Broadcasting debates and proceedings (House of Commons and parliamentary committees)
File no. A-399-02
FEDERAL COURT OF APPEAL
BETWEEN:
CANADA (HOUSE OF COMMONS)
CANADA (BOARD OF INTERNAL ECONOMY)
Appelants
AND:
LOUIS QUIGLEY
Respondent
AND:
THE COMMISSIONER OF OFFICIAL
LANGUAGES FOR CANADA
Intervener
MEMORANDUM OF FACT AND LAW OF THE INTERVENER
THE COMMISSIONER OF OFFICIAL LANGUAGES FOR CANADA
Laura C. Snowball
Office of the Commissioner of Official Languages
344 Slater Street, 3rd Floor
Ottawa, Ontario. K1A 0T8
Telephone (613) 995-4130
Fax (613) 996-9671
Counsel for the Intervener
| Joel E. Fichaud, Q.C. Counsel for the Appellants | J. Kevin Quigley
|
TABLE OF CONTENTS
Introduction
The House of Commons and the Canadian Parliamentary Affairs Channel
Investigation and Report by the Commissioner of Official Languages for Canada
Official Languages, CPAC and Broadcast Licensing Regulation by the CRTC
Before the Federal Court Trial Division
PART III - THE COMMISSIONER'S ARGUMENT
First Issue on Appeal: the "Parliamentary Privilege" Debate
Introduction
First Argument: As originally developed in the United Kingdom, the parliamentary privilege of control of publication of debates and proceedings has never encompassed the language of such publication
Second Argument: In Canada, the inherent parliamentary privilege of control of publication is limited by the express guarantee of language rights by section 133 of the Constitution Act, 1867 and by the reiteration of that guarantee by section 18 of the Canadian Charter of Rights and Freedoms
Third Argument: In 1988, sections 3 and 4 of the Official Languages Act amended the Canadian inherent privilege of control of publication to exclude the two official languages from that privilege
Judicial Review of Parliamentary Privilege
Second Issue on Appeal: Application of OLA Section 25 to the House-CPAC Relationship
Third Issue on Appeal: The Trial Judge's Authority to Order the House to Comply with its OLA Obligations Notwithstanding the CRTC's Authority to place "Official Languages" Obligations on Cable Companies as a Licensing Condition
Practical Effect of the New CRTC Regulations
Jurisdiction of the Trial Court to Order Compliance with the OLA
Conclusion
PART I - FACTS
Introduction
1. The subject matter of this appeal arises out of an investigation conducted by the Commissioner of Official Languages for Canada (the Commissioner) in response to certain complaints made to the Commissioner pursuant to section 58 of the Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.) (the "OLA"). Subsequent to the Commissioner's October 2000 Enhanced Investigation Report: Investigation Report Concerning the Broadcasts and Availability of the Proceedings of the House of Commons in Both Official Languages (the "Investigation Report"), the Complainant/Respondent Mr. Louis Quigley applied to the Federal Court Trial Division pursuant to s. 77 of the OLA for a court remedy pertaining to the Commissioner's recommendations in the Investigation Report.
The House of Commons and the Canadian Parliamentary Affairs Channel
2. In 1977, the House of Commons (the "House") had approved the radio and television broadcasting of debates and proceedings on the floor of the House and in parliamentary committees, on the basis of principles similar to those governing the publication of Hansard.
Reasons of O'Keefe J. (the "Trial Judge") at para. 2 ("Reasons") at Appeal Book ("A.B.") Tab 3
3. From 1979 to 1991, the debates and proceedings of the House were broadcast by the English- and French-language Canadian Broadcasting Corporation (the "CBC") in both official languages via two parliamentary channels established for that purpose. The arrangement ended when the CBC was no longer able to fund these channels.
Reasons at para. 3;
Quigley Affidavit, A.B. Tab 7, p. 128 (Investigation Report at p. 4)
4. In 1992, the Board of Internal Economy of the House approved a proposal whereby the Canadian Parliamentary Affairs Channel ("CPAC") would assume the cost of broadcasting House debates and proceedings for a two-year period. The first formal agreement between the House and CPAC took place in 1994 for the period September 1, 1994 to August 31, 2001.
Quigley Affidavit, A.B. Tab 7 at pp. 127-128 (Investigation Report at pp. 3-4).
5. CPAC is a non-profit corporation - funded by a consortium of Canadian cable companies - that broadcasts the debates and proceedings of the House, the proceedings of certain parliamentary committees and other public affairs programming.
Reasons at para. 5;
Quigley Affidavit, A.B. Tab 7, p. 128 (Investigation Report at p. 4)
6. The 1994 agreement between the House and CPAC specifies:
- the House produces and delivers its debates and proceedings and certain committee proceedings in both official languages to CPAC;
- the House will deliver one live television (video) signal and three audio programming signals (English, French and floor sound) to CPAC; and
- CPAC will transmit these four signals to all cable television distribution undertakings throughout Canada (collectively, the "cable companies").
Reasons at para. 4;
Quigley Affidavit, A.B. Tab 7, pp. 128-129 (Investigation Report at pp. 4-5)
7. The cable companies - none is party to the House-CPAC agreement - are the final link in the chain delivering the televised House debates and proceedings to individual cable subscribers. Each cable company receives one video and three audio signals from CPAC. In turn, each cable company is entitled to choose whether to deliver CPAC to its subscribers, and which audio signal or signals to deliver with the video signal.
Reasons at para. 6;
Quigley Affidavit, A.B. Tab 7, pp. 129-130 (Investigation Report at pp. 5-6)
8. At the time of the Commissioner's investigation (and as at the December 5, 2002 hearing before the Trial Judge), because of certain current technological limitations, and demands from subscribers for increased channel capacity, the vast majority of cable companies were delivering only two of the three audio feeds to their subscribers, but certain cable companies were delivering floor sound only. Thus, unilingual viewers receiving only the floor sound, or receiving only the floor sound and the other official language feed, were unable to understand a significant part of the House debates and proceedings as broadcast.
Quigley Affidavit, A.B. Tab 7, p. 129-130 (Investigation Report at pp. 5-6)
Investigation and Report by the Commissioner of Official Languages for Canada
9. The Commissioner is authorised to investigate any complaint made against a federal institution alleging that institution's failure to comply with the terms, and spirit and intent, of the OLA.
OLA, subsections 56(1) and 58(1)
10. On May 11, 1999 the Respondent Mr. Louis Quigley formally complained to the Commissioner that the House had failed to ensure that televised broadcasts of the proceedings of the House were provided in both official languages. From September 1998 onwards, Mr. Quigley had received only the floor sound (the language being spoken) of House debates from his local cable company, without simultaneous translation. In the result, unilingual listeners, whether Anglophone or Francophone, would be unable to follow large portions of the debates and proceedings. This shortfall would include broadcasts of Question Period debate.
Reasons at para. 9;
Quigley Affidavit, A.B. Tab 7 paras. 2, 4 and 6;
Quigley Affidavit, A.B. Tab 7, p. 125 (Investigation Report at p.1)
11. In a two-year period from late 1998 onwards, the Commissioner had received six complaints from Canadians that the CPAC broadcasts of House debates and proceedings were not delivered to them in the official language of their choice. All six complaints were investigated by the Office of the Commissioner at the same time.
Quigley Affidavit, A.B. Tab 7, p. 125 (Investigation Report at p. 1)
12. The Commissioner's investigation included a consideration of the linguistic obligations resulting from the operation of Parts I and IV (subsection 4(3); sections 22 and 25) and the spirit and intent of the OLA.
Quigley Affidavit, A.B. Tab 7, pp. 125-126 (Investigation Report at pp. 1-2)
13. The Commissioner's June 2000 preliminary report was provided to the House (amongst others) for comment. The House's Board of Internal Economy replied without mentioning parliamentary privilege. The reply commented inter alia that:
- the House was fulfilling its OLA obligations by providing English, French and floor sound audio signals to all cable companies via CPAC; and
- the difficulties experienced by individual complainants were related to the cable companies' choices about which audio feeds they would deliver to their customers.
Reasons at para. 10
Quigley Affidavit, A.B. Tab 7, pp. 133-34 (Investigation Report at pp. 9-10)
14. With respect to the application of Part I of the OLA, the Investigation Report concluded:
- section 4 of the OLA must be interpreted and applied in light of the spirit of the Act as a whole and must follow the principles enunciated by the Supreme Court of Canada in the Beaulac decision, namely that such interpretation must respect the purpose of the language right at issue, the principle of equality of status and privileges of English and French, and the preservation and development of the official language communities;
R. v. Beaulac, [1999] 1 S.C.R. 768 per Bastarache J at para. 24
- whatever the method chosen by the House for dissemination of its debates and proceedings, the House must respect the principle of equal access to parliamentary debates and proceedings and the requirement of bilingualism that flows from the equal access principle;
- although the House system for the production of its debates for broadcast met the requirements of the OLA, the House had failed to ensure that the broadcasting and delivery system also met those requirements;
- in order to meet the requirements of the OLA, the House should have taken steps to ensure that the ultimate delivery of the video and audio signals met the official language needs of all members of the Canadian public;
- the House cannot evade its official languages obligations by entering into a contract (in this case between itself and CPAC) which separates the production and initial broadcast of House debates and proceedings from the ultimate delivery of broadcast signals to the public, and which does not address that ultimate delivery; and
- the House "[was] not fully complying with its linguistic obligations as set out in Part I of the OLA or with the spirit of the OLA as regards the televising of its debates."
Reasons at para. 11;
Quigley Affidavit, A.B. Tab 7, pp. 130-133 (Investigation Report at pp. 6-9)
15. With respect to the application of Part IV of the OLA, the Investigation Report concluded:
- the televising or audio-visual publication of parliamentary debates is a service provided to the public within the meaning of Part IV of the OLA;
- the decision of the House to proceed with televised rebroadcasting of its debates subjected the House to the linguistic obligations set out in section 22 of the OLA;
- the agreement between the House and CPAC, and the facts in general, showed that CPAC was acting on behalf of the House within the meaning of section 25 of the OLA;
- the House was therefore required to ensure that CPAC took the measures necessary to guarantee effective delivery of the services in question, i.e., televised debates and proceedings, to members of the public in their preferred official language; and
- the House had not ensured that its debates would be delivered in both official languages to all cable subscribers in Canada, thereby contravening sections 22 and 25 of the OLA, and the sprit of the OLA.
Reasons at para. 12;
Quigley Affidavit, A.B. Tab 7, pp. 133-134 (Investigation Report at pp. 9-10)
16. The Investigation Report formally recommended that:
- the House immediately take, with all interested parties, all the measures and steps required to ensure the implementation of the right of members of the public to access televised debates in their preferred official language, pending the advent of more effective technologies; and
- the House take into account its linguistic obligations under Part I and Part IV of the Official Languages Act when it renewed or concluded a new agreement with a third party to ensure that the third party takes all the measures required to ensure that parliamentary debates are ultimately televised in both official languages, so as to guarantee the effective implementation of the right of members of the public to access these debates in their preferred official language.
Reasons at para. 13;
Quigley Affidavit, A.B. Tab 7, pp. 139-140 (Investigation Report at pp. 15-16)
Official Languages, CPAC and Broadcast Licensing Regulation by the CRTC
17. On April 27, 2001 the CRTC issued a Call for Comments pertaining possible changes to the rules applying to cable distributers and their obligation to carry CPAC. The Call for Comments included the following question: "Should carriage of [CPAC] in the official language of the minority of any given community also be a regulatory requirement?"
Bard Affidavit (Supplementary), A.B. Tab 9 at para. 4 and Annexe B, para. 17
18. The resulting CRTC hearings included discussion of the use of an auxiliary audio channel known as "SAP" ("second audio programming") to deliver an alternative audio feed to cable subscribers. The evidence before the CRTC was that approximately 50% of Canadian homes have equipment capable of receiving SAP channels.
Bard Affidavit (Supplementary), Annexe B, para. 16
19. On November 6, 2001 the CRTC announced that the CRTC Regulations would be amended in September 2002 to require large- and medium-sized cable distributers (Classes 1 and 2) to deliver both English and French language CPAC audio signals through the use of primary and auxiliary audio channels (i.e., "SAP technology").
Public Notice CRTC 2001-115, Exhibit "C" to Plummer Affidavit, A.B. Tab 11
20. In the year 2000, Class 3 cable distributers served 7% of Canadian cable subscribers and unaffiliated Class 2 cable distributers served 1.5 % of Canadian cable subscribers, leaving approximately 91.5% of Canadian cable subscribers served by Class 1 cable distributers. In general, Class 3 distributers serve small rural communities of less than 2000 subscribers.
Public Notice CRTC 2001-59, Exhibit "B" to Plummer Affidavit (A.B. Tab 11 at pp. 237-38)
21. The CRTC Regulations were amended accordingly on August 27, 2002, such amendments coming-into-force September 1, 2002.
SOR/02-322 (Canada Gazette Part II, September 11, 2002)
Before the Federal Court Trial Division
22. At trial, and on appeal to this Court, the House argues that the Trial Judge did not have the jurisdiction to apply the OLA to the House with respect to the language of publication of its debates and proceedings, including publication by televised broadcast, because the House has the inherent constitutional parliamentary privilege of control of publication of debates and proceedings in the House (the "inherent privilege of control of publication").
Reasons at paras. 28-30;
Appellants' Memorandum filed September 12, 2002 at para. 35
23. The House and the Board of Internal Economy did not raise the inherent privilege of control of publication as a bar to the operation of the OLA in respect of the televised broadcast of House debates and proceedings until the April 27, 2001 filing of their responding Memorandum of Fact and Law in the Court below.
See: Quigley Affidavit, A.B. Tab 7, pp. 133-34 (Investigation Report at pp. 9-10)
24. The matter was heard by the Trial Division on December 5, 2001; the Order and Reasons for Order were issued on June 5, 2002. On the merits of the dispute, the Trial Judge ordered:
- A declaration will issue that the current method of the respondents Canada (House of Commons) and Canada (Board of Internal Economy) for providing television broadcasts of parliamentary proceedings contravenes section 25 of the Act.
- The above named respondents shall, within one year of the date of this decision, take the necessary steps to bring its practices into compliance with section 25 of the Act.
Reasons at para. 60
25. The Trial Judge found, inter alia:
- there was no doubt the House and its Members enjoy certain parliamentary privileges, amongst them a privilege with respect to the control of publication of debates and proceedings in the House (Reasons at paras. 41 and 43);
- the privilege of the House with respect to the publication of its debates was not at issue in this case, since the House had deliberately decided to publish its proceedings by making those broadcast signals available to CPAC (Reasons at paras. 47 and 49);
- the arrangements between the House and CPAC are subject to section 25 of the OLA because CPAC provides services for the House since CPAC is the vehicle chosen by the House to provide its debates and proceedings to the public (Reasons at paras. 53 and 54);
- the House would not have been in breach of section 25 of the OLA had the contract between the House and CPAC had included CPAC's agreement that its agreements with the cable companies would include the cable companies' obligation to broadcast CPAC in both official languages (Reasons at paras. 55, 56 and 58); and
- There was no evidence before the Court that the cable companies would refuse to broadcast CPAC if obliged by contract to broadcast in both official languages (Reasons at para. 57).
26. Although the Trial Judge ordered that the House and the Board of Internal Economy to take the steps necessary to meet the requirements of section 25 of the OLA, he chose not to specify the exact steps to be taken because of "the complexity of the matter".
Reasons at para. 59
PART II - MATTERS IN ISSUE
27. Whether the Trial Judge erred in concluding that, in Canada, the inherent parliamentary privilege of control of publication of debates and proceedings does not encompass decisions pertaining to the language of publication by televised broadcast, and in particular, pertaining to publication in both of Canada's official languages.
28. Whether the Trial Judge erred in concluding that the House was in breach of section 25 of the OLA for having failed to take steps to ensure that delivery of the televised broadcasts of its debates and proceedings was in both of Canada's official languages.
29. Whether the Trial Judge erred in ordering the House to take the steps necessary steps to fulfill the requirements of section 25 of the OLA.
PART III - THE COMMISSIONER'S ARGUMENT
30. The Commissioner does not contest the assertion of the House that it "wishes the widest broadcast to all Canadians of House proceedings in English and French." That said however, the issue before the Trial Judge was whether the House had taken the steps necessary to ensure its compliance with its quasi-constitutional official languages obligations pursuant to the OLA.
See: Appellants' Memorandum at paras. 35 and 87
First Issue on Appeal:
The "Parliamentary Privilege" Debate
Introduction
31. The House argues that the inherent privilege of control of publication protects its decisions about the language of televised broadcast publication of debates and proceedings from scrutiny by the Federal Court pursuant to the OLA.
32. The Commissioner does not dispute the existence of the inherent (and therefore constitutional) privilege of the House to control the publication of debates and proceedings in the House. The issue, however, is whether the language of publication is part of that inherent privilege. This is the point at which the House and the Commissioner diverge.
33. The Trial Judge concluded that the House had made its "privileged" decision, namely whether to publish the debates and proceedings by way of televised broadcast and what portion of those debates and proceedings. But having determined to do so, the House could not then claim privilege with respect to its decisions about the language of such publication.
Reasons at paras. 47-49;
Cf.: Stockdale v. Hansard, (1839), 9 Ad. & E. 1, 112 E.R. 1112 (parliamentary privilege of freedom of speech in the legislature does not apply once published for general circulation)
34. It is submitted that there are three alternative arguments which support the Trial Judge's conclusion that the inherent privilege of control of publication claimed by the House does not include exclusive authority over the language of publication, as follows:
- first, that the parliamentary privilege of control of publication as developed in the United Kingdom and recognised by the preamble to the Constitution Act, 1867 never included the language of publication;
- second, and in the alternative, that even if the United Kingdom privilege of control of publication included the language of publication, this is not so in Canada because the explicit guarantee of language rights by section 133 of the Constitution Act, 1867 excludes the language of publication from that privilege; and
- third, in the further alternative, that even if section 133 does not limit the Canadian privilege of control of publication, such privilege of control of publication was amended pursuant to the section 44 constitutional amendment formula, by sections 3 and 4 of the 1988 Official Languages Act, so that the two official languages are now excluded from the Canadian privilege of control of publication.
35. The House argues that, as applied to the facts of this dispute, the court-developed "necessity test" demonstrates that the House's decision whether to publish its debates and proceedings in both official languages and which Canadians may have access to those debates and proceedings in both official languages is part of the inherent privilege of control of publication. The "necessity" concept will be introduced briefly in this section (at para. 44) in relation to the Constitution Act, 1867. The application of the "necessity test" to the case at hand will be discussed more fully below under the heading "Judicial Review of Parliamentary Privilege" (at paras. 58-64).
First Argument:
As originally developed in the United Kingdom, the parliamentary privilege of control of publication of debates and proceedings has never encompassed the language of such publication.
36. Parliamentary privilege in the United Kingdom is essentially a matter of common law, arising from a history of protracted struggle and conflict between Parliament and the Crown. Certain of those privileges, for example, the power to imprison for contempt, reflect the medieval origins of the British parliament as a high court of justice.
New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319 at 378-381 per McLachlin J. ("New Brunswick Broadcasting")
See also: J.P. Maingot, Parliamentary Privilege in Canada, 2ed. (1997) at p.16
37. The parliamentary privilege of control of publication is closely related to the privilege of control of parliamentary proceedings - more specifically, the power to exclude "strangers". The principal purpose of the power to exclude strangers is to maintain order in the legislative chamber. The power to exclude strangers also allows the House to prevent the publication of "false and perverted" reports of debates and proceedings.
Erskine May's Treatise on the Law, Privileges, Proceedings and Usage of Parliament (22nd ed. 1997) at pp. 84-85.
38. It does not follow, however, that this close relationship between the privilege to exclude strangers (effectively, controlling physical access to the legislative chamber) and the privilege of control of publication of debates and proceedings means that the publication privilege is - as the House argues - a right to control access to published debates and proceedings.
39. Indeed, it is submitted that the rationale for the privilege of control of publication is the prevention of false and perverted reports.
40. It follows that the privilege of control of publication should include the right to determine whether to publish, whether to publish in part or in whole and by whom, so as to ensure a fair and accurate rendition of what is said on the floor of the legislature.
41. However, it is submitted that the language of publication is irrelevant to fair and accurate publication of what is said on the floor of the legislature. In other words, whether in English, or in French, the substance of what has been said, the context in which it has been said and how much of it is reported, are no different.
42. Therefore, it is submitted that the language of publication of parliamentary debates and proceedings is not traditionally part of the parliamentary privilege of control of publication.
Second Argument:
In Canada, the inherent parliamentary privilege of control of publication is limited by the express guarantee of language rights by section 133 of the Constitution Act, 1867 and by the reiteration of that guarantee by section 18 of the Canadian Charter of Rights and Freedoms.
43. In the alternative, it is submitted that the Canadian inherent privilege of control of publication does not include the language of publication or broadcast of parliamentary debates and proceedings. In short, in Canada, the inherent parliamentary privilege of control of publication is limited by the express guarantee of language rights by section 133 of the Constitution Act, 1867, and by the reiteration of that guarantee by section 18 of the Canadian Charter of Rights and Freedoms (the "Charter").
44. Canada's colonial legislatures were created by ordinary legislation of the British Parliament and, by virtue of that creation, were deemed to enjoy those parliamentary privileges that were absolutely necessary to their functioning. These necessary privileges are therefore "inherent" privileges.
New Brunswick Broadcasting at 379 to 380 per McLachlin J. citing, inter alia, R. MacGregor Dawson, The Government of Canada, 5th ed. (1970) at pp. 337-38.
45. At Confederation, those inherent privileges were recognised by the preamble to the Constitution Act, 1867 - also an ordinary Act of the British Parliament - so that in the result, those inherent privileges enjoy constitutional status.
New Brunswick Broadcasting, at 368 per McLachlin J.
46. It is submitted, however, that the constitutional status of the parliamentary language rights guaranteed by section 133 of the Constitution Act, 1867 and section 18 of the Charter is equal to that of the inherent parliamentary privileges.
47. The House argues - and the Commissioner agrees - that no part of the Constitution may abrogate or diminish any other part of the Constitution. It is submitted, however, that potentially conflicting constitutional provisions must be read together and reconciled so that each may have the fullest meaning possible.
New Brunswick Broadcasting, at 373 and 390 per McLachlin J.
Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876 at 917 per McLachlin J. ("Harvey")
See also: Reference re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148
48. The Supreme Court of Canada engaged in a "reading together and reconciliation" process involving inherent parliamentary privileges in New Brunswick Broadcasting (apparent conflict between freedom of expression and the inherent parliamentary privilege to exclude persons from the legislature) and in Harvey (apparent conflict between democratic participation rights and the inherent parliamentary privilege to exclude persons from the legislature).
49. The general rule that results from the Supreme Court's analysis in New Brunswick Broadcasting and Harvey is that the text of the Constitution must read consistently with inherent parliamentary privilege. Express wording may, however, overthrow a presumption in favour of an inherent parliamentary privilege:
As becomes evident, the reconciliation process referenced by McLachlin J. [in Harvey] involves reading the Charter as being consistent with parliamentary privilege, not the other way around as submitted by the appellant. The Charter recognizes Parliamentary privilege, it does not override it. In applying this reconciliation process to the case before her, McLachlin J. referred to s. 3 of the Charter which guarantees every Citizen of Canada the right to vote in an election of members of the House of Commons or of a legislative assembly, and stated at p. 171:
... The purpose of the democratic guarantees in the Charter must be taken to be the preservation of democratic values inherent in the existing Canadian Constitution, including the fundamental constitutional right of Parliament and the legislatures to regulate their own proceedings. Express words would be required to overthrow such an important constitutional principle as parliamentary privilege. ... [Emphasis added.]
Speaker of the Legislative Assembly of Ontario v. Ontario Human Rights Commission and Freitag, (2001) 54 O.R. (3d) 595 (Ont. C.A.) at para. 32 ("Ontario v. OHRC")
50. Section 133 of the Constitution Act, 1867 specifies the languages (English and French) that must be used in records of debates and proceedings. It is submitted that these are the "express words" that would overthrow the presumption that in Canada the inherent privilege of control of publication of debates and proceedings includes the language of publication, if such express words are required in this case.
51. It is submitted that the priority given to the language rights of Canadians in relation to parliamentary publications by section 133 of the Constitution Act, 1867 is confirmed by its reiteration in 1982 by section 18 of the Charter.
52. Therefore, whether by virtue of the reconciliation process on its own, or by virtue of the reconciliation process and the express wording of sections 133 and 18, the inherent privilege of control of publication on which the House relies in the instant proceedings does not include the language in which parliamentary debates and proceedings are published.
Third Argument:
In 1988, sections 3 and 4 of the Official Languages Act amended the Canadian inherent privilege of control of publication to exclude the two official languages from that privilege.
53. In the further alternative, even if the Canadian inherent privilege of control of publication originally included the language of publication of parliamentary debates and proceedings, it is submitted that that constitutional privilege was amended by the enactment of sections 3 and 4 of the Official Languages Act in 1988, thereby excluding the two official languages from that privilege.
54. Parliament may unilaterally amend the Constitution of Canada as it relates to the Senate and House by simple enactment of a law or laws to that effect.
Section 44 of the Constitution Act, 1982
55. The OLA explicitly applies to Parliament, and the "federal institutions" to which the OLA applies are defined to include the Senate and the House.
OLA, Part I ("Proceedings of Parliament"), and subsection 3(1) respectively
56. Therefore, to the extent that the inherent privilege of control of publication recognised by the preamble to the Constitution Act, 1867 originally included the language of publication (which is not conceded and in fact denied), that aspect of the inherent privilege of control of publication was relinquished by the Parliament of Canada by virtue of the 1988 enactment of the OLA.
57. Moreover, since section 90 of the OLA expressly preserves parliamentary privilege with respect to the personal offices and staff of its Members and Senators, this is confirmation that the 1988 OLA amended the Constitution with respect to the law of parliamentary privilege. Henceforth, except for those parliamentary privileges related to the offices and personal staff of Senators and Members, the Senate and the House would be subject to the OLA's linguistic obligations, specifically those contemplated by Part I ("Proceedings of Parliament") and Part IV ("Communications with and Services to the Public").
OLA, section 90
Judicial Review of Parliamentary Privilege
58. Where someone complains to our courts that an action by a federal or provincial legislature or one of their Members contravenes the law of the land, the legislature or Member may try to argue that the particular action complained of falls within an inherent (and therefore constitutional) parliamentary privilege and therefore is immune from review by our courts.
59. In Canada, the test for determining whether a general privilege claimed by or on behalf of a legislature counts amongst that legislature's inherent parliamentary privileges is one of demonstrated "necessity":
... an Assembly has the right of protecting itself from all impediments to the due course of its proceeding. To the full extent of every measure which it may be really necessary to adopt, to secure the free exercise of their Legislative functions, they are justified in acting by the principle of the Common Law.
Keilley v. Carson (1842), 4 Moore 3 61, 13 E.R. 225 at pp.234-35, cited by McLachlin J in New Brunswick Broadcasting at 381-82 (emphasis added)
60. Thus, faced with a claim of inherent parliamentary privilege, our courts are limited to questions of jurisdiction. A court may determine the existence of a claimed inherent parliamentary privilege, and may determine whether the particular act complained of falls within that "category" of inherent parliamentary privilege, but the court may not review the manner of exercise of a recognised inherent parliamentary privilege:
... while it is true to say in the abstract that parliamentary privilege covers those matters which are necessary to the functioning of the House, "necessity" in this context applies to categories of matters, and each particular exercise of privilege is not scrutinized against a standard of necessity. As noted by McLachlin J. [in New Brunswick Broadcasting], once a court has decided that a category of matters is necessary to the independent functioning of the House, it does not then go on to decide whether each individual exercise of privilege is necessary, but, rather, only has to ask whether the particular exercise in question falls within the recognised category of privilege. If it does, it is not subject to outside review.
Ontario v. OHRC at para. 25 [emphasis added]
See also: New Brunswick Broadcasting per McLachlin J. at pp. 384-85
61. The Commissioner agrees that the inherent and therefore constitutional privileges of Canadian legislatures are determined by applying the "necessity test", i.e., whether the activity in question is necessarily incidental to the proper functioning of that legislature.
62. The "necessity test" is the means by which the Supreme Court of Canada has identified four traditional inherent parliamentary privileges transmitted via the Constitution Act, 1867, namely: freedom of speech in debate; exclusive control over parliamentary proceedings; the right to exclude strangers; and control over publication of debates and proceedings.
New Brunswick Broadcasting per McLachlin J. at p. 385
63. However, the essence of the argument presented by the House is that publication by televised broadcast is necessary to the functioning of our democratic system; therefore the "necessity test" for identifying inherent parliamentary privilege has been met; and therefore publication by televised broadcast is an inherent privilege and controlling the language of that televised broadcast is also an inherent privilege.
64. It is indeed true - as the House notes - that the Commissioner has argued that the delivery of the House debates and proceedings to all Canadians in the official language of their choice is necessary to a healthy democracy. However, the necessity test which applies to the identification of the four traditional inherent parliamentary privileges is directed to the preservation of the order and decorum of the legislature; the necessity test does not encompass every activity that might enhance the democratic process.
65. In fact, parliamentary privilege may be exercised to prevent the publication and delivery of its debates and proceedings to the public: in New Brunswick Broadcasting case, the Supreme Court of Canada confirmed that a legislature may bar television cameras from the gallery of the legislative chamber (an exercise of its inherent privilege to exclude strangers) so that there will be no televised broadcast publication of the debates and proceedings.
See also: Erskine May (22nd ed., 1997) at pp. 84-85 ("... there is no doubt that if either House desired to withhold its proceedings from the public, it would be within its power to do so, and to punish any violation of its orders ...")
Second Issue on Appeal:
Application of OLA Section 25 to the House-CPAC Relationship
66. The Trial Judge found that section 25 of the OLA applied in the instant case:
I am of the view that the arrangements between the Speaker of the House and CPAC are caught by section 25 of the Act. The House delivers its signals to CPAC who, in turn, provides these signals to the BDU's for distribution to the public. It is because the services are being provided by CPAC for the Speaker of the House that section 25 applies.
Reasons at para. 54
67. It is submitted that - as the House argues elsewhere in its written submissions - the service delivery chain that runs from the House of Commons to CPAC to the cable companies to the public should not be severed for the purpose of determining the public law rights and obligations of either the federal institution in question or members of the Canadian public.
Appellants' Memorandum at paras. 57-59, 67 and 70
68. If that service delivery chain were severable for the purpose of identifying a federal institution's official languages obligations under section 25 of the OLA, then any federal institution could evade those obligations simply by ensuring that the individual or institution acting on its behalf in the delivery of services engages another third party to perform the final step in the delivery chain.
69. That said, the issue is not whether Rogers Cable is acting on behalf of the House in the delivery of services. The issue is the nature and extent of the House official languages obligations when a third party acts on its behalf. More particularly, the relevant questions are first, whether CPAC is acting on behalf of the House, and second, what obligations section 25 places on the House when it engages CPAC to deliver services on its behalf.
70. The House argues in the alternative that the cable companies would refuse to deliver any CPAC signals if the House insisted (by contract) that they deliver both official language audio signals. The House argues therefore that CRTC regulation is the only means to oblige cable companies to deliver both official language audio tracks to subscribers. The House concludes that it should not be ordered to comply with section25 of the OLA.
Appellants' Memorandum at paras. 12, 22, 35(3), 65-66 and 90
71. To the contrary, however, the Trial Judge found that CRTC regulation was not the only means "available" to the House to ensure compliance with section 25 of the OLA: explicitly, the House would have met its OLA obligations with respect to the broadcast publication of its debates and proceedings had it obliged CPAC (by contract) to ensure that the cable companies delivered both audio signals. Moreover, there was no evidence before the Trial Judge that the cable companies would refuse to deliver the CPAC signals if they were obliged by contract to deliver both English and French language audio signals.
Reasons at paras. 56 and 57
72. Indeed, it is submitted that as the exclusive source of such broadcast signals, the House is particularly well-placed to set contractual pre-conditions on its delivery of broadcast signals to CPAC, and on CPAC's dealings with the cable companies.
73. The Commissioner agrees that section 25's "communication with the public" obligations mean that the House must take steps to ensure that CPAC (acting on behalf of the House) takes steps to ensure that the public can communicate with the service provider about the CPAC signals in the official language of their choice. That said, the issue of what that communication right entails - for example, a cable company employee fluent in the relevant minority language, the active offer of toll-free enquires number or automatic transfer to a centralised minority language call-centre - is not in issue in this appeal.
Cf.: Appellants' Memorandum at para. 80
74. Equally, however, the question whether a private bookstore that sells copies of Hansard is "acting on behalf" of the House - raised by the House in its written argument - is not in issue in this appeal.
Cf.: Appellants' Memorandum at para. 81
Third Issue on Appeal:
The Trial Judge's Authority to Order the House to Comply with its OLA Obligations Notwithstanding the CRTC's Authority to place "Official Languages" Obligations on Cable Companies as a Licensing Condition
75. Having found both the House of Commons and its Board of Internal Economy in breach of section 25 of the OLA with respect to the delivery of televised broadcasts of parliamentary proceedings, the Trial Judge ordered that each "take the necessary steps" to bring their practices into compliance with section 25.
76. However, the House argues in the alternative that even if the inherent parliamentary privilege of control of publication does not apply in this case, and even if the House is in breach of its official languages obligations pursuant to the OLA, the "appropriate and just" remedy contemplated by subsection77(4) of the OLA should have been a Declaration of the "sufficiency" of the CRTC's amendments to the Broadcasting Distribution Regulations (SOR/02-322). The House says this is so because:
- the CRTC's amendments to the Broadcasting Distribution Regulations (SOR/02-322) fully resolve the substance of the instant dispute;
- the CRTC is better situated than the Court to resolve the instant dispute through the exercise of its regulation-making powers because:
- the House has no means to ensure that the cable companies deliver both official language audio signals;
- only the CRTC process allows for the participation of other interested parties; and
- the Federal Court lacks the comparative expertise of the CRTC in broadcast matters.
Appellants' Memorandum at paras. 86 and 89-95
77. It is respectfully submitted, however, that these arguments are premised on two fundamental errors because:
- the CRTC's amendments to the Broadcasting Distribution Regulations (SOR/02-322) are neither a complete nor final resolution of the substance of the instant dispute since they do not ensure that all Canadian cable subscribers have effective access to CPAC in the official language of their choice; and
- in any event, the CRTC decision to amend the regulations has no bearing on the question of the nature and extent of the House of Commons' official languages obligations with respect to the delivery to the public of its televised debates and proceedings.
Practical Effect of the New CRTC Regulations
78. The CRTC's amendments to the Broadcasting Distribution Regulations (SOR/02-322) apply to most, but not all, cable companies, so that the benefit of the amended regulations does not extend to all Canadian cable subscribers. The decision of the Trial Judge, in contrast, orders the House to ensure that its official languages obligations accrue to the benefit of apply to all Canadian cable subscribers.
79. Although the CRTC's amendments to the Broadcasting Distribution Regulations (SOR/02-322) entail a significant increase in the number of Canadians who will have access to the debates and proceedings of the House in the official language of their choice, such regulatory changes could yet be modified or repealed.
80. Moreover, even if the practical impact of the CRTC's regulatory amendments were to ensure delivery of both official language audio signals to all Canadian cable subscribers, the Trial Judge could not have issued an order binding the CRTC to implement or maintain the amendments which the House says are a "sufficient" solution, since the CRTC was not a party to the proceedings in the Court below.
Jurisdiction of the Trial Court to Order Compliance with the OLA
81. The House does not contest the statutory authority of the Federal Court Trial Division under Part X ("Court Remedy") of the OLA. The argument is, however, that the Court should restrict itself to a declaration whether or not the House has met its OLA obligations since (it is argued) the Court is comparatively ill-suited to issue orders in official languages disputes that relate to matters falling within the CRTC's expertise.
Appellants' Memorandum at paras. 91-95
82. The Commissioner rejects this argument in its entirety:
- First, the House argues that the Court should not order the House to make sure that the cable companies deliver both official language audio tracks to their subscribers because (it is alleged) CRTC regulation is the only means to obtain that result. It is submitted that the Trial Judge was correct in finding that such means was available to the House: the House would have fulfilled its OLA obligations with respect to the broadcast publication of its debates and proceedings had it obliged CPAC to ensure that the cable companies delivered both audio signals. There was no evidence before the Trial Judge that the cable companies would refuse to deliver the CPAC signals if they were obliged by contract to deliver both English and French language audio signals.
Reasons at paras. 56-57
- Second, it is submitted that the participation of "other interested parties" would be irrelevant to the question before the Court, namely whether the OLA obliges the House of Commons to ensure that the televised broadcast of its debates and proceedings is delivered to the public in both official languages. The Trial Judge's Order simply directed the House to take the steps necessary to ensure that result; nothing precludes the House consulting with "other interested parties" in order to determine the best way to reach that result.
- Third, it is submitted that the accepted rule of judicial deference to the decisions of expert tribunals has no application in the instant case: the Applicant Mr. Quigley and the Commissioner called upon the Trial Judge to exercise his jurisdiction to rule on the nature and extent of the official languages obligations of the House and to order compliance with those obligations. That jurisdiction is expressly conferred on the Federal Court by the OLA. This is not an instance of either the Applicant Mr. Quigley or the Commissioner appealing or seeking judicial review of a CRTC decision.
83. Contrary to the House's submission, the fact that the Trial Judge declined to order the precise modalities of such "necessary steps" because of the complexities entailed does not entail a concession by the Trial Judge that CRTC was better placed than the Trial Judge to order the House to ensure an outcome consistent with its OLA obligations.
Cf.: Reasons at para. 59
Conclusion
84. The Commissioner submits in conclusion that:
- the Trial Judge correctly decided that the inherent parliamentary privilege of control of publication of debates and proceedings does not arise in the instant dispute because that privilege does not encompass decisions pertaining to the language of publication by televised broadcast;
- the Trial Judge correctly decided that the House was in breach of section 25 of the OLA since it had not taken steps to ensure that the televised broadcasts of its debates and proceedings were delivered to Canadian cable subscribers in both of Canada's official languages; and
- the Trial Judge correctly exercised his jurisdiction pursuant to Part X of the OLA when he ordered the House to take the steps necessary to fulfill its obligations under section 25 of the OLA.
PART IV - ORDER REQUESTED
85. In light of the foregoing, the Commissioner respectfully requests that this Honourable Court dismiss the instant appeal, upholding the decision of the Court below.
ALL OF WHICH IS RESPECTFULLY SUBMITTED THIS 11th DAY OF OCTOBER 2002.
________________________
Laura C. Snowball
Counsel for the Intervener,
the Commissioner of Official Languages for Canada
PART V - LIST OF AUTHORITIES
Constitutional and Legislative Texts
- Constitution Act, 1867, preamble and sections 18 and 133
- Constitution Act, 1982, sections 44 and 52
- Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, sections 16 to 23
- Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.)
- SOR/02-322, amending the Broadcasting Distribution Regulations
Case Law
- Reference re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148
- New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319
- Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876
- R. v. Beaulac, [1999] 1 S.C.R. 768
- Speaker of the Legislative Assembly of Ontario v. Ontario Human Rights Commission and Freitag, (2001) 54 O.R. (3d) 595 (Ont. C.A.)
- Stockdale v. Hansard, (1839) 9 Ad. & E. 1, 112 E.R. 1112
- Keilley v. Carson (1842), 4 Moore 3 61, 13 E.R. 225
Secondary Sources
- Maingot, J.P., Parliamentary Privilege in Canada, 2ed., Ottawa: House of Commons, 1997, p. 16
- 14. Limon & McKay, Erskine May's Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 22nd ed., London: Butterworths, 1997, pp. 84-85
