New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly) [1993] 1 S.C.R. 319: -Provincial legislature refusing media access to public gallery to film proceedings with their own cameras - Whether refusal infringes guarantee of freedom of expression

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.

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.

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