Hamilton Centre MPP Sarah Jama has served the Ontario government and the Ontario Legislative Assembly with a lawsuit. The former New Democrat, now independent member, elected earlier this year was censured by the Progressive Conservative majority at Queen’s Park in October after she responded to Hamas’s attacks on Israel by urging that country to “end all occupation of Palestinian land and end apartheid” and calling for an immediate ceasefire.
The PC party — namely, Premier Doug Ford and his government house leader, Paul Calandra – responded to Jama’s remarks by accusing her of condoning Hamas’s attacks. On October 18, Calandra introduced a motion at Queen’s Park forbidding the Speaker of the House, Ted Arnott, from recognizing Jama in debate until such time as she “retracts and deletes her statements on social media and makes an apology in her place in the House.”
Motion 19 carried 63-23, with Progressive Conservative members voting in favour, NDP members and Green leader Mike Schreiner voting against, and Liberals abstaining.
Now Jama is seeking judicial review of the motion, arguing that she’s being mistreated by the majority in the legislature and by Arnott. What legal questions does Jama’s lawsuit raise?
Can the legislature do this?
This is the most basic question of all. The motion and Jama’s punishment are justified under the broad privileges of Parliament — the power of the legislature to regulate its own internal affairs, separate and distinct from other laws. Section 18 of the Canadian constitution of 1867 grants Parliament (the federal House of Commons and the Senate) all the “privileges, powers and immunities” held by the British House of Commons of the time. In this context, the most relevant parliamentary privileges are the power to discipline members and the power of Parliament (or a provincial legislature) to organize and manage its own internal debates, including setting rules for whom the Speaker may recognize to speak.
Since courts have long recognized this privilege — indeed, it’s at the core of the very idea — this might end the discussion. But courts have been reluctant to recognize a total all-encompassing idea of privilege that excludes Parliament and the provincial legislatures from any kind of judicial scrutiny.
Are there checks on privilege?
In her legal application, Jama argues that the legislature’s privileges to discipline members are constrained by a number of factors and that those constraints make the use of these powers against her “unlawful, an abuse of power, and unconstitutional.” First, she argues that the legislature’s privileges exist only insofar as they’re defined in Ontario’s Legislative Assembly Act. That law sets out grounds for disciplining an MPP for contempt or for a breach of the Members’ Integrity Act. Since Jama isn’t accused of a breach under those laws or any other laws, her application argues, Motion 19 is outside the powers of the house.
There are other possible constraints on privilege — namely, the Charter of Rights and Freedoms. Jama’s application argues that, even if the legislature has the general powers to discipline members, those powers can’t reasonably be used to punish an elected member of the assembly for constitutionally protected speech outside the legislature that doesn’t break any Canadian laws.
There are previous cases dealing with the interaction between the Charter and parliamentary privilege. In 1993, the Supreme Court of Canada upheld the Nova Scotia House of Assembly’s power to prohibit TV cameras despite the obvious conflict with the Charter’s guarantee of press freedoms. The Supreme Court reiterated an old rule that says one part of the Constitution (the Charter) can’t be used to attack another (privileges) and held that the Charter doesn’t apply to the inherent privileges of Parliament and legislatures.
So what’s an inherent privilege? In short, the categories of privilege that are absolutely necessary for Parliament or the legislatures to fulfil their constitutional roles autonomously and independently. Justice Beverley McLachlin elaborated on this definition of “necessity” in the 1993 decision, and it was reiterated in the unanimous 2005 Canada v. Vaid decision.
What are the chances of success for Jama’s lawsuit?
The downside for Jama in these precedents is that disciplining members and organizing its own debates (imposing rules on who can and cannot speak) are just about as close to core, inherent privileges of Parliament as it’s possible to get. The courts have declared that, once they’ve recognized an inherent privilege as a category, they won’t hear cases about individual instances of that privilege, since doing so would erode the very privilege they’ve recognized. Jama has a very high bar to clear with her case.
But courts can be unpredictable, and Jama might prevail notwithstanding those precedents — the Vaid decision is nearly 20 years old, and other decisions are even older. Judges are people, and the current Supreme Court of Canada is made up of people very different from those who sat nearly a generation ago. Jama’s case will bear watching as it proceeds: the courts could attempt to narrow the scope of parliamentary privilege — or leave these matters to the elected MPPs in assembly, who can, at least, be punished by voters.
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