New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly)
Encyclopedia
New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly) is a leading Supreme Court of Canada
decision wherein the court has ruled that parliamentary privilege
is a part of the unwritten convention in the Constitution of Canada
. Therefore, the Canadian Charter of Rights and Freedoms
do not apply to members of Nova Scotia House of Assembly
when they exercise their inherent privileges of refusing strangers from entering the House
.
, carrying on business under the name of MITV
, had made a request to film the proceedings of the Nova Scotia House of Assembly with its own camera or one provided by the speaker. However, the speaker
refused television cameras in the House citing parliamentary privilege. New Brunswick Broadcasting Co. appealed the ruling, citing violation of the Canadian Charter of Rights and Freedoms. Both the Supreme Court of Nova Scotia, Trial Division
and Supreme Court of Nova Scotia, Appeal Division
agreed that the prohibition violates freedom of speech
and ordered Nova Scotia House of Assembly to allow cameras in the House.
The court found that although the tradition of curial deference does not cover all activities of a legislative assembly, it includes the privileges of legislative assemblies. This right is necessary to the functioning of that body and should not be set aside lightly. In addition, the majority agrees that the Charter of Rights and Freedoms do not apply to the house of assembly's privilege because the privilege, including the rights to exclude stranger, is part of the Constitution of Canada. The preamble
to the Constitution Act, 1867
states that the constitution's intention is to establish "a Constitution similar in Principle to that of the United Kingdom". Thus, parliamentary privilege cannot be negated by another part of the Constitution. Furthermore, the "Constitution of Canada" in section of the Constitution Act, 1982
is not meant to be exhaustive and unwritten convention can be part of the constitution.
Justice La Forest, in a separate opinion, agreed with the majority's argument with the exception that the constitutional status of parliamentary privilege inherits from being part of the colony's constitution (pre-dating the confederation
) instead of being part of the United Kingdom's constitution.
Chief Justice Lamer, in a separate concurring opinion, ruled that the Court can inquire on the existence, but not the exercise, of parliamentary privilege. He agreed with Justice La Forest's assertion that the privileges enjoyed by Canadian parliament is different from the Houses of Parliament of the United Kingdom
. Furthermore, Chief Justice Lamer commented that Section Thirty-two of the Canadian Charter of Rights and Freedoms
is not applicable to the action because section Thirty-Two concerns with the legislation that the provinces have enacted with respect to privileges, not the exercise of it.
Justice Sopinka, in a separate concurring opinion, argued that the practice of legislative assembly is not immune to the Charter of Rights and Freedom and the exercise of parliamentary privilege is subject to Section 32 of the Charter of Rights. On the other hand, he ruled that the limitation of Section 2b
of the Charter is a reasonable one justified by Section One of the Canadian Charter of Rights and Freedoms
because its objective is to maintain order and decorum and ensure the smooth functioning of the legislative assembly.
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
decision wherein the court has ruled that parliamentary privilege
Parliamentary privilege
Parliamentary privilege is a legal immunity enjoyed by members of certain legislatures, in which legislators are granted protection against civil or criminal liability for actions done or statements made related to one's duties as a legislator. It is common in countries whose constitutions are...
is a part of the unwritten convention in the Constitution of Canada
Constitution of Canada
The Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions. It outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada...
. Therefore, the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
do not apply to members of Nova Scotia House of Assembly
Nova Scotia House of Assembly
The Nova Scotia Legislature, consisting of Her Majesty The Queen represented by the Lieutenant Governor and the House of Assembly, is the legislative branch of the provincial government of Nova Scotia, Canada...
when they exercise their inherent privileges of refusing strangers from entering the House
House of Assembly
House of Assembly is a name given to the legislature or lower house of a bicameral parliament. In some countries this may be at a subnational level....
.
Background
New Brunswick Broadcasting CompanyNew Brunswick Broadcasting Company
New Brunswick Broadcasting Company Limited was a Canadian media holding company based in Saint John, New Brunswick.- History :New Brunswick Broadcasting was established in 1934 when Saint John Publishing purchased the Saint John radio station CFBO. Four local men who published the two major...
, carrying on business under the name of MITV
CIHF-TV
CIHF-DT, channel 8, is a television station in Halifax, Nova Scotia, Canada. Owned by Shaw Media, it serves the Maritime provinces as an owned-and-operated station of the Global Television Network...
, had made a request to film the proceedings of the Nova Scotia House of Assembly with its own camera or one provided by the speaker. However, the speaker
Speaker (politics)
The term speaker is a title often given to the presiding officer of a deliberative assembly, especially a legislative body. The speaker's official role is to moderate debate, make rulings on procedure, announce the results of votes, and the like. The speaker decides who may speak and has the...
refused television cameras in the House citing parliamentary privilege. New Brunswick Broadcasting Co. appealed the ruling, citing violation of the Canadian Charter of Rights and Freedoms. Both the Supreme Court of Nova Scotia, Trial Division
Nova Scotia Supreme Court
The Nova Scotia Supreme Court is a superior court in the province of Nova Scotia.The Court comprises the Chief Justice , the Associate Chief justice, twenty-one judges and six supernumerary Justices, who sit in 18 different locations around the province.-Jurisdiction:As with all superior courts...
and Supreme Court of Nova Scotia, Appeal Division
Nova Scotia Court of Appeal
The Court of Appeal for Nova Scotia is the highest appeal court in the province of Nova Scotia, Canada. There are currently seven Justices and one Chief Justice. The court sits in Halifax, which is the capital of Nova Scotia...
agreed that the prohibition violates freedom of speech
Freedom of speech
Freedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...
and ordered Nova Scotia House of Assembly to allow cameras in the House.
Ruling
The majority was written by Justice McLachlin with Justice L'Heureux-Dubé, Gonthier and Iacobucci concurring.The court found that although the tradition of curial deference does not cover all activities of a legislative assembly, it includes the privileges of legislative assemblies. This right is necessary to the functioning of that body and should not be set aside lightly. In addition, the majority agrees that the Charter of Rights and Freedoms do not apply to the house of assembly's privilege because the privilege, including the rights to exclude stranger, is part of the Constitution of Canada. The preamble
Preamble
A preamble is an introductory and expressionary statement in a document that explains the document's purpose and underlying philosophy. When applied to the opening paragraphs of a statute, it may recite historical facts pertinent to the subject of the statute...
to the Constitution Act, 1867
Constitution Act, 1867
The Constitution Act, 1867 , is a major part of Canada's Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system...
states that the constitution's intention is to establish "a Constitution similar in Principle to that of the United Kingdom". Thus, parliamentary privilege cannot be negated by another part of the Constitution. Furthermore, the "Constitution of Canada" in section of the Constitution Act, 1982
Constitution Act, 1982
The Constitution Act, 1982 is a part of the Constitution of Canada. The Act was introduced as part of Canada's process of "patriating" the constitution, introducing several amendments to the British North America Act, 1867, and changing the latter's name in Canada to the Constitution Act, 1867...
is not meant to be exhaustive and unwritten convention can be part of the constitution.
Justice La Forest, in a separate opinion, agreed with the majority's argument with the exception that the constitutional status of parliamentary privilege inherits from being part of the colony's constitution (pre-dating the confederation
Canadian Confederation
Canadian Confederation was the process by which the federal Dominion of Canada was formed on July 1, 1867. On that day, three British colonies were formed into four Canadian provinces...
) instead of being part of the United Kingdom's constitution.
Chief Justice Lamer, in a separate concurring opinion, ruled that the Court can inquire on the existence, but not the exercise, of parliamentary privilege. He agreed with Justice La Forest's assertion that the privileges enjoyed by Canadian parliament is different from the Houses of Parliament of the United Kingdom
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
. Furthermore, Chief Justice Lamer commented that Section Thirty-two of the Canadian Charter of Rights and Freedoms
Section Thirty-two of the Canadian Charter of Rights and Freedoms
Section Thirty-two of the Canadian Charter of Rights and Freedoms concerns the application and scope of the Charter. Only claims based on the type of law contemplated by this section can be brought before the Court....
is not applicable to the action because section Thirty-Two concerns with the legislation that the provinces have enacted with respect to privileges, not the exercise of it.
Justice Sopinka, in a separate concurring opinion, argued that the practice of legislative assembly is not immune to the Charter of Rights and Freedom and the exercise of parliamentary privilege is subject to Section 32 of the Charter of Rights. On the other hand, he ruled that the limitation of Section 2b
Section Two of the Canadian Charter of Rights and Freedoms
Section Two of the Canadian Charter of Rights and Freedoms is the section of the Constitution of Canada's Charter of Rights that lists what the Charter calls "fundamental freedoms" theoretically applying to everyone in Canada, regardless of whether they are a Canadian citizen, or an individual or...
of the Charter is a reasonable one justified by Section One of the Canadian Charter of Rights and Freedoms
Section One of the Canadian Charter of Rights and Freedoms
Section One of the Canadian Charter of Rights and Freedoms is the section of the Charter that confirms that the rights listed in that document are guaranteed. The section is also known as the reasonable limits clause or limitations clause, as it legally allows the government to limit an...
because its objective is to maintain order and decorum and ensure the smooth functioning of the legislative assembly.
Dissent
Justice Cory wrote the dissent opinion. He argued that the exercise of privilege falls under Section 32 of the Charter and is subject to court's review. This follows that the ban on television cameras is reviewable by Canadian courts. Justice Cory concluded that the complete ban on cameras is not essentially necessary to the House's operation and exceeded the jurisdiction inherent in parliamentary privilege. This follows that the infringement of Section 2b of the Charter of Rights and Freedom is not reasonable within the context of Section 1.See also
- List of Supreme Court of Canada cases (Lamer Court)
- Parliamentary privilegeParliamentary privilegeParliamentary privilege is a legal immunity enjoyed by members of certain legislatures, in which legislators are granted protection against civil or criminal liability for actions done or statements made related to one's duties as a legislator. It is common in countries whose constitutions are...
- Canada (House of Commons) v. VaidCanada (House of Commons) v. VaidCanada v. Vaid, [2005] 1 S.C.R. 667, 2005 SCC 30 is the leading decision of the Supreme Court of Canada on parliamentary privilege....
, [2005] 1 S.C.R. 667, 2005 SCC 30