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

New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly)
Supreme Court of Canada
Hearing: March 2-3, 1992 Judgment: January 21, 1993
Full case name: Arthur Donahoe in his capacity as the Speaker of the House of Assembly v. Canadian Broadcasting Corporation Citations: [1993] 1 S.C.R. 319, 1993 CanLII 153 (S.C.C.); (1993), 118 N.S.R. (2d) 181; (1993), 118 N.S.R. (2e) 181; (1993), 100 D.L.R. (4th) 212; (1993), 13 C.R.R. (2d) 1 History: Judgment for Canadian Broadcasting Corporation in the (Nova Scotia Court of Appeal)
Holding
Parliamentary privileges are a part of the unwritten convention in the Constitution of Canada. Therefore, the Charter of Rights and Freedoms do not apply to members of House of Assembly when they exercise their inherent privileges.
Court membership
Chief Justice: Antonio Lamer Puisne Justices: Gérard La Forest, Claire L'Heureux-Dubé, John Sopinka, Charles Gonthier, Peter Cory, Beverley McLachlin, Frank Iacobucci, John C. Major
Reasons given
Majority by: McLachlin J. Joined by: L'Heureux-Dubé, Gonthier, Iacobucci JJ. Concurrence by: Lamer C.J. Concurrence by: La Forest J. Concurrence by: Sopinka J. Dissent by: Cory J.

New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly) 1993 SCC 10 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.

Background

New Brunswick Broadcasting Company, 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.

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 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.

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 privilege
• Canada (House of Commons) v. Vaid, [2005] 1 S.C.R. 667, 2005 SCC 30

External links

• Full text of Supreme Court of Canada decision at LexUMand CanLII
• Parliamentary Privilege - United Kingdom Parliament
• Commonwealth Parliamentary Association's Module on Parliamentary Democracy