Inside and Outside of the House: The Relationship Between Freedom of Expression, Freedom of Speech and Parliamentary Privilege
Further to my previous blog post about digging through some of my old term papers from law school and my master’s degree, I’ve not only revised and updated one of my papers (and submitted it to a journal!) but I’ve also published the original draft on my website. The original version of the paper is titled “Inside and Outside of the House: The Relationship Between Freedom of Expression, Freedom of Speech and Parliamentary Privilege” - and you can find a sneak peek below!
introduction
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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 government actions.[1] In this sense, 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. The Canadian Charter of Rights and Freedoms [hereafter the Charter] permits limits on freedom of expression if they are reasonable and justifiable in a free and democratic society.[3]
While it is possible to debate whether any limits to such a fundamental freedom are justifiable, and indeed the courts have done so many times, it is nevertheless commonly accepted that this is the case. Interestingly, freedom of expression is limited not only within society as a whole, but also within its governing democratic institutions. At first glance, such limitations appear counterintuitive. How can elected representatives properly deliberate and create laws if they do not have the ability to speak freely while doing so?
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The purpose of this paper is to explore this inconsistency in the law surrounding freedom of expression. Section I of this paper reviews the existing jurisprudence on freedom of expression as guaranteed by Section 2(b) of the Charter and lays out the analytical framework found in Irwin Toy Ltd. v Quebec (Attorney General) [hereafter Irwin Toy][4] and Montréal (City) v 2952-1366 Québec Inc. [hereafter Montréal (City)].[5] Section II then considers the scope of freedom of expression guaranteed within the House of Commons using the lens of parliamentary privilege. Lastly, Section III applies the tests from Irwin Toy and Montréal (City) to determine whether the limits imposed on freedom of expression within the House of Commons are consistent with the Charter guarantee under Section 2(b).
[1] Robert J Sharpe & Kent Roach, The Charter of Rights and Freedoms, 4th ed (Toronto: Irwin Law, 2009) at 150.
[2] R v Keegstra, [1990] 3 SCR 697 at 802, 114 AR 81, McLachlin J [Keegstra]. Two additional rationales for freedom of expression were identified by the Supreme Court: the pursuit search for truth through the marketplace of ideas and the realization of autonomy [Ibid at 803-05].
[3] s 1, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [the Charter].
[4] [1989] 1 SCR 927, 94 NR 167.
[5] 2005 SCC 62, [2005] 3 SCR 141.