to 36  respecting the Senate, and ss. 37  through 52 concerning the House of Commons). Section 69  refers to the "Legislature for Ontario consisting of the Lieutenant Governor, and of One House, styled the Legislative Assembly of Ontario".  These usages and definitions support my conclusion that the term "legislature" in s. 32  does not, in general, include the House of Assembly itself because the constitutional text generally differentiates between the federal or provincial legislatures and their component parts.

 

                   It is also worth noting the language employed in the amending provisions set out in Part V of Schedule B of the Constitution Act, 1982 .  This is particularly relevant given that these provisions were enacted at the same time as the Charter .  If one examines Part V, dealing with the procedure for amending the Constitution of Canada, one sees references throughout to "resolutions of the Senate and House of Commons" and "resolutions of the legislative assemblies" (see, e.g., s. 38(1) ), thereby distinguishing between resolutions of the House and enactments of the legislature.

 

                   To sum up the argument thus far, there are strong literal and textual reasons to conclude that the term "legislature" used in s. 32  of the Charter  refers in general only to the body exercising legislative power, in this case the House of Assembly with the Lieutenant Governor, and not to its constituent parts individually.

 

                   There are at least three sections of the Charter  that, at first blush, cast some doubt on this interpretation.  McLachlin J. refers to s. 5  of the Charter , which provides that "[t]here shall be a sitting of Parliament and of each legislature at least once every twelve months".  She points out that the legislature is called to sit by the Speaker giving notice to the members, that the action is purely internal to the legislative body, and that the Queen's representative has no role to play.  Thus, she concludes the word "legislature" refers to actions which are exclusively those of the House alone and to which this section of the Charter  must apply.

 

                   The same may be said of ss. 17  and 18  of the Charter Section 17 , referring to the right to use English or French in debate, uses the word Parliament and s. 17(2) , referring to the same right in the legislative assembly of New Brunswick, uses the term "legislature of New Brunswick".  Section 18  uses the same language to refer to the "statutes, records and journals" of Parliament and the legislature of New Brunswick.  Section 17  uses the term "legislature" to refer to the Assembly, while s. 18  uses the word "legislature" to refer to both the legislature proper (i.e., the body that enacts statutes) and the Assembly (i.e., the body that keeps a "journal").

 

                   While 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.  It must be observed that there is no single meaning of the term "legislature" which can be applied to both s. 33 on the one hand, and ss. 5 , 17  and 18  on the other.  Indeed, there is no single interpretation of the word "legislature" that can be used with complete precision within s. 18 itself.  In s. 33, "legislature" clearly means the body capable of enacting legislation, whereas in ss. 5  and 17 , the context makes it clear that it is the House itself that is intended.  Section 18 refers to the "statutes, records and journals" of the legislature.  But, strictly speaking, the "legislature" enacts "statutes" whereas the "Assembly" keeps a "journal".  This lack of perfectly consistent usage is not surprising given the nature of these documents and particularly their attempt to set out in relatively few words concepts which are historically charged with meaning.  It also underlines the point that, in interpreting these provisions, very careful attention must be paid to the contextual and purposive considerations outlined earlier in these reasons.

 

                   In this regard, there are particular historical and structural considerations that must be borne in mind with respect to ss. 5 , 17  and 18  of the Charter .  These sections are extensions of provisions originally found in the British North America Act, 1867.  In the case of s. 5 , it is modeled on the now repealed s. 20 of the British North America Act, 1867.  That section referred to there being a session of the Parliament of Canada, and of course, the use of the term Parliament of Canada was convenient given the requirement to include both the Senate and the House of Commons.  The use of the words "session" and "sitting" in that section also made the intention to refer only to the House and the Senate quite clear even though the word used, i.e., "Parliament" was not strictly correct.

 

                   With respect to ss. 17  and 18 , they are modeled on the original s. 133, which rather interestingly, provided: "Either the English or the French Language may be used by any Person in the Debates of the Houses of the Parliament of Canada and of the Houses of the Legislature of Quebec", and further that "[t]he Acts of the Parliament of Canada and of the Legislature of Quebec shall be printed and published in both Languages".  The original section clearly distinguished between "proceedings before the House" and "enactments of the legislature", but this clarity was lost in the updated versions.

 

                   Sections 5 , 17  and 18  are found in areas of the Charter  which are excluded from the override provisions of s. 33  of the Charter .  This suggests that they are in a different category than the rights contained in ss. 2  and 7  through 15, and may explain, if not entirely excuse, the inconsistency in the use of language between these sections and other places in the Charter  and the Constitution Act generally.

 

                   To summarize, 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.  There are certain provisions in the Charter , notably ss. 5 , 17  and 18 , in relation to which the specific context requires a different meaning.  However, this case concerns whether the rights guaranteed by s. 2  of the Charter  apply to the House of Assembly and I conclude that s. 32 , properly interpreted, makes it clear that they do not.

 

                   This conclusion is strongly reinforced by resort to constitutional tradition and the history and traditions of our society.  The place and importance of legislative privileges in our political life and the long-standing practice of judicial non-interference have been reviewed at length earlier in these reasons.  These considerations, to my mind, resolve any residual ambiguity concerning the interpretation of s. 32 as it relates to the application to the House of the rights guaranteed under s. 2  of the Charter .

 

                   The respondent contend that, regardless of whether the legislative process is subject to Charter  review, privileges are clearly "matters within the authority of the legislatures of each province".  There is no doubt that this is true in the sense that the provincial legislatures have the power to legislate in relation to privileges.  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. 

 

                   In this case the respondent did not argue that the privilege used to prohibit the independent use of video cameras in the House was in excess of inherent privilege.  Given the long-standing acceptance of the power to exclude strangers and to control the internal proceedings of the House as valid categories of privilege founded on necessity, in this country as well as in the United Kingdom (see, for example, Payson v. Hubert (1904), 34 S.C.R. 400), that argument would be difficult to make.

 

                   I conclude that the exercise of their inherent privileges by members of the Nova Scotia House of Assembly is not subject to Charter  review under s. 2  as the House of Assembly does not fit within the terms of s. 32  as it must be interpreted in this context.  It should be noted here that this does not mean that the members of legislative assemblies can exercise parliamentary privileges with absolute immunity.  First, the courts can still review the validity of claims of privilege to the same degree they have always done.  That is, they can pronounce upon the existence or extent of a particular privilege.  Second, even if the members are not accountable to the judiciary with respect to the exercise of parliamentary privileges, they are, obviously, still accountable to the electorate.

 

                   Since writing the above, I have had the advantage of reading the reasons of my brother, Cory J., reaching the opposite conclusion with respect to the application of the Charter .  Cory J. posits the example of the House punishing for contempt by sentencing a member to life imprisonment without eligibility for parole.  This, my brother Cory J. suggests, is a case which would surely be covered by the Charter .

 

                   With respect, this example does not advance the matter very far.  The position which I have advanced in these reasons holds that the members of the Nova Scotia House of Assembly, in exercising their inherent privileges (which are not dependent on statute for their existence), are not subject to Charter  review.  As I have pointed out earlier, the existence and extent of these privileges are subject to judicial review quite apart from the Charter .  The first response to Cory J.'s example is, therefore, that it is predicated on the questionable proposition that punishment by life imprisonment is within the inherent privileges of the members of the House.  That proposition is, of course, subject to judicial scrutiny under the approach I have adopted.  Secondly, 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  scrutiny.

 

                   The present case is one in which the actions of the members of the House fall within their inherent privileges.  The contrary was not argued.  I do not wish to decide a case not before us, especially one as different as that posited in Cory J.'s example.  Suffice it to say that his example would give rise to very different considerations that those present in the case before us and that there is nothing in these reasons that would inevitably place the conduct described in Cory J.'s example beyond the reach of judicial review.

 

                   Finally, I note that even if the Charter  did apply to the exercise of their inherent privileges by members of the Nova Scotia House of Assembly, it could well be that the House would itself constitute the "court of competent jurisdiction" for purposes of hearing such a claim and granting a remedy under s. 24(1)  of the Charter .  I do not intend to pursue this line of analysis here, however, in light of my above conclusions, as well as the fact that the parties did not argue this issue before us.

 

B. The Freedom of Speech Issue

 

                   Given that I have determined that the exercise of privilege by members of the House of Assembly is not subject to Charter  review, it would be inappropriate for me to address the second and third issues which pertain to the freedom of speech of journalists in the House.

 

VI. The Constitutional Questions

 

                   I would answer the constitutional questions, modified in light of these reasons, as follows:

 

1.  Does  s. 2 of the Canadian Charter of Rights and Freedoms  apply to the members of the House of Assembly when exercising their privileges as members?

 

The answer to the first constitutional question is no.  Section 32, as it relates to the application of s. 2  of the Charter , does not encompass the Members of the Nova Scotia House of Assembly when exercising their inherent privileges.

 

2.  If the answer to question 1 is yes, does exercising a privilege so as to refuse access to the media to the public gallery to record and relay to the public proceedings of the House of Assembly by means of their cameras contravene s. 2 (b) of the Canadian Charter of Rights and Freedoms ?

 

Given my response to the first constitutional question, it is neither necessary nor appropriate to answer the second constitutional question.

 

3.  If the answer to question 2 is yes, is such a refusal a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society, pursuant to s. 1  of the Canadian Charter of Rights and Freedoms ?

 

Given my response to the first and second constitutional questions, it is neither necessary nor appropriate to answer the third constitutional question.

 

VII.  Disposition

 

                   The appeal is allowed.  The order of the learned trial judge, as amended by the Court of Appeal for Nova Scotia, is set aside.

 

//La Forest J.//

 

                   The following are the reasons delivered by

 

                   La Forest J. -- I am in general agreement with the reasons of my colleague, McLachlin J., subject to the following comments, which are ultimately perhaps more matters of perspective than substance.

 

                   As I see it, when the British government granted a legislative assembly to a colony, the grant carried with it as an adjunct the power necessary for that body to carry out its functions, in particular the power to regulate its internal processes in the traditional manner developed over the years.  This is really what we are talking about when we speak of parliamentary or legislative privileges in this country.  The broader parliamentary privileges of the British Parliament were not carried over to this country but colonial legislatures necessarily had to have such privileges as were necessary to their functioning.  The legislative assembly, with its concomitant privileges, was part of the colony's constitution, which in the case of the pre‑existing provinces like Nova Scotia was continued by the Constitution Act, 1867 .  Parliamentary legislative privileges in Nova Scotia are, therefore, ultimately anchored in the grant of a legislative assembly and incorporated into the Constitution Act, 1867 .  The new legislative bodies created by that Act and subsequent constitutional instruments over the years are governed by the same principle.  The preambular statement in the Constitution Act, 1867  that what was desired was "a Constitution similar in Principle to that of the United Kingdom", among other things, gives expression to the nature of the legislative bodies that were continued or established by it.  The privileges of these bodies are similar in principle, though not identical, to those of the Parliament of the United Kingdom.

 

                   I would dispose of the appeal and answer the constitutional questions in the manner proposed by McLachlin J.

 

//McLachlin J.//

 

                   The judgment of L'Heureux-Dubé, Gonthier, McLachlin and Iacobucci JJ. was delivered by

 

                   McLachlin J. -- I have had the advantage of reading the reasons of both the Chief Justice and of Cory J.  Although I agree with the Chief Justice that the Canadian Charter of Rights and Freedoms  does not apply to the action of the Nova Scotia House of Assembly which is put in issue on this appeal, I come to this conclusion for different reasons.  In my view, 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 .

 

                   The main issue before this Court is whether the Charter  applies to prevent the Nova Scotia House of Assembly from excluding the media from its chambers.  The media were excluded on the ground that by filming the proceedings of the House of Assembly with their own cameras they would disrupt the decorum and the efficacy of these proceedings.  The relevant facts, and the judgments in the courts below are set out in the reasons of the Chief Justice.

 

                   The appellant and those interveners supporting the appellant advance two general arguments in support of their position that the Charter  does not apply to prevent exclusion on this ground.  They argue first that, by virtue of s. 32(1)  of the Charter , the Charter  applies only to the actions of the "legislature" or the "government".  The Nova Scotia House of Assembly is, it is said, neither; accordingly, this body is not governed by the Charter .  Alternatively they argue that even if the Nova Scotia House of Assembly can be subject to the Charter  by virtue of s. 32(1) , the right of a legislative body to control attendance in its chamber to the extent of being able to expel strangers is a right that enjoys constitutional status.  Such a right, it is said, cannot be abrogated by another part of the Constitution, in this case the Charter .  I have indicated my agreement with the second of these arguments.  Before explaining the reason for my agreement, let me first address the argument in respect of s. 32(1) .

 

A.  Does the Charter  Apply to a Legislative Assembly?

 

                   The Chief Justice holds 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.  With the greatest respect, I disagree with each of these findings.

 

                   The textual argument is, in my view, inconclusive.  The relevant part of s. 32 states:

 

32. (1)  This 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; and

 

(b)  to the legislature and government of each province in  respect of all matters within the authority of the legislature of each province.

 

The question is whether s. 32(1) , which makes the Charter  applicable to the "Parliament" and government of Canada and the "legislature" and government of each province, means that the Charter  does not apply to a legislative assembly, which, it is argued, is but one constituent part of the "legislature".  On the one hand, the terms "Parliament" and "legislature" as defined in the Constitution Act, 1867  (ss. 17 , 69 , and 71 ), and in various provincial Interpretation Acts, include both the legislative body and the Queen's representative.  These definitions tend to support the Chief Justice's conclusion that the text of the Charter  does not include the legislative assembly itself.  On the other hand, s. 5  of the Charter  can apply only to the legislative bodies.  This section states:  "There shall be a sitting of Parliament and of each legislature at least once every twelve months".  The legislature is called to sit by the Speaker giving notice to the members; the action is purely internal to the legislative body.  Thus this section uses the word "legislature" to refer to actions which are exclusively those of a legislative body such as the Nova Scotia House of Assembly.  Section 5  therefore supports the view that, by the terms of the Charter  itself, the word "legislature" cannot be narrowly defined to cover only those actions for which the legislative body and the Queen's representative are jointly responsible.  Sections 17  and 18  of the Charter  provide further support for this view.

 

                   Nor does a purposive interpretation of s. 32(1)  lead to the conclusion that the Charter  does not apply to a legislative assembly, in my view.  It is argued that the history of curial deference to legislative bodies means that the Charter  can never apply to them.  The argument, with respect, is cast too broadly.  The tradition of curial deference does not extend to everything a legislative assembly might do, but is firmly attached to certain specific activities of legislative assemblies, i.e., the so‑called privileges of such bodies.  It follows that the tradition of curial deference to legislative bodies does not support a blanket rule that the Charter  cannot apply to any of the actions of a legislative assembly.

 

                    Without deciding that the legislative assembly is a government actor for all purposes, suffice it to say that as a public body it might be capable of impinging on individual freedoms in areas not protected by privilege.  The legislative assembly could, therefore, fall within the rationale for regarding such bodies as government actors subject to the Charter developed by La Forest J. in McKinney v. University of Guelph, [1990] 3 S.C.R. 229 (at p. 262):

 

Government is the body that can enact and enforce rules and authoritatively impinge on individual freedom.  Only government requires to be constitutionally shackled to preserve the rights of the individual.  Others, it is true, may offend against the rights of individuals.  This is especially true in a world in which economic life is largely left to the private sector where powerful private institutions are not directly affected by democratic forces.  But government can either regulate these or create distinct bodies for the protection of human rights and the advancement of human dignity.

 

In neither RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, where McIntyre J. stated that "legislation is the only way in which a legislature may infringe a guaranteed right or freedom" (p. 599), nor in McKinney, where La Forest J. repeated this dictum, was any consideration given to the issue raised on this appeal.  McIntyre J. never expressly considered whether the term "legislature", for the purposes of s. 32(1) , could or should be restricted to its technical meaning of the House of Assembly and the Lieutenant Governor.  Nor do I think it reasonable, in light of the decisions of this Court in Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, and Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211, to say that only by legislation can a "government actor" infringe rights.  In Operation Dismantle, this Court held unanimously that a Cabinet decision to allow the United States to test cruise missiles in Canada was reviewable by the courts under s. 32(1) (a), and that the executive branch of government had a general duty to act in accordance with the Charter .  In Lavigne, an obligation inserted into a collective agreement at the behest of a non‑governmental actor constituted government action, once it was found that a "government actor" exercised routine or regular control over those who sought to enforce the obligation.

 

                   I cannot, however, follow my colleague Cory J. in concluding that "the Charter  should apply to the actions of the legislative assembly" (p. 000), if he means by this that the Charter  should apply to all of the actions of the legislative assembly.  Absent specific Charter  language to the contrary, the long history of curial deference to the independence of the legislative body, and to the rights necessary to the functioning of that body, cannot be lightly set aside, even conceding that our notions of what is permitted to government actors have been significantly altered by the enactment and entrenchment of the Charter .  The legal reason why curial deference to the action of the House of Assembly here in issue should be preserved is set out below.

 

                   In the result, I would reject the argument that the power of the Nova Scotia House of Assembly at issue on this appeal cannot be impugned because the Charter  can never apply to any of the actions of a legislative assembly.

 

B.Does the Nova Scotia House of Assembly Here Act Pursuant to a Constitutional Right?

 

                   The second and alternative argument advanced in support of the contention that the Charter  does not apply to the Assembly's action is the argument that the right of a legislative body to control who attends in its chamber is a right that enjoys constitutional status, and hence cannot be abrogated by another part of the Constitution, in this case the Charter .

 

                   It is a basic rule, not disputed in this case, that one part of the Constitution cannot be abrogated or diminished by another part of the Constitution: Reference re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148.  So if the privilege to expel strangers from the legislative assembly is constitutional, it cannot be abrogated by the Charter , even if the Charter  otherwise applies to the body making the ruling.  This raises the critical question:  is the privilege of the legislative assembly to exclude strangers from its chamber a constitutional power?

 

                   It is argued that the right to exclude strangers from the legislative assembly is constitutional by virtue of s. 88  of the Constitution Act, 1867 , which is said to make the provincial constitution of Nova Scotia part of the Constitution of Canada.  It is also argued that the right is constitutional because the preamble of the Constitution Act, 1867 , incorporates art. 9 of the English Bill of Rights of 1689.  Finally, it is argued that the right to exclude strangers is a constitutional privilege inherent in the legislative assembly by virtue of the fact that the preamble to the Constitution Act, 1867  proclaims an intention to put in place "a Constitution similar in Principle to that of the United Kingdom".

 

                   I have concluded that the first two arguments do not establish the constitutionality of the privilege claimed.  The first argument is beside the point.  The appellant here seeks to establish the constitutional status of the inherent privileges of the Nova Scotia House of Assembly.  Only presuming that this Court finds that the privileges of the Nova Scotia House of Assembly are statutory, does the appellant argue that privilege is incorporated into the Constitution of Canada by virtue of s. 88  of the Constitution Act, 1867 , and s. 52  of the Constitution Act, 1982 .  I argue below that inherent privileges can enjoy constitutional status regardless of whether there exists a power to legislate in respect of privilege in the provincial constitution, and regardless of whether provisions relating to privilege have in fact been enacted.  Were it necessary to consider the matter, I would also be concerned about a reading of the word "continue" in s. 88  of the Constitution Act, 1867  as "be entrenched"; since this section concerns only the provincial constitutions of Nova Scotia and New Brunswick, such a reading would raise questions regarding the other provincial constitutions.

 

                   In respect of the second argument, it is clear that, absent specific reference, the wording of the preamble should not be understood to refer to a specific article of the English Bill of Rights.  This is not to say that that principles underlying art. 9 of the English Bill of Rights of 1689 do not form part of our law and inform our understanding of the appropriate relationship between the courts and legislative bodies in Canada:  Reference re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753, at p. 785.

 

                   I am persuaded by the third argument.  In my view, it is reasonable and correct to find that the House of Assembly of Nova Scotia has the constitutional power to exclude strangers from its chamber on the basis of the preamble to the Constitution, historical tradition, and the pragmatic principle that the legislatures must be presumed to possess such constitutional powers as are necessary for their proper functioning.

 

The Effect of our Written Constitution

 

                   It is argued that the fact that our Constitution is in large part a written constitution, coupled with the particular wording of some of its provisions, indicates that unwritten and unexpressed privileges can have at most a limited place in the Constitution.  It is to that argument that I now turn.  It is my view that far from contradicting the proposition that Parliament and the legislatures possess inherent constitutional privileges, the wording of our written constitution supports that proposition.

 

                   This is evident from the first part of our written constitution, the preamble to the Constitution Act, 1867 , which announces the intention of securing to the provinces of Canada, Nova Scotia and New Brunswick, a "Constitution similar in Principle to that of the United Kingdom".  There is no question that this preamble constitutionally guarantees the continuance of Parliamentary governance; given Canadian federalism, this guarantee extends to the provincial legislatures in the same manner as to the federal Parliament.  The Constitution of the United Kingdom recognized certain privileges in the legislative body.  This suggests that the legislative bodies of the new Dominion would possess similar, although not necessarily identical, powers.  This inference finds further support in the fact that the Canadian Parliament and provincial legislatures were modelled, down to the smallest details, on the Parliament of the United Kingdom.  For example, every legislative body possesses a speaker who is empowered to maintain order and decorum in the proceedings of the House, just as the Speaker at Westminster does.  The obvious conclusion is that he or she would be armed with similar powers, at least to the extent that such powers are necessary for the efficient operation of the legislative body.

 

                   It is argued, however, that we in Canada have pursued the enterprise of constitution‑writing to the point where unwritten concepts can no longer be said to have a place in our Constitution.  I say immediately that I share the concern of the Chief Justice that unwritten concepts not be freely imported into a constitutional regime which has culminated in a written constitution.  I note as well that there is eminent academic support for taking a cautious approach to the recognition of unwritten or unexpressed constitutional powers.  Yet the matter is not susceptible to categoric exclusions, as is evident from Professor Hogg's discussion of the issue.  In Constitutional Law of Canada (3rd ed. 1992), vol. 1, at p. 1‑7, Professor Hogg begins by stating the case for the conclusion that the Canadian Constitution is confined to the written documents:

 

                   The definition of the "Constitution of Canada" in s. 52(2)  is introduced by the words "includes".  In general, in Canadian statutes, the word "includes" indicates that the definition is not exhaustive.  The word "means" is customary for an exhaustive definition.  But, considering the specificity of the list of Acts and orders, and the grave consequences (namely, supremacy and entrenchment, described in the next two paragraphs) of the inclusion of other instruments, surely no court would be so bold as to make additions to the 30 instruments in the schedule.

 

But in the next sentence, Professor Hogg acknowledges the difficulty with this approach, asserting that while

 

[i]t seems only realistic . . .  to regard the definition as exhaustive, . . . it omits many instruments of importance to the government of Canada or the provinces.  For example, the definition omits the pre‑1867 instruments which governed the territory now forming part of Ontario and Quebec:  the Royal Proclamation of 1763, the Quebec Act of 1774, the Constitutional Act of 1791 and the Union Act of 1840.  Also excluded are the pre‑1867 instruments which are still the constitutions of Nova Scotia (1749), Prince Edward Island (1769), New Brunswick (1784), Newfoundland (1832) and British Columbia (1866).  Nor does the definition include the Letters Patent of 1947, which constitute the office of Governor General, of the Supreme Court Act , which establishes the Supreme Court of Canada, or the Canadian Bill of Rights, which remains in force notwithstanding the adoption of the Charter of Rights .  Nor does the definition include the body of conventions which regulates the system of responsible government; of course, these conventions cannot be included in a definition expressed in terms of written instruments, because they are not contained in any authoritative written instrument.

 

Professor Hogg concludes that "Canada's gradual evolution from colony to nation has denied it any single comprehensive constitutional document" (p. 1‑8).  He concedes that the wording of s. 52(2)  does not conclusively prove that this section is an exhaustive definition of the Canadian Constitution.  I would add only this:  given the clear and stated intention of the founders of our country in the Constitution Act, 1867  to establish a constitution similar to that of the United Kingdom, the Constitution may also include such privileges as have been historically recognized as necessary to the proper functioning of our legislative bodies.

 

                   It seems indisputable that the inherent privileges of Canada's legislative bodies, those "certain very moderate privileges which were necessary for the maintenance of order and discipline during the performance of their duties" (see R. M. Dawson, The Government of Canada (5th ed. 1970), at p. 338), fall within the group of principles constitutionalized by virtue of this preamble.  The principles constitutionalized in this manner were seen to be unwritten and unexpressed; I do not understand the entrenchment of written rights guarantees, or the adoption of specific written instruments, to negate the manifest intention expressed in the preamble of our Constitution that Canada retain the fundamental constitutional tenets upon which British parliamentary democracy rested.  This is not a case of importing an unexpressed concept into our constitutional regime, but of recognizing a legal power fundamental to the constitutional regime which Canada has adopted in its Constitution Acts, 1867 to 1982.  Nor are we here treating a mere convention to which the courts have not given legal effect; the authorities indicate that the legal status of inherent privileges has never been in doubt.

 

                   I accept the spirit of the remarks of Hogg that additions to the 30 instruments set out in the Schedule to s. 52(2)  of the Constitution Act, 1982  might have grave consequences given the supremacy and entrenchment that is provided for the "Constitution of Canada" in ss. 52(1)  and 52(3) .  However, as Hogg himself concedes, s. 52(2)  is not clearly meant to be exhaustive.  That established, I would be unwilling to restrict the interpretation of that section in such a way as to preclude giving effect to the intention behind the preamble to the Constitution Act, 1867 , thereby denying recognition to the minimal, but long recognized and essential, inherent privileges of Canadian legislative bodies.

 

                   I conclude that the written text of Canada's Constitution supports, rather than detracts from, the conclusion that our legislative bodies possess those historically recognized inherent constitutional powers as are necessary to their proper functioning.

 

The Historical Perspective

 

                   The Parliament of Canada and the legislative assemblies of its provinces are modelled on the system of Parliamentary democracy that prevailed in the United Kingdom.  The preamble to the Constitution Act, 1867   expressly states the intention of the framers of our Constitution that it should be "similar in Principle to that of the United Kingdom".  It follows that in ascertaining what constitutional powers our legislative assemblies have we should begin by looking at the powers which historically have been ascribed to the Parliament of the United Kingdom.

 

                   I turn first to the historical tradition of parliamentary privileges.  "Privilege" in this context denotes the legal exemption from some duty, burden, attendance or liability to which others are subject.  It has long been accepted that in order to perform their functions, legislative bodies require certain privileges relating to the conduct of their business.  It has also long been accepted that these privileges must be held absolutely and constitutionally if they are to be effective; the legislative branch of our government must enjoy a certain autonomy which even the Crown and the courts cannot touch.

 

                   The Parliamentary privilege of the British Parliament at Westminster sprang originally from the authority of Parliament as a court.  Over the centuries, Parliament won for itself the right to control its own affairs, independent of the Crown and of the courts.  The courts could determine whether a parliamentary privilege existed, but once they determined that it did, the courts had no power to regulate the exercise of that power.  One of those privileges, held absolutely and deemed to be constitutional, was the power to exclude strangers from the proceedings of the House.

 

                   The privileges attaching to colonial legislatures arose from common law.  Modelled on the British Parliament, they were deemed to possess such powers and authority as are necessarily incidental to their proper functioning.  These privileges were governed by the principle of necessity rather than by historical incident, and thus may not exactly replicate the powers and privileges found in the United Kingdom.

 

                   In Erskine May's Treatise on The Law, Privileges, Proceedings and Usage of Parliament (21st ed. 1989), privilege is described in the following manner (at pp. 69 and 82):

 

                   Parliamentary privilege is the sum of the peculiar rights enjoyed by each House collectively as a constituent part of the High Court of Parliament, and by Members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals.  Thus privilege, though part of the law of the land, is to a certain extent an exemption from the general law.

 

                                                                   . . .

 

. . . the privileges of Parliament are rights `absolutely necessary for the due execution of its powers'. . . .

 

The basic character of privilege in Canada is well set out in Professor Dawson's Government of Canada, supra, at pp. 337‑38:

 

Privileges formed in themselves a special body of law and became known collectively as the lex et consuetudo Parliamenti.  It had no statutory basis whatever; indeed, it sprang originally from the authority of Parliament as a court; and not as a legislative body . . . .

 

                                                                   . . .

 

                   The lex et consuetudo Parliamenti as known in England, unlike the major part of the common law, has not been transplanted to Canada.  The creation of legislative bodies overseas did not endow those bodies with privileges and powers of the English Parliament, which, as stated above, were primarily judicial in origin.  Such creation did imply, however, that these legislatures would need to exercise certain very moderate privileges which were necessary for the maintenance of order and discipline during the performance of their duties.  But these were to be protective and not punitive powers, for the latter were again considered to be characteristic of a court rather than of a legislative body.

 

The most recent treatment of these issues in the Canadian setting echoes this thinking.  Thus Joseph Maingot in his Parliamentary Privilege in Canada (1982) also recognizes that Canadian legislative bodies had, from their inception, those privileges which were necessary for the maintenance of order and discipline during the performance of their duties (at pp. 2‑3):

 

                   From the time that a legislative assembly was first established in Canada in 1758 in Nova Scotia, the law accorded to it and to those taking part in its deliberations all the power considered necessary for a legislature and its members to perform their legislative work.  In this way, the members had freedom of speech in debate; they were protected from being arrested in connection with civil cases because the legislature had first call on their services and attendance.  It was said in an early opinion that they had the power to imprison for such acts of contempt in the face of the assembly as produced disturbance and interruption of their proceedings.  While such custom and practice developed in Upper and Lower Canada and continued in the Province of Canada, it was held in 1842 that colonial legislatures had no power to commit for contempt committed outside the assembly, and in 1866 it was held that they had no power to commit for contempt even when committed in the assembly.  In other words, "protective and self‑defensive powers only, and not punitive powers, are necessary."

 

                   The early legislatures had to rely on their inherent power because they were the assemblies of colonies:  the legal instrument creating them, a royal proclamation or an act of the U.K. Parliament, would not normally provide for the same immunity or power as the U.K. House of Commons because that would not be compatible with their dependent status.  It was not until 1896 that the legislatures of the provinces received judicial confirmation of the authority to take on much the same privileges as the U.K. or Canadian House of Commons.  That same court (Fielding v. Thomas, [[1896] A.C. 600 (N.S.)]) pointed out that from 1865, the early elected legislatures in Canada (such as that of Nova Scotia) had by virtue of section 5 of the Colonial Laws Validity Act, 1865 the authority to legislate their privileges.

 

                   The forgoing remarks indicate that Canadian legislative bodies properly claim as inherent privileges those rights which are necessary to their capacity to function as legislative bodies.  There is no dispute in the case law that necessity is the test.  Thus, in Kielley v. Carson (1842), 4 Moore 63, 13 E.R. 225, the Privy Council was called upon to consider whether the power of committing for a contempt, outside of the Assembly, was a necessary legal incident to every local Canadian legislature.  The Privy Council found that our legislative bodies could not claim such a privilege, and held further that colonial assemblies did not possess the rights and privileges that the House of Commons of the United Kingdom enjoyed by virtue of ancient usage and prescription.  But the Privy Council did not dispute that such powers "as are necessary to the existence of such a body, and the proper exercise of the functions which it is intended to execute" were bestowed with the very establishment of the Newfoundland Assembly.  Baron Parke stated (at pp. 234‑35 E.R.):

 

In conformity to this principle we feel no doubt that such an Assembly has the right of protecting itself from all impediments to the due course of its proceeding.  To the full extent of every measure which it may be really necessary to adopt, to secure the free exercise of their Legislative functions, they are justified in acting by the principle of the Common Law.

 

See also Fielding v. Thomas, [1896] A.C. 600 (P.C.), per Lord Halsbury L.C., at pp. 610‑11.  The general point was confirmed in an early decision of this Court in Landers v. Woodworth (1878), 2 S.C.R. 158, where Ritchie J. commented (at pp. 201‑2):

 

                   I think a series of authorities, binding on this Court, clearly establish that the House of Assembly of Nova Scotia has no power to punish for any offence not an immediate obstruction to the due course of its proceedings and the proper exercise of its functions, such power not being an essential attribute, nor essentially necessary, for the exercise of its functions by a local legislature, and not belonging to it as a necessary or legal incident; and that, without prescription or statute, local legislatures have not the privileges which belong to the House of Commons of Great Britain by the Lex et consuetudo Parliamenti.

 

                   It is for the courts to determine whether necessity sufficient to support a privilege is made out.  Lord Denman C.J. in Stockdale v. Hansard (1839), 9 Ad. & E. 1 (Q.B.), 112 E.R. 1112, stated at p. 1169 E.R.:  "If the necessity can be made out, no more need be said:  it is the foundation of every privilege of Parliament, and justifies all that it requires."  He noted, however, that it is up to the courts to determine whether necessity supports the privilege claimed; if it does, and only if it does, the courts will not inquire into its exercise (at p. 1168 E.R.):

 

Where the subject matter falls within [the House of Commons] jurisdiction, no doubt we cannot question their judgment; but we are now enquiring whether the subject matter does fall within the jurisdiction of the House of Commons.  It is contended that they can bring it within their jurisdiction by declaring it so.  To this claim, as arising from their privileges, I have already stated my answer:  it is perfectly clear that none of these Courts could give themselves jurisdiction by adjudging that they enjoy it.

 

                   The test of necessity is not applied as a standard for judging the content of a claimed privilege, but for the purpose of determining the necessary sphere of exclusive or absolute "parliamentary" or "legislative" jurisdiction.  If a matter falls within this necessary sphere of matters without which the dignity and efficiency of the House cannot be upheld, courts will not inquire into questions concerning such privilege.  All such questions will instead fall to the exclusive jurisdiction of the legislative body.

 

                   Thus the test of necessity for privilege is a jurisdictional test.  Very early on, when it was determined by the common law courts that the lex et consuetudo Parliamenti was not a separate law which was simply unknown to the courts, the courts were compelled to confront the following basic problem in respect of privilege.  It was quite clear that a legislative body could not extend its privilege merely by declaring it extended by resolution; to permit the legislative body to so act would be to permit it to legislate without the necessary participation of King and Lords.  If the legislative body was permitted to declare the law of privilege, it was possible that either through mistake or through abuse, wrongful incursion would be made into the common law.  On the other hand, if the courts were to declare the validity of privilege, the common law might make improper incursion into the law of privilege.  The solution to this dilemma was the adoption of the principle of necessity as a means of distinguishing areas of judicial and legislative body jurisdiction.

 

                   As noted above, Stockdale v. Hansard is the leading case.  The court there rejected the argument that the courts will take cognizance of questions involving privilege only where the question was "incidentally" rather than "directly" before them.  It was held that the courts were bound to decide an issue of privilege, however it arose, but that this decision must be subject to the recognition of an exclusive parliamentary jurisdiction.  The parameters of this jurisdiction are set by what is necessary to the legislative body's capacity to function.  So defined, the principle of necessity will encompass not only certain claimed privileges, but also the power to determine, adjudicate upon and apply those privileges.  Were the courts to examine the content of particular exercises of valid privilege, and hold some of these exercises invalid, they would trump the exclusive jurisdiction of the legislative body, after having admitted that the privilege in issue falls within the exclusive jurisdiction of the legislative body.  The only area for court review is at the initial jurisdictional level:  is the privilege claimed one of those privileges necessary to the capacity of the legislature to function?  A particular exercise of a necessary privilege cannot then be reviewed, unless the deference and the conclusion reached at the initial stage be rendered nugatory.

 

                   In summary, it seems clear that, from an historical perspective, Canadian legislative bodies possess such inherent privileges as may be necessary to their proper functioning.  These privileges are part of the fundamental law of our land, and hence are constitutional.  The courts may determine if the privilege claimed is necessary to the capacity of the legislature to function, but have no power to review the rightness or wrongness of a particular decision made pursuant to the privilege.

 

 

The Pragmatic Argument:  Necessity

 

                   I earlier alluded to scholarly and judicial opinion supporting the conclusion that Canadian legislative bodies possess such historically recognized constitutional privileges as may be necessary to their efficient functioning.  Implicit in this conclusion is the assertion that, from a practical point of view, legislative bodies must possess certain inherent powers in order to properly discharge their functions.

 

                   As a general proposition, can unwritten constitutional privileges inherent to our legislative bodies be justified on the ground of necessity?  Putting the matter differently, can our legislative bodies function properly, clothed only with those powers expressly conferred by our written constitutional documents?  The answer to this question must, in my view, be negative.  The importance of the unwritten constitutional right, for example, to speak freely in the House without fear of civil reprisal, is clear.

 

                   Among the specific privileges which arose in the United Kingdom are the following:

 

(a)  freedom of speech, including immunity from civil proceedings with respect to any matter arising from the carrying out of the duties of a member of the House;

(b)  exclusive control over the House's own proceedings;

(c)  ejection of strangers from the House and its precincts; and

(d)  control of publication of debates and proceedings in the House.

 

                   Erskine May, supra, provides convincing justifications for each of these privileges:  see pp. 84, 90‑91, 171‑73, and 85‑86 respectively.  The need for the right of freedom of speech is so obvious as to require no comment.  Nevertheless, it is worth underlining the element of free speech which touches on the privilege here asserted.  Free speech in the House includes the right to undisturbed speech.  If activities in the gallery disturb debate, whether because of noise, lights, or for whatever other reason, the House has traditionally possessed the right to remove the disturbance, even if this entails excluding the person or persons responsible.

 

                   The right of the House to be the sole judge of the lawfulness of its proceedings, is similarly evident;  Erskine May states that this right is "fully established".  In settling or departing from its own codes of procedure "the House can `practically change or practically supersede the law'" (p. 90).

 

                   As for the right to exclude strangers from the galleries, Erskine May cites ancient usage that any member could require the exclusion of any person from the gallery at any time, without debate or reason.  This power has now been referred to the Speaker, who alone has the power, whenever he or she sees fit, to order the withdrawal of strangers from any part of the House.

 

                   Finally, on the right to control publication of debates and proceedings, Erskine May states (at p. 85):

 

                   Closely connected with [the] power [to exclude strangers] is the right of either House to prohibit the publication of debates or proceedings.  The publication of the debates of either House has in the past repeatedly been declared to be a breach of privilege, and especially false and perverted reports of them . . . .

 

                   Of the privileges described above, the one most directly put in issue on this appeal is the right of the House to exclude strangers.  In Canada, this Court has ruled that legislative assemblies are not open to the public as of right:  see Payson v. Hubert (1904), 34 S.C.R. 400.  In that case it was recognized that access to the chamber of the Nova Scotia House of Assembly was strictly a matter of privilege which could be withdrawn at any time as a matter of decorum.

 

                   On this appeal, the Chief Justice, based on his review of the authorities and the character of privilege, accepts that Canadian legislative bodies have, as an inherent privilege, the right to exclude strangers.  He states at p. 000:  "Given the long-standing acceptance of the power to exclude strangers and to control the internal proceedings of the House as valid categories of privilege founded on necessity, in this country as well as in the United Kingdom . . .; [the contrary] argument would be difficult to make."  I agree.

 

                   The fact that this privilege has been upheld for many centuries, abroad and in Canada, is some evidence that it is generally regarded as essential to the proper functioning of a legislature patterned on the British model.  However, it behooves us to ask anew:  in the Canadian context of 1992, is the right to exclude strangers necessary to the functioning of our legislative bodies?

 

                   In my view, this privilege is as necessary to modern Canadian democracy as it has been to democracies here and elsewhere in past centuries. The legislative chamber is at the core of the system of representative government. It is of the highest importance that the debate in that chamber not be disturbed or inhibited in any way.  Strangers can, in a variety of ways, interfere with the proper discharge of that business.  It follows that the Assembly must have the right, if it is to function effectively, to exclude strangers.  The rule that the legislative assembly should have the exclusive right to control the conditions in which that debate takes place is thus of great importance, not only for the autonomy of the legislative body, but to ensure its effective functioning.

 

                   But, it is argued, it is not necessary that the right be absolute.  The courts should be given the power to monitor the exercise of this power to ensure that only those strangers who are truly disruptive are excluded.  In my view, a system of court review, quite apart from the constitutional question of what right the courts have to interfere in the internal process of another branch of government, would bring its own problems.  The ruling of the Assembly would not be final.  The Assembly would find itself caught up in legal proceedings and appeals about what is disruptive and not disruptive.  This in itself might impair the proper functioning of the chamber.  This lends support to the venerable and accepted proposition that it is necessary to the proper functioning of a legislative assembly modeled on the Parliamentary system of the United Kingdom that the Assembly possess the absolute right to exclude strangers from its proceedings, when it deems them to be disruptive of its efficacious operation.

 

                   What then of the right of the public to attend the debates of the legislative body?  It is not necessary on this appeal to consider the case of an attempt to exclude all members of the public, or certain groups of the public, and conduct the business of the House in private, although it may be noted that the English tradition would support the right of the House to debate in private.  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 attendance in the House.  There is no more cause for a court to review that decision than there would be for the 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.

 

                   It may be added that the historical record suggests that the danger of abuse of the Speaker's power to control proceedings in the House, even to the point of excluding strangers, is not grave.  The right to exclude strangers has been recognized in the United Kingdom for centuries and in this country for well over one hundred years without adverse effect.  And the legislative assembly always faces the ultimate sanction, that of the voters.

 

                   I add this.  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.

 

                   Traditionally, each branch of government has enjoyed autonomy in how it conducts its affairs.  The Charter  has changed the balance of power between the legislative branch and the executive on the one hand, and the courts on the other hand, by requiring that all laws and government action must conform to the fundamental principles laid down in the Charter .  As a practical matter, this means that, subject to the override provision in s. 33  of the Charter , the courts may be called upon to rule that laws and government acts are invalid.  To this extent, the Charter  has impinged on the supreme authority of the legislative branches.  What we are asked to do in this case is to go further, much further.  We are asked to say that the Charter  not only removed from the legislative bodies the right to pass whatever laws they might choose to adopt, but that it removed the long‑standing constitutional right of Parliament and the legislative assemblies to exclude strangers, subjecting the determination by the Speaker of what is disruptive of the operation of the Assembly to the superior review of the courts.  I see nothing in the Charter  that would mandate or justify taking the reallocation of powers which it effected to this extreme.

 

                   I conclude that the legislative assembly of Nova Scotia possesses an inherent constitutional right to exclude strangers from its chamber, where it concludes their presence is disruptive of the Assembly's business.

 

Effect of Conclusion that Privilege Exists

 

                   Having concluded that the Assembly had the constitutional right to do what it did, it follows that the Charter  cannot cut down that right, on the principle that one part of the Constitution cannot abrogate another part of the Constitution.

 

                   It is necessary, however, to consider the argument, accepted by my colleague Cory J., that we are here concerned with the exercise of a constitutional power and that the exercise of constitutional powers is subject to the Charter  on the reasoning found in Reference re Provincial Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158.  With respect, this argument begs the critical question of whether the right claimed is a constitutional power, as asserted by the appellant, or whether it is merely an act in the exercise of a constitutional power.  To adopt the language of the Electoral Boundaries Reference, the important question is whether we are here treating the fruit of the legislative tree, or the tree itself.  If the latter, the argument that the privilege claimed is constitutional cannot be dismissed by reliance on the reasons given in the Electoral Boundaries Reference.  The test is whether to accede to the Charter  argument would amount to negating or removing a constitutional power.  If so, the Charter  does not apply.

 

                   The distinction between using the Charter  to negate another constitutional provision and using the Charter  to ensure that the exercise of a constitutional provision conforms with the Charter  is illustrated by comparing two cases:  Reference re Bill 30, An Act to amend the Education Act (Ont.), supra, and the Electoral Boundaries Reference.

 

                   In the Education Reference this Court ruled that the Charter  could not be used to strike down legislation relating to Catholic schools notwithstanding the allegation that it was discriminatory, because to do so would be to impinge on a constitutional power.  The question was whether the Ontario government's plan to extend funding to Roman Catholic separate schools infringed provisions of the Charter .  It was held that the province had power under s. 93  of the Constitution Act, 1867  to legislate in a selective and distinguishing manner in respect of education, whether or not the result of such legislation might be thought discriminatory.  Agreeing with the finding of the majority that the Charter  cannot be applied so as to abrogate or derogate from rights or privileges guaranteed by the Constitution, Estey J. put the relevant point in the following clear language (at pp. 1206‑7):

 

                   The role of the Charter  is not envisaged in our jurisprudence as providing for the automatic repeal of any provisions of the Constitution of Canada which includes all of the documents enumerated in s. 52  of the Constitution Act, 1982 .  Action taken under the Constitution Act, 1867  is of course subject to Charter  review.  That is a far different thing from saying that a specific power to legislate as existing prior to April 1982 has been entirely removed by the simple advent of the Charter .  It is one thing to supervise and on a proper occasion curtail the exercise of a power to legislate; it is quite another thing to say that an entire power to legislate has been removed from the Constitution by the introduction of this judicial power of supervision.  The power to establish or add to a system of Roman Catholic separate schools found in s. 93(3)  expressly contemplates that the province may legislate with respect to a religiously‑based school system funded from the public treasury.  Although the Charter  is intended to constrain the exercise of legislative power conferred under the Constitution Act, 1867  where the delineated rights of individual members of the community are adversely affected, it cannot be interpreted as rendering unconstitutional distinctions that are expressly permitted by the Constitution Act, 1867 .

 

To put it another way, the province's  constitutional power to provide for separate education gave it the constitutional right to discriminate between groups.  To deny that power on the ground that it infringed the Charter  would be to diminish or abrogate the very power which the Constitution conferred on the province.  This the Charter  cannot do.

 

                   This may be contrasted with the situation in the Electoral Boundaries Reference.  The case proceeded on the basis that a constitutional convention authorized the provinces to set their electoral boundaries.  That power was not at issue.  What was at issue was whether, pursuant to that power, the province could pass legislation which violated the right to vote guaranteed by s. 3  of the Charter .  The answer to that question was negative.  I had occasion to say (at p. 179) that "[a]lthough legislative jurisdiction to amend the provincial constitution cannot be removed from the province without a constitutional amendment and is in this sense above Charter  scrutiny, the provincial exercise of its legislative authority is subject to the Charter . . . ."  In other words, what was in issue was not the power to legislate, but the "fruit" of that power, a law setting out certain electoral boundaries.  The legislation in question was subject to the Charter  because striking down the law would not accomplish the constitutionally impermissible act of removing from the province the very power to create these boundaries.

 

                   In this case, the issue is not the fruit of the constitutional tree (the exercise of a power), but the tree itself (the existence of the power).  The trial judge put the matter clearly:

 

[The court] is not asked to adjudicate whether the House was right or wrong in refusing the plaintiffs access to the galleries of the House in order to televise proceedings.  Rather, it is asked to declare whether the plaintiffs have such a right of access.  In other words, it is asked to ascertain and declare whether a particular privilege exists or does not exist in law.

 

                   ((1990), 71 D.L.R. (4th) 23, at p. 47.)

 

                   It follows that this appeal is governed by the Education Reference rather than the Electoral Boundaries Reference.  The issue is not the way in which the Speaker has chosen to exercise a conceded constitutional power.  Indeed, it is accepted that where power is conferred on a legislative body by inherent privilege, the courts cannot, by the nature of that privilege itself, enquire into the manner in which it is exercised.  The issue is ‑‑ indeed the issue can only be ‑‑ whether the Assembly has a constitutional power to exclude strangers from its deliberations.  If this Court were to rule that the Assembly could not do this, this Court would be taking away a constitutional power possessed by the Assembly.  At issue, in other words, is the constitutional "tree" itself, rather than the fruit of the tree.  It is therefore no answer to a claim for constitutional privilege to say that it constitutes the mere exercise of a constitutional power.

 

                   I conclude that the legislative assembly having acted within its constitutional powers, the Charter  does not apply to its conduct.

 

                   I should add that since writing these reasons I have had the opportunity of reading the reasons of La Forest J. and agree with his comments.

 

C.  Disposition

 

                   I would answer the stated constitutional questions as follows:

 

1.Does the Canadian Charter of Rights and Freedoms  apply to the members of the House of Assembly when exercising their privileges as members?

 

Answer:  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.

 

2.If the answer to question 1 is yes, does exercising a privilege so as to refuse access to the media to the public gallery to record and relay to the public proceedings of the House of Assembly by means of their cameras contravene s. 2 (b) of the Canadian Charter of Rights and Freedoms ?

 

Answer:  Given my answer to the first question, it is not necessary that I answer the second constitutional question.

 

3.If the answer to question 2 is yes, is such a refusal a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society, pursuant to s. 1  of the Canadian Charter of Rights and Freedoms ?

 

Answer:  Given my answer to the first question, it is not necessary that answer the third constitutional question.

 

                   I would allow the appeal and set aside the order of the trial judge, as amended by the Court of Appeal of Nova Scotia.

 

//Sopinka J.//

 

                   The following are the reasons delivered by

 

                   Sopinka J. -- I have had the benefit of reading the reasons of the Chief Justice and Justices Cory and McLachlin, but regrettably, while I agree with much that is said in each of the reasons, I cannot agree with the conclusion reached.  Both the Chief Justice and McLachlin J. find that the impugned rule or practice of the legislative assembly is immune from scrutiny under the Canadian Charter of Rights and Freedoms  but on different grounds.  I find their respective reasons for disagreeing with the ground of immunity selected by the other equally compelling.  As a result, I have concluded that no such immunity exists.  I have only a few comments to add to what they have said.

 

                   With respect to the application of s. 32, I find the words "within the authority of the legislature" to be of significance.  This was a large factor in the reasoning in Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, in which this Court held that decisions of Cabinet were subject to the Charter .  At pages 463-64, Wilson J. stated:

 

. . . those words of limitation ["within the authority of Parliament"], like the corresponding words "within the authority of the legislature of each province" in s. 32(1) (b), are merely a reference to the division of powers in ss. 91  and 92  of the Constitution Act, 1867 .  They describe the subject-matters in relation to which the Parliament of Canada may legislate or the government of Canada may take executive action.  As Le Dain J. points out, the royal prerogative is "within the authority of Parliament" in the sense that Parliament is competent to legislate with respect to matters falling within its scope.  Since there is no reason in principle to distinguish between cabinet decisions made pursuant to statutory authority and those made in the exercise of the royal prerogative, and since the former clearly fall within the ambit of the Charter , I conclude that the latter do so also.

 

                   Similarly, the privileges of the members of the legislative assembly are subject to legislation by the province as part of the constitution of the province.  In Fielding v. Thomas, [1896] A.C. 600 (P.C.), at pp. 610-11, Lord Halsbury L.C. stated:

 

                   It surely cannot be contended that the independence of the provincial legislatures from outside interference, its protection, and the protection of its members from insult while in the discharge of their duties, are not matters which may be classed as part of the constitution of the province, or that legislation on such matters would not be aptly and properly described as part of the constitutional law of the province.

 

The exercise of those 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.  This conclusion would apply unless, as suggested in the reasons of McLachlin J., the rights and privileges are part of the Constitution of Canada and therefore not subject to provincial legislation.  I turn to consider this proposition.

 

                   The difficulty I have with the approach of my colleague, McLachlin J., is that in order to immunize certain privileges from Charter  review, she finds that they are part of the Constitution of Canada.  This occurs because they are referred to in the preamble to the Constitution Act, 1867 .  I would find it unusual that the framers of the Constitution Act, 1867  intended to entrench certain privileges by a general reference in the preamble but not the constitution of the province as a whole, which is specifically continued in force by s. 88 of that Act.  As a result, contrary to Fielding v. Thomas, these privileges would arguably not be subject to provincial legislation and any change would require an amendment to the Constitution of Canada pursuant to s. 43 , or indeed s. 38 , of the Constitution Act, 1982 .  Except for these privileges, the rest of the constitution of the province would remain subject to provincial legislation.  It seems to me that the prospect of losing legislative control over its rights and privileges would be a high price for the appellant to pay in order to escape the Charter .  One would expect something more than a general reference to "a Constitution similar in Principle" in a preamble in order to have this effect.  In R. v. Mercure, [1988] 1 S.C.R. 234, La Forest J., for the majority, held that s. 110 of The North-West Territories Act, R.S.C. 1886, c. 50 (as am. by 1891, c. 22, s. 18), was not entrenched by the terms of the Saskatchewan Act, S.C. 1905, c. 42.  He stated, at p. 271:

 

Not only is the province empowered to legislate respecting procedure in the courts under s. 92(14)  of the Constitution Act, 1867 ; it is also given power under s. 45  of the Constitution Act, 1982  to amend the constitution of the province.  But that is not all.  Parliament knew full well how to entrench a provision if it wished to do so, namely, by expressly providing for language rights in the Saskatchewan Act as it did in the case of s. 23 of the Manitoba Act, 1870.  Such provisions, in common with s. 133  of the Constitution Act, 1867 , are constitutionally protected and do not fall within the province's legislative capacity to amend its constitution or otherwise; see Attorney General of Quebec v. Blaikie, [[1979] 2 S.C.R. 1016], at pp. 1023-25.

 

It must be remembered that the Reference re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148, which is relied on for the principle that would immunize these privileges from Charter  review, involved a section of the Constitution Act, 1867  which specifically authorized legislation that could not be reconciled with s. 15  of the Charter 

 

                   With respect to the reasons of my colleague, Cory J., while I agree that s. 2 (b) may be engaged, I would allow the appeal because, in my view, any restriction on s. 2 (b) is justified under s. 1  of the Charter .  In this regard, the restriction on s. 2 (b) must be dealt with on the basis of the current situation.  As a result of a special study conducted by the legislative assembly, the original prohibition was relaxed in favour of the installation of the "electronic Hansard".  The cameras of the "electronic Hansard" are in the control of the Assembly.  They record the member recognized by the Speaker as having the floor.  A direct feed of the "electronic Hansard" is available to the media who are thus enabled to broadcast the proceedings live or tape them.

 

                   Viewed in light of this development, the effect of the impugned restriction is that members of the media are not allowed to have their hand-held cameras in the public gallery.  The effect on the publication of news is that they are prevented from obtaining the reaction of the members who are not speaking.  Presumably this may on occasion detract from the atmosphere of what is going on and no doubt may from time to time deprive the public of a considerable source of amusement.

 

                   I accept that the inability to gather news can occasion a restriction on freedom of expression if it interferes with disseminating the news.  The respondent alleges that it is prevented from determining the focus of the camera and hence is precluded from showing the atmosphere of the chamber including the non-verbal conduct of the members.  This Court has not determined whether the protection of s. 2 (b) extends not only to the gathering and dissemination of news but to the means by which that is done.  That determination will have implications far beyond the facts of this case and I prefer not to make it here.  Assuming that the restriction complained of is a violation of s. 2 (b), I am satisfied that it is justified under s. 1  of the Charter 

                   There can be no doubt that the exercise of this historic privilege is a pressing and substantial objective.  I accept the submission of the appellant that the objective is to maintain order and decorum and ensure the smooth functioning of the legislative assembly.  I cannot accept the respondent's submission that the real purpose of the rule is to limit public scrutiny.  The present restriction is also rationally connected to this objective.  Obviously, limiting the number and location of cameras promotes the objective of maintaining order and decorum.  While some other method might have been equally effective, the procedure which has been adopted appears eminently sensible and I am not prepared to second guess the legislative assembly who studied the matter and adopted a method which ensures that in essence the proceedings of the Assembly are made available to the television viewing audience.  While I reject the submission that the exercise of this privilege is beyond the reach of judicial review, I cannot ignore that this is an area in which the Court should not dictate the precise method in which the Assembly should keep order in its own house.  Finally, given the importance of preserving the decorum of the House of Assembly, the alleged intrusion on the freedom of the press is not out of proportion to this objective.

 

                   I would answer the constitutional questions as follows:

 

1.  Does the Canadian Charter of Rights and Freedoms  apply to the members of the House of Assembly when exercising their privileges as members?

 

                   Answer:      Yes.

 

2.  If the answer to question 1 is yes, does exercising a privilege so as to refuse access to the media to the public gallery to record and relay to the public proceedings of the House of Assembly by means of their cameras contravene s. 2 (b) of the Canadian Charter of Rights and Freedoms ?

 

3.  If the answer to question 2 is yes, is such a refusal a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society, pursuant to s. 1  of the Canadian Charter of Rights and Freedoms ?

 

Answer:  Assuming that the answer to question 2 is yes, the answer to question 3 is yes.

 

                   Otherwise, I would dispose of the appeal as proposed by the Chief Justice.

 

 

//Cory J.//

 

                   The following are the reasons delivered by

 

                   Cory J.  (dissenting) -- I have read with interest the reasons of the Chief Justice but I must, with the greatest of respect, differ from a part of his reasoning and from his conclusion.  I will attempt rather inadequately to encapsulate the portion of his reasons with which I disagree.  The Chief Justice has concluded that s. 32  of the Canadian Charter of Rights and Freedoms  cannot be taken as being applicable to the legislative assembly.  He has noted that s. 32  of the Charter  refers only to the "legislature and government" while the House of Assembly is neither "legislature" nor "government".  He observed that although the House of Assembly is a component of the legislature it is only in conjunction with the Lieutenant Governor that it comprises the legislature.  Thus he concluded that s. 32  is not applicable to the House of Assembly alone.  In his view, to apply s. 32  would make every exercise of privilege a matter that was subject to Charter  scrutiny.  With the greatest respect I cannot agree with these conclusions.

 

I.      Does Section 32 of the Charter  Apply to the House of Assembly?

 

                   Section 32 provides in part as follows:

 

32. (1)         This Charter applies

 

                                                                   . . .

 

(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

 

                   The appellant has relied upon RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, to support the argument that the Charter  does not apply to a legislative assembly, particularly upon the statement in that case that the passage of legislation is the only way in which a legislature may infringe a guaranteed right or freedom.  The relevant portion of that quotation is as follows (at pp. 598-99):

 

                   It is my view 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.  It will apply to those branches of government whether or not their action is invoked in public or private litigation.  It would seem that legislation is the only way in which a legislature may infringe a guaranteed right or freedom.  Action by the executive or administrative branches of government will generally depend upon legislation, that is, statutory authority.  Such action may also depend, however, on the common law, as in the case of the prerogative.  [Emphasis added.]

 

                   In my view the discussion as to the scope of the term "legislature" in s. 32(1)  by McIntyre J. is inconclusive.  While he assumed that the legislature may only infringe a Charter  right through legislation, he did not turn his mind to the question of whether "legislature" includes its essential, operative component, the legislative assembly.  Nor did he foreclose absolutely the consideration of the possible infringement of the Charter  by a legislative assembly flowing from the provisions of its rules, regulations or orders.

 

                   In McKinney v. University of Guelph, [1990] 3 S.C.R. 229,  La Forest J. quoted with approval the statement of McIntyre J.  However at pp. 261-62 he emphasized that the Charter  is essentially an instrument for checking the powers of government over the individual.  He went on to say (at p. 262):

 

Government is the body that can enact and enforce rules and authoritatively impinge on individual freedom.  Only government requires to be constitutionally shackled to preserve the rights of the individual.  Others, it is true, may offend against the rights of individuals.  This is especially true in a world in which economic life is largely left to the private sector where powerful private institutions are not directly affected by democratic forces.  But government can either regulate these or create distinct bodies for the protection of human rights and the advancement of human dignity.

 

                   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.

 

                   For example, 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?  Surely 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.

 

                   It seems to me that the operative part of the legislature is the House of Assembly.  It is the belief and fond hope of Canadians that it is in the chamber of the legislative assembly that the policy and principles of the laws to be enacted are discussed and debated.  It is there that opposing policies are put forward, discussed, criticized, defended and refined.  It is there that legislation is finally voted upon and enacted by the representatives of the people.  It is there that a fundamental aspect of a democratic government in action can be heard and be seen.  The result of the debates and the ensuing votes in the Assembly will affect the daily lives of all who reside in the province.  To the ordinary and reasonable citizen it is the legislative assembly which is the essential element of the "legislature" and a fundamental and integral part of the "government" of a province.

 

                   The words "legislature" and "government" must be held to include the essential and operative entity called the House of Assembly if this Court is to continue to give the Charter  a broad and liberal interpretation.  See Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 155.  The Charter  should apply not only to legislation passed by the Assembly but also to its own rules and regulations.  The rules and regulations, if they are found to violate the Charter , can, like the Acts passed by the Assembly, be saved under s. 1 .  Such a procedure would ensure that the courts never unduly interfere with the inherent and enacted rights and privileges possessed by a legislature and which enable it to effectively carry out its role.

 

                   This conclusion is supported by the principle that the interpretation and application of Charter  rights must be considered in the context of each case.  In this case, we are dealing with access by a branch of the news media to the public sessions of the legislative assembly.  The television media seek access to those sessions in order to gather information and report upon the democracy in action.  Obviously that access must be subject to reasonable control by the legislative assembly.  This is essential to prevent the television media becoming too intrusive and adversely affecting the efficient operation of the Assembly.  Yet access is not only appropriate but essential.  What better way is there for citizens to be informed of the work of the legislature than by an independent media?  What better manner exists for the citizens of Nova Scotia to be assured that their elected representatives are conscientiously striving to achieve results that are in the best interests of Nova Scotians?

 

                   Certainly it cannot be said that the sittings of the House of Assembly are closed to the public.  The reports of debates are assiduously transcribed in Hansard.  Indeed it is not unusual for members to send their constituents copies of their speeches made in the legislature.  To a fortunate few, the debates of the Assembly can be witnessed "live" and in "living technicolour".  However for the vast majority of Canadians, geography makes it well nigh impossible to attend the sittings of the House of Commons or their provincial legislature.  Quite apart from the realities of geography, the hardships of economics make it impossible for all to attend the sittings no matter how much they would like to be present.  Canadians must rely upon the news media for information regarding the debates in Parliament and the legislative assemblies and the work and efforts of their elected representatives.

 

                   If Canadians are to have confidence in the actions of their elected representatives, they must have accurate information as to what has transpired in the legislative assemblies and House of Commons.  Informed public opinion is the essential bedrock of a successful democratic government.  Accurate information can only be obtained by the public through the work of a responsible press which must today include television coverage. 

 

                   The importance of coverage of the public sessions of the legislative assembly by all branches of the media makes it readily apparent that the Charter  should be given a large and liberal interpretation with the result that s. 32  of the Charter  should apply to the Rules and Forms of Procedure of the House of Assembly.  Next it must be considered whether the legislation which enacts the privileges of the House of Assembly of Nova Scotia or its inherent privileges prohibit the application of the Charter  to its operation.

 

II.Does the Constitution of Nova Scotia or the Inherent Privileges of the Legislative Assembly Form Part of the Supreme Law of Canada so as to Make the Charter  Inapplicable?

 

                   The appellant has contended that barring of television cameras is an exercise of privilege of the legislative assembly and as such it is not subject to the Charter .  It is argued that the privileges of the legislative assembly of Nova Scotia form part of the Constitution of Canada and as a result the Charter  is not applicable to it.

 

                   The appellant relies upon Reference re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148, for the proposition that the Charter  cannot be applied to "abrogate or derogate from rights or privileges guaranteed by or under the Constitution" (p. 1196).  If the privileges exercised by the House of Assembly form part of the Canadian Constitution they have the same status as the Charter  and are not subject to it.

 

                   I have now had the opportunity of reading the thorough analyses of the Chief Justice and those of Justice McLachlin as well.  I agree with McLachlin J. that the legislatures of this country possess such constitutional privileges as are necessary for their operation.  I depart from the reasoning of my colleagues in that I believe that courts may, when properly called upon, enquire as to whether a particular exercise of parliamentary privilege falls within the privileged jurisdiction of the legislature.  I rely here upon the reasons of the majority in Reference re Provincial Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158.  There McLachlin J. held, at p. 179, that:

 

Although legislative jurisdiction to amend the provincial constitution cannot be removed from the province without constitutional amendment and is in this sense above Charter  scrutiny, the provincial exercise of its legislative authority is subject to the Charter ; as McEachern C.J. observed:  "(i)f the fruit of the constitutional tree does not conform to the Charter  . . . then it must to such extent be struck down":  Dixon v. B.C. (A.G.) (1986), 7 B.C.L.R. (2d) 174, at p. 188.

 

                   Applying that principle here, it is clear that the exercise of the constitutional power of privilege is not entrenched in the Constitution of Canada and the Charter  must apply to the exercise of that parliamentary privilege.  The privilege of the House of Assembly represents an exercise of legislative authority over itself and members of the media and is thus reviewable.

 

                   The test for review is one of necessity.  In Landers v. Woodworth (1878), 2 S.C.R. 158, the Nova Scotia House of Assembly claimed that it had the privilege to order one of its members to apologize and to forcibly remove him for contempt when he refused.  Concluding there was no such privilege, Ritchie J. stated (at pp. 201-2):

 

. . . the House of Assembly of Nova Scotia has no power to punish for any offence not an immediate obstruction to the due course of its proceedings and the proper exercise of its functions, such power not being an essential attribute, nor essentially necessary, for the exercise of its functions. . . .

 

I seek simply to apply this standard.  I cannot find that a complete prohibition on cameras is "essentially necessary" to the operation of the House nor that the presence of cameras would automatically constitute "an immediate obstruction".  Such a rule falls outside the constitutional scope of parliamentary privilege.  Richards C.J. in Landers in evaluating the exercise of privilege by the House against the member, asked "Was it necessary to do so in order to go on with the public business?" (p. 198).  If that question were posed in the case before us, the answer would be no.  The House of Assembly, when it banned all cameras, exceeded the jurisdiction inherent in parliamentary privilege.  The Charter  can thus apply under s. 32 .

 

                   Further, I agree with the conclusions of the Chief Justice that all the other submissions of the appellant that the Charter  should not apply to the legislative assembly should be dismissed.

 

III.        Does the Ban on Cameras Infringe Freedom of the Press?

 

                   Now it must be considered whether the refusal to permit any television cameras at public sessions of the legislative assembly violates s. 2 (b) of the Charter .

 

                   Section 2 (b) of the Charter  reads as follows:

 

                   2.  Everyone has the following fundamental freedoms:

                                                                   . . .

(b) Freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.

 

In my view, the protection of news gathering does not constitute a preferential treatment of an elite or entrenched group, the media, rather it constitutes an ancillary right essential for the meaningful exercise of the Charter .  Although the language of the section may not specifically grant special rights to a defined group it does include freedom of the press within the ambit of protected expression.  It is obvious that a prohibition on television cameras is by definition a restriction on freedom of the press.  Whether such a restriction is justified will depend on s. 1 .  Certainly, if the legislative assembly prohibits any media access to the public debates or excludes one form of the media (television) from the public debates, there has been an infringement of the Charter  right to freedom of expression. 

 

IV.     Is the Restriction Saved by Section 1 ?

 

                   This Court has recognized the special importance of the press to a democratic society.  In Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, at p. 1336, the following was said:

 

                   It is difficult to imagine a guaranteed right more important to a democratic society than freedom of expression.  Indeed a democracy cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions.  The concept of free and uninhibited speech permeates all truly democratic societies and institutions.  The vital importance of the concept cannot be over-emphasized.

 

                   The freedom of expression is as important for the listeners or watchers as it is for the speaker.  This too is recognized in Edmonton Journal where the following appears (at pp. 1339-40):

 

 

. . . freedom of expression "protects listeners as well as speakers".  That is to say as listeners and readers, members of the public have a right to information pertaining to public institutions and particularly the courts.  Here the press plays a fundamentally important role.  It is exceedingly difficult for many, if not most, people to attend a court trial.  Neither working couples nor mothers or fathers house-bound with young children, would find it possible to attend court.  Those who cannot attend rely in large measure upon the press to inform them about court proceedings --the nature of the evidence that was called, the arguments presented, the comments made by the trial judge -- in order to know not only what rights they may have, but how their problems might be dealt with in court.  It is only through the press that most individuals can really learn of what is transpiring in the courts.  They as "listeners" or readers have a right to receive this information.  Only then can they make an assessment of the institution.  Discussion of court cases and constructive criticism of court proceedings is dependent upon the receipt by the public of information as to what transpired in court.  Practically speaking, this information can only be obtained from the newspapers or other media.

 

                   The special importance of the operation of a free press, capable of gathering and transmitting information to the public was also emphasized in Canadian Broadcasting Corp. v. Lessard, [1991] 3 S.C.R. 421.  There La Forest J., concurring in the majority reasons, wrote at pp. 429-30:

 

. . . the freedom to disseminate information would be of little value if the freedom under s. 2 (b) did not also encompass the right to gather news and other information without undue governmental interference.

 

                   The need to protect the ability of the media to gather and communicate information was set out in Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1991] 3 S.C.R. 459, at p. 475:

 

                   The media have a vitally important role to play in a democratic society.  It is the media that, by gathering and disseminating news, enable members of our society to make an informed assessment of the issues which may significantly affect their lives and well-being.  The special significance of the work of the media was recognized by this Court in Edmonton Journal. . . .  The importance of that role and the manner in which it must be fulfilled give rise to special concerns when a warrant is sought to search media premises.

 

                   The television media constitute an integral part of the press.  Reporting in all forms has evolved over the ages.  Engraved stone tablets gave way to the baked clay tablets impressed with the cuneiform writing of the Assyrians and the papyrus records of the Egyptians.  It is not long ago that the quill pen was the sole means of transcribing the written word.  Surely today neither the taking of notes in shorthand or the use of unobtrusive tape recording devices to ensure accuracy would be banned from the press gallery.  Nor should the unobtrusive use of a video camera.  The video camera provides the ultimate means of accurately and completely recording all that transpires.  Not only the words spoken but the tone of voice, the nuances of verbal emphasis together with the gestures and facial expressions are recorded.  It provides the nearest and closest substitute to the physical presence of an interested observer.

 

                   So long as the camera is neither too pervasive nor too obtrusive, there can be no good reason for excluding it.  How can it be said that greater accuracy and completeness of reporting are to be discouraged?  Perhaps more Canadians receive their news by way of television than by any other means.  If there is to be an informed opinion in today's society, it will be informed in large part by television reporting.  Nor should we jump to the conclusion that if the media is granted broader rights that they will be abused.  Hand in hand with increased rights go increased responsibilities.  The responsibility of the press is to report accurately, fairly, and completely, that which is relevant and pertinent to public issues.  It may be argued that the television media will only broadcast that which is sensational.  That same argument could be advanced with regard to all forms of media.  Yet no one would consider barring the print media from a public session of the Assembly on the grounds that they tended to be sensationalist.  The public today is too intelligent, too discerning and too well informed to accept unfairly slanted or sensational reporting.

 

                   Clearly, the legislative assembly has a right in appropriate circumstances to exclude or remove visitors including the members of the press.  For example, the regulations can require all visitors to act properly, with reasonable dignity and decorum so that the legislative assembly can itself operate reasonably efficiently and with dignity and decorum.  With regard to the attendance of television media the number of cameras could be limited and their location and their manner of operation regulated.  What the Assembly cannot do is to exclude television entirely by means of regulation without infringing s. 2 (b) of the Charter .

 

V.       American Approach

 

                   The appellant relied on a decision of the Maryland Court of Appeals, Sigma Delta Chi v. Speaker, Maryland House of Delegates, 310 A.2d 156 (1973).  I do not think that decision is of much assistance in the resolution of this appeal.  There the members of the press sought an injunction against the Rules of the Senate and House of Delegates of Maryland which prohibit the use of recording instruments and electronic devices.  The basis for the injunction set forward by the media was that tape recorders in the chambers would promote greater accuracy and speed in reporting.  The Court of Appeals assumed for the purposes of the decision that the First Amendment protects the gathering of news, but, rejected the application on the ground that greater accuracy and speed in reporting were issues of insufficient weight to merit constitutional protection.  The reasons are brief.  It is debatable whether these reasons can stand in light of the later decision of the Supreme Court in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980).  It can be seen that the reasons turn on a very narrow issue namely that the convenience of the press did not warrant constitutional protection.  That is a far cry from the position put forward by the respondent in the case at bar.  Nevertheless, the United States Supreme Court has recognized that news-gathering receives some protection by way of the First Amendment.  See Branzburg v. Hayes, 408 U.S. 665 (1972), at p. 707.  There can be no doubt however that the phrase "or the press" has engendered controversy and debate.  The objection is raised against treating freedom of the press as creating a distinct right available to a defined social group, the press, over ordinary citizens.  Such an interpretation would grant privileges to an institution organized as a powerful private business which are not shared by other citizens.

 

                   In Houchins v. KQED, Inc., 438 U.S. 1 (1978), the Supreme Court considered a claim that the First Amendment protected the right of the press to enter a county jail, photograph the premises and interview inmates.  The First Amendment provides "Congress shall make no law . . . abridging the freedom of speech, or of the press".  The District Court had enjoined the County from denying KQED access to the jail.  The Court of Appeals affirmed this result but the Supreme Court reversed.  There was no majority judgment in the Supreme Court.  Burger C.J. joined by White and Rehnquist JJ., held that the First Amendment does not grant to the press a constitutional right of access to a prison and inmates beyond that available to the general public.  Stewart J. concurred in the result, but not in the reasoning of Burger C.J.  While he agreed that the First Amendment did not guarantee the press greater rights of access than members of the public, he would implement that principle in a more flexible manner.  Of Burger C.J.'s reasons, Steward J. observed (at pp. 16-17):

 

Whereas he appears to view "equal access" as meaning access that is identical in all respects, I believe that the concept of equal access must be accorded more flexibility in order to accommodate the practical distinctions between the press and the general public . . .

 

                                                                   . . .

 

                   That the First Amendment speaks separately of freedom of speech and freedom of the press is no constitutional accident, but an acknowledgement of the critical role played by the press in American society.  The Constitution requires sensitivity to that role, and to the special needs of the press in performing it effectively.  A person touring Santa Rita jail can grasp its reality with his own eyes and ears.  But if a television reporter is to convey the jail's sights and sounds to those who cannot personally visit the place, he must use the cameras and sound equipment.  In short, terms of access that are reasonably imposed on individual members of the public may, if they impede effective reporting without sufficient justification, be unreasonable as applied to journalists who are there to convey to the general public what the visitors see.

 

 

                   Thus Stewart J. concurred in reversing the Court of Appeals but would have granted KQED more limited injunctive relief.  Stevens J., with whom Brennan and Powell JJ. concurred, dissented in the result.  He held that any denial of access to the prison, either to the public or to the press, constituted a breach of the First and Fourteenth Amendments.  The dissenting judges would have affirmed the decision of the Court of Appeals.  Although the appellant succeeded, the effective majority position is the moderate one advanced by Stewart J., which would allow the press access with television cameras and other broadcast tools, to those places where there is a general right of access.

 

                   In an article by John H. F. Shattuck and Fritz Byers, it was argued that the speech and press clauses of the First Amendment are in fact separate, and complementary, aspects of constitutional protection of free expression (see "An Egalitarian Interpretation of the First Amendment" (1981), 16 Harv. C.R.-C.L. L. Rev. 377).  In their view the net effect of the position that the press should have no rights of access beyond those of the public made in Houchins, supra, was to undermine the First Amendment freedoms for all citizens.  The authors' position is that an egalitarian philosophy does not require that members of the press and all other citizens be treated in an identical manner.  Rather the authors contend that the true meaning of the First Amendment is that the speech clause protects public speaking and political action while the press clause protects news-gathering, but in both cases the conduct undertaken lies "at the heart" of the right (see p. 398).  The authors argued that the courts of the United States should recognize the significant and unique role of the press as the necessary agents for the gathering and dissemination of information to Americans.

 

                   In Richmond Newspapers, supra, the United States Supreme Court held that both the public and the press have a right of access to courts.  In this judgment, the majority of the Court, in several concurring opinions, recognized that the First Amendment protection of freedom of speech and the press required guarantees of access to information in order to have any significance.  These guarantees vary depending on the information sought and the interest protected by preventing the gathering of that information.  The Court held that, the importance of criminal trials to public life required that protection be given to access to criminal trials for the press and the public.  In the words of Brennan J. (concurring in the judgment), at pp. 587-88:

 

 

But the First Amendment embodies more than a commitment to free expression and communicative interchange for their own sakes; it has a structural role to play in securing and fostering our republican system of self-government. . . .  Implicit in this structural role is not only `the principle that debate on public issues should be uninhibited, robust, and wide-open,' New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964), but also the antecedent assumption that valuable public debate--as well as other civic behavior--must be informed.  The structural model links the First Amendment to that process of communication necessary for a democracy to survive, and thus entails solicitude not only for communication itself, but also for the indispensable conditions of meaningful communication.  [Emphasis in original.]

 

                   In my view the most significant aspect of the American jurisprudence is the recognition in Richmond Newspapers of the importance of protecting access to information in order to foster the free and informed public debate which is so essential to the continued well-being of any democratic form of government.  Thus the American decisions may be of limited assistance to the  appellant in resolving this issue.  If anything the cases and academic writing appear to support the position of the respondent.

 

                   I would repeat that a balance must be kept between efficient and dignified operation of the legislative assembly and the right of freedom of expression.  It seems that the regulation which is now in force with agreement of all parties with regard to the television cameras, limiting their number and position, is eminently fair and suitable and would be justifiable under s. 1  of the Charter .  However the refusal to permit any television cameras contravenes the provisions of s. 2 (b) of the Charter  and cannot be justified under s. 1 .

 

VI.     Disposition

 

                   In the result I would dismiss the appeal.

 

                   Appeal allowed, Cory J. dissenting.

 

                   Solicitors for the appellant:  Graham D. Walker and Reinhold M. Endres, Halifax.

 

                   Solicitors for the respondent:  Boyne, Clarke, Dartmouth.

 

                   Solicitors for the intervener the Speaker of the Senate:  McCarthy Tétrault, Toronto.

 

                   Solicitors for the intervener the Speaker of the House of Commons:  Soloway, Wright, Ottawa.

 

                   Solicitors for the intervener the Speaker of the Legislative Assembly of Ontario:  Blake, Cassels & Graydon, Toronto.

 

                   Solicitors for the intervener the President of the National Assembly of Quebec:  Langlois, Robert, Montréal.

 

                   Solicitors for the interveners the Speaker of the Legislative Assembly of Manitoba and the Speaker of the Legislative Assembly of Saskatchewan:  MacPherson, Leslie & Tyerman, Regina.

 

                   Solicitors for the intervener the Speaker of the Legislative Assembly of British Columbia:  Russell & DuMoulin, Vancouver.

 

                   Solicitors for the Speaker of the Legislative Assembly of Prince Edward Island:  Roger B. Langille and Charles P. Thompson, Charlottetown.

 

                   Solicitor for the intervener the Speaker of the Legislative Assembly of Alberta, the Speaker of the Legislative Assembly of the Northwest Territories and the Speaker of the Legislative Assembly of the Yukon:  Tarrabain & Company, Edmonton.

 

                   Solicitor for the intervener the Speaker of the House of Assembly of Newfoundland:  The Department of Justice, St. John's.

 

                   Solicitor for the intervener the Attorney General for Ontario:  The Ministry of the Attorney General, Toronto.

 

                   Solicitor for the intervener the Attorney General of British Columbia:  The Ministry of Attorney General, Victoria.

 

                   Solicitors for the intervener the Canadian Association of Journalists:  Gowling, Strathy & Henderson, Ottawa.

 



     * Stevenson J. took no part in the judgment.

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