Inside and Outside of the House of Commons: The Relationship Between Freedom of Expression, Freedom of Speech and Parliamentary Privilege
Jennifer Dumoulin is a PhD candidate and part-time professor in the Department of Communication at the University of Ottawa.
Freedom of expression is an essential condition for democracy, but under the Canadian Charter of Rights and Freedoms, it is not absolute. In this article, the author explores the concepts of freedom of expression and freedom of speech within Canadian society generally and in the House of Commons in particular. She concludes that the House of Commons is a place where the more restrictive concept of freedom of speech – subject to and limited by the parliamentary privilege of the legislature to control its internal proceedings – applies because a fully realized Charter guarantee to freedom of expression would actually hamper the proper functioning of the House. If Members of Parliament were able to express themselves freely and without limitations, then debate would be neither productive nor orderly and it is likely that some Members would have no opportunity to speak at all. While freedom of speech may seem at first glance to be overly restrictive in comparison with the guarantee to freedom of expression that exists outside of the House of Commons, the author contends its existence and exercise is, in fact, necessary to its proper and functioning.
Freedom of expression is a necessary condition for democracy. It ensures that issues of common concern are freely and openly debated and allows for the criticism of public institutions.1 Among other things, its purpose is to “[promote] the free flow of ideas essential to political democracy and the functioning of democratic institutions”.2 Despite this important function, freedom of expression is not absolute. Section 1 of the Canadian Charter of Rights and Freedoms permits limits on freedom of expression if they are reasonable and justifiable in a free and democratic society.
Freedom of speech, which exists solely in a legislative context, is also a necessary condition for democracy. Like freedom of expression, freedom of speech has constitutional status; its origins trace back to the Constitution Act, 1867 and the Parliament of Canada Act. The two freedoms, however, differ in scope and application. Freedom of expression entails the right to express oneself and the right to be free from compelled speech and, per the Charter, applies to everyone; freedom of speech on the other hand applies only to elected representatives, granting them immunity from civil or criminal prosecution for statements made in the course of parliamentary business. Further, while freedom of speech permits Members to speak freely, it does not allow them to speak whenever they wish. This is because the parliamentary privilege of freedom of speech is limited by and subject to the internal control of legislatures.3
While it is possible to debate whether any limits to such fundamental freedoms are ever justifiable, it is commonly accepted to be true. Constitutional freedoms related to expression and speech are limited not only within society as a whole, but also within its governing democratic institutions through both formal procedures and informal practices. At first glance, such limitations appear counterintuitive. How can everyday citizens and, more specifically, elected representatives properly deliberate and create laws if they do not have the ability to express themselves freely while doing so? This article explores this contradiction by comparing the leading legal tests for the right to freedom of expression within the parliamentary privilege of freedom of speech in order to determine whether the limits imposed within the House of Commons are reconcilable with the Charter.
The right to freedom of expression
While Section 2(b) of the Charter guarantees the right to freedom of expression, it provides very little guidance on the actual content of the freedom. The courts have filled in this gap, identifying two branches of the right, including the right to express oneself. The 1989 case Irwin Toy established the three steps of the freedom of expression test, each of which will be discussed in further detail below.
Step 1: Is the activity protected by freedom of expression?
Every expression has both form – the method of communication – and content – the meaning conveyed. As established in Irwin Toy, any activity that is expressive and attempts to convey meaning is prima facie protected by freedom of expression.4 Further, there are “an infinite variety of forms” that expression can take, including the written and spoken word and physical acts and gestures,5 and only violent forms of expression have been excluded from the protection.
Step 2: Was the purpose or effect of government action to restrict freedom of expression?
Even though an activity may be protected by freedom of expression, if government action either in purpose or effect does not restrict the expression itself then there is no Charter infringement. Where the purpose of government action is, however, to single out particular meanings not to be conveyed, control access to the meaning, or control the ability of a person to convey meaning, then freedom of expression is violated.6 Where the purpose of government action is to restrict the consequences of the activity – irrespective the meaning – then its purpose is not to control expression and there is no infringement.
Step 3: Is the limitation reasonable and justifiable in a free and democratic society?
An infringement can be justified under Section 1 of the Charter if it satisfies the test found in the 1986 case R. v. Oakes. To do so, the government must demonstrate that the limitation is rationally connected to a pressing and substantial concern, that it minimally impairs freedom of expression, and that its benefits outweigh its deleterious effects.
Some restrictions to freedom of expression are more easily justifiable than others. For example, the Supreme Court of Canada found that commercial expression and pornography were on different “footing” from other forms of expression that “directly engage the ‘core’ of freedom of expression values”.7 Commercial expression and pornography are primarily economic, therefore any resulting losses would also be economic in nature. The court held that this is more acceptable than the “loss of opportunity to participate in the political process or the ‘marketplace of ideas’” – values that lie at the core of freedom of expression.8
Freedom of expression and the impact of location
In Montréal (City) v. 2952-1366 Québec Inc., the Supreme Court held that freedom of expression includes “the right to express oneself in certain public spaces”.9 Whether a space is ‘public’ turns, first, on ownership. While a space may be public “by dint of being the property of some government entity”,10 not all government-owned spaces are ‘public spaces’ – “many government places are essentially private in use”.11 Office space, for example, is a private space that even if located on government-owned property would not be recognized as a space for public expression. Whether the right to freedom of expression is protected within a government-owned space depends on how that space is used.
Two legal tests emerged in the 1991 Supreme Court case Committee for the Commonwealth of Canada v. Canada to determine whether there should be blanket protection for freedom of expression within a public space, however neither has been identified as definitive. The first test asked whether the primary function of the space is compatible with free expression. The second test considered whether protecting free expression in the space serves the underlying values of the guarantee. In both cases, if the test can be answered in the affirmative, then free expression should always be guaranteed within the space at issue.
The Supreme Court revisited the issue of location again in Montréal (City) when it brought together elements from both pre-existing tests. Under this new approach, the question to answer is “whether the place is a public place where one would expect constitutional protection for free expression [if] that expression does not conflict with the purposes which s.2(b) is intended to serve”.12 Two factors are to be considered in this analysis: the historical or actual function of the place and whether there is any reason that free expression within that space would actually undermine the values of the freedom.
Determining the function of a space provides an answer to whether free expression within a space is consistent with the Charter. Where free expression has traditionally been permitted, protecting it would not undermine the values of freedom of expression. In contrast, if the actual function of a space and the activity occurring within it would be hampered by free expression, then it would likely not be protected because extending freedom of expression to such places “might well undermine democracy and efficient governance”.13
If an analysis determines that the public space is one where free expression would be expected and such expression does not undermine the values of freedom of expression, then expression within that location is protected under Section 2(b). One would then need to complete the limitation analysis by considering whether the purpose and effect of the government was to restrict freedom of expression within that space and, if so, determine whether that restriction is justifiable under the Charter.
Parliamentary privilege and freedom of speech
Freedom of speech, a privilege enjoyed individually by Members of Parliament, is subject to the parliamentary privilege of exclusive control over legislative proceedings, which is extended to the legislature as a whole. At the federal level, this privilege allows the House of Commons to set its own rules of procedure and practice, which are established in the Standing Orders of the House of Commons as well as by temporary, sessional or special orders. Among other things, these rules and procedures control the timing and duration of speech, the allocation of speaking time, the subject of speech and the manner in which a Member can speak.14
In addition to the formal rules, speech may also be subject to internal traditions and norms that constrain expression. For example, Members must refer to each other by constituency or ministerial title rather than by name and must address all speeches and questions to the Speaker. The use of a list system to allocate questions during Question Period is another example of how free speech is limited in the House.15
Are the limits of freedom to speech imposed by the exercise of parliamentary privilege reconcilable with the Charter right to freedom of expression?
Under the Parliament of Canada Act, parliamentary privileges are part of the general and public law of Canada. They are also legal rights with constitutional status derived from the Preamble of the Constitution, from tradition and from the principle of necessity. The principle of necessity is used to determine whether the exercise of privilege is justifiable. In particular, it asks whether the exercise of privilege is necessary to ensure “the dignity and efficiency of the House” and its proper functioning.16
That the exercise of parliamentary privilege may be necessary does not, however, reconcile the difference between the scope of the Charter guarantee to freedom of expression and the parliamentary privilege of freedom of speech within the House of Commons. Nor does it explain whether the exercise of control over the proceedings and internal affairs of the House is consistent with limitations to the guarantee of freedom of expression. This is perhaps because once the exercise of parliamentary privilege is deemed necessary, the courts do not have the jurisdiction to review how the privilege is used.17 The necessity test articulated in New Brunswick Broadcasting as well as those tests from Irwin Toy and Montréal (City) can be used theoretically to address this gap.
Is freedom of speech necessary for Members of the House of Commons to fulfill their role as an elected representative?
Traditionally, the role of an elected representative has been to pass legislation and policy. Now, however, this role is seen as “less central”, as Members must balance the duties of four different activities: law-making, surveillance of government activity, providing constituency services and fulfilling party obligations.18 This shift can be attributed to the increasing importance of political parties, partisan politics, and party discipline which hold great influence over Members, requiring them to speak and vote along party lines.19
There are numerous mechanisms within the House to facilitate the oversight and surveillance of government activity. Oral Question Period, the most high profile of these proceedings, garners significant media attention. As such, it is carefully and rigorously controlled by political parties. Question Period therefore blurs the roles of elected representatives – requiring them to hold the government accountable for its actions while simultaneously affirming their parties’ position on the issue at hand. This undoubtedly pits Opposition Members against Government Members, with the former criticizing government action or inaction and the latter defending it.
In order to properly execute their duties of oversight and party allegiance, Members require the ability to speak freely and criticize the position of others without the fear of legal consequences. They need the ability to make assertions – or even accusations – in order to seek out the ‘truth’. To this extent, the guarantee of freedom of speech within the House is not only necessary but also consistent with two of the underlying values of the Charter guarantee to freedom of expression: the enhancement of democracy and the pursuit of truth through the exchange of ideas.
Is the control over the internal proceedings and affairs of the House of Commons necessary for its proper functioning?
Unlike the primary function of Members of Parliament, that of the House of Commons is clear and identifiable – its central purpose is law-making.20 To fulfill this purpose, legislatures must foster true deliberation involving the presentation and critique of the different positions on an issue in order to make an informed collective decision about the content of legislation.21 Inside the House, like outside of it, debate over diverse and contentious points of view can quickly become heated and politically charged. Parliamentary procedures reduce the use of inflammatory and offensive speech in the House and decrease the likelihood of outbursts and interruptions. They also promote equity and fairness by limiting the length of speeches so that all Members wishing to do so may have an opportunity to express themselves on an issue.
Parliamentary procedures that restrict the duration, content and manner of speech are used to foster civility among Members and ensure that deliberation occurs in a productive manner. They also minimize the obstruction and unnecessary prolongation of parliamentary business.22 Absent such rules and procedures, debate would likely occur in an ad hoc and disruptive manner – if it occurred at all. As such, control over the internal affairs and proceedings of the House ensures its proper functioning. This conclusion echoes the findings of the Supreme Court in New Brunswick Broadcasting, which considered the ability of legislatures to exclude strangers from its proceedings.
Are the limitations to freedom of speech resulting from the control of the internal affairs and proceedings of the House of Commons reconcilable with the Charter?
It is not necessary to delve into great detail to determine whether freedom of speech as provided for under parliamentary privilege is consistent with the broader guarantee of freedom of expression found in the Charter. Simply put, freedom of speech allows Members to critically engage in debate with other Members. In fact, it could be argued that when understood as the freedom to speak on matters of parliamentary business without fear of criminal or civil prosecution, freedom of speech actually encourages free expression by reducing the risks of participation. As such, despite its difference in scope and application, freedom of speech is consistent with the right to freedom of expression found in Section 2(b) of the Charter. It therefore remains to be seen whether the limitations imposed on freedom of speech by the parliamentary privilege to control the internal affairs and proceedings of the House is consistent with the Charter.
In the House of Commons, all acts of expression convey meaning. Furthermore, all acts are either written or oral, although an argument could certainly be made that some acts are physical such as abstaining from or casting a vote. Regardless, the acts in question are not a prohibited form of content and are therefore comparable with acts protected by freedom of expression.
The second step of the Irwin Toy test considers whether the purpose or effect of the limitation is to restrict freedom of expression. Both a purposive and a plain meaning approach to interpretation of the Standing Orders result in the same conclusion: that their purpose is to restrict expression. Standing Order 18, for example, explicitly singles out particular meanings, such as offensive words, that are not to be conveyed in the House. Other Standing Orders control the ability of a person to convey meaning by limiting the content and subject matter of speech to topics on the Order Paper. They also set the duration, frequency and timing of speech.
The Charter test for freedom of expression requires that any limitation imposed on the freedom be justifiable. To do so, a limitation must address and be rationally connected to a pressing and substantial concern, minimally impair freedom of expression and the benefits of the limitation must outweigh any deleterious effects.
The purpose of the Standing Orders is to ensure orderly and productive debate within the House. Without orderly and productive debate, it would be impossible to deliberate on legislation. Thus, the Standing Orders address both a pressing and substantial concern and are rationally connected to that concern. It could be argued, however, that they do not minimally impair freedom of expression because many individual Orders, including Standing Order 18, contain blanket prohibitions on expressive activity. Existing jurisprudence on the law of freedom of expression has found that complete bans generally do not minimally impair freedom of expression.23 They will, however, be acceptable if it can be shown that only a full prohibition on expressive activity would achieve the objective of the legislation.24
Based on the foregoing, it appears that elected representatives are subject to more restrictive limitations on freedom of speech than would be permitted outside of the legislature under the Charter right to freedom of expression. That the limitations imposed on freedom of expression by the Standing Orders may not be justifiable in a free and democratic society is problematic. It implies that meaningful debate within the House is not possible, which in turn undermines all legislative action and the very purpose of legislatures. This issue can be reconciled through an application of the Montréal (City) test and, by extension, under both tests articulated in Committee for the Commonwealth of Canada.
The question to be answered under the revised approach in Montréal (City) can be broken down into the following elements: whether the House of Commons is a public space where one would expect constitutional protection for free expression and whether free expression within the House would conflict with the underlying purposes of Section 2(b) of the Charter. To answer these questions, it is necessary to consider both the traditional and actual function of the House of Commons. Freedom of expression has never been permitted outright in the House of Commons, as it has always been constrained by the parliamentary privilege of the legislature to control its internal procedures. In addition, completely unfettered expression would actually hamper the proper functioning of the House of Commons because limits are needed to ensure both fairness and equity between Members as well as the occurrence of productive and orderly debate. Further to this point, without productive and orderly debate, the underlying values of freedom of expression – namely, the enhancement of democracy and the pursuit of truth through the exchange of ideas – cannot be fulfilled. As such, freedom of speech within the House could be argued to fall outside of the sphere of conduct protected by freedom of expression and any resulting limitations would be justifiable.
The underlying values of freedom of expression, in particular those related to the pursuit of truth and the enhancement of democratic decision-making, parallel the underlying values of democracy embodied in the House of Commons and other legislatures. These spaces are a forum where elected representatives come together to consider issues affecting their constituents and to create laws that will bind them.
Despite these shared values, freedom of expression has a limited presence within the House of Commons. This is because a fully realized Charter guarantee would actually hamper the proper functioning of the House. If Members of Parliament were able to express themselves freely and without limitations, then debate would be neither productive nor orderly and it is likely that some Members would have no opportunity to speak at all. As such, the House of Commons is not a space where blanket freedom of expression should be permitted. Instead, a narrower form of this individual guarantee – freedom of speech – that is subject to and limited by the parliamentary privilege of the legislature to control its internal proceedings has been put in place to ensure that when Members are permitted to speak they may do so freely and without the fear of legal consequences. While freedom of speech may seem at first glance to be overly restrictive in comparison with the guarantee to freedom of expression that exists outside of the House of Commons, its existence and exercise is, in fact, necessary to its proper and functioning.
1 Robert J. Sharpe & Kent Roach, The Charter of Rights and Freedoms, 4th ed (Toronto, ON: Irwin Law, 2009), 150.
2 R. v. Keegstra,  3 SCR 697 at 802, 117 NR 1.
3 JP Joseph Maingot, Parliamentary Privilege in Canada, 2nd ed (Canada: House of Commons and McGill-Queen’s University Press, 1997), 14.
4 Irwin Toy Ltd. v. Quebec (Attorney General),  1 SCR 927 at 968, 94 NR 167.
5 Irwin Toy, para. 969.
6 Irwin Toy, para. 974.
7 R. v Butler,  1 SCR 452 at 500, 134 NR 81.
8 Rocket v. Royal College of Dental Surgeons,  2 SCR 232 at 247, 73 OR (2d) 128.
9 Montréal (City) v. 2952-1366 Québec Inc., 2005 SCC 62 at 62,  3 SCR 141, emphasis added.
10 Lyn H. Lofland, The Public Realm: Exploring the City’s Quintessential Social Territory (Piscataway, NJ: AldineTransaction, 2009), 210.
11 Montréal (City), para. 64.
12 Montréal (City), para. 74.
13 Montréal (City), para. 76.
14 For a more detailed analysis of how parliamentary procedures limit deliberation in the House of Commons, see Jennifer Dumoulin, Canada’s House of Commons and the Perversion of the Public Sphere (Communication, University of Ottawa, 2011) Chapter 3, online: uO Research http://www.ruor.uottawa.ca.
15 See e.g. Michael Chong et al., “What to do about Question Period: A Roundtable”, Canadian Parliamentary Review, 33, no.3, (2010), 3.
16 New Brunswick Broadcasting, para. 374-375, 383.
17 New Brunswick Broadcasting, para. 384-385.
18 Jack Stilborn, The Roles of the Member of Parliament in Canada: Are They Changing (Ottawa, ON: Library of Parliament, 2002), 6-7.
19 See e.g. Michael Chong, “Rethinking Question Period and Debate in the House of Commons of Canada”, Canadian Parliamentary Review, 31, no.3 (2008), 6. See also Pierette Venne, “Parliament and Democracy in the 21st Century: The Role of MPs”, Canadian Parliamentary Review, 20, no.3 (2003), 2.
20 Jeremy Waldron, “Principles of Legislation”, In R. W. Bauman & T. Kahana (Eds.), The Least Examined Branch: The Role of Legislatures in the Constitutional State (pp. 15-32) (West Nyack, NY: Cambridge University Press, 2006) 15.
21 See Jeremy Waldron, Law and Disagreement (Oxford: Oxford University Press, 2001), 72. See also Archon Fung, “Survey article: Recipes for the public spheres: Eight institutional design choices and their consequences”, Journal of Political Philosophy, 11, no.3 (2003), 344.
22 Chris Charlton, Chris. (1997). “Obstruction in Ontario and the House of Commons”, Canadian Parliamentary Review, 34, no.2 (1997), 21.
23 RJR MacDonald, para 162.
24 RJR MacDonald, para 164.