Federal Court Decisions

Date: 20020605

Docket: T-2395-00

Neutral citation: 2002 FCT 645

Toronto, Ontario, this 5th day of June, 2002

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

                                                                    LOUIS QUIGLEY

                                                                                                                                                       Applicant

                                                                                   

- and -

CANADA (HOUSE OF COMMONS),

CANADA (BOARD OF INTERNAL ECONOMY)

and CANADA (ATTORNEY GENERAL)

Respondents

- and -

COMMISSIONER OF OFFICIAL LANGUAGES FOR CANADA

Intervener

REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                 This is an application by Louis Quigley, the applicant, made pursuant to Section 77(1) of the Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.) (the "Act") for:

1.          A declaration that the House of Commons' current method of providing television broadcasts of parliamentary proceedings to the public contravenes Part I, section 22, section 25 and the spirit of the Act; and

2.          An order that the House of Commons comply with Part I, section 22, section 25 and the spirit of the Act, in its provision of television broadcasts of parliamentary proceedings to the public.

History of Broadcasting Parliamentary Proceedings

[2]                 As early as 1977, the House of Commons (the "House") 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 (see A. Fraser, et al., Beauchesne's Rules & Forms of the House of Commons of Canada, 6th ed. (Toronto: Carswell, 1989) at § 1121).

[3]                 The House of Commons Broadcasting Service ("HCBS") is responsible for the televised recording of proceedings in the House and its committees. Initially, live coverage of House proceedings was only available in the National Capital Region via a microwave system. During the second year of operation, until October, 1979, debates were rebroadcast throughout the country using video cassettes that were distributed to various cable services. The cable services decided whether or not to broadcast the proceedings. From 1979 until 1991, the proceedings of the House were broadcast by the English and French language Canadian Broadcasting Corporation, in both official languages, via two parliamentary channels established for that purpose.

[4]                 In 1992, the Board of Internal Economy of the House (the "Board") approved a proposal whereby the Cable Public Affairs Channel ("CPAC") would assume the cost of broadcasting House debates and proceedings for a two year period. A new agreement was signed between the House and CPAC in August, 1994 for the period from September 1, 1994 to August 31, 2001. The agreement provides in part that:

1.          The House produces and delivers its debates and proceedings and certain committee proceedings in both official languages to CPAC;

2.          The House will deliver to CPAC a live television (video) signal and three audio programming signals: (i) a sound signal originating from the floor of the House ("floor sound"); (ii) a sound signal in English only; and (iii) a sound signal in French only;

3.          CPAC will transmit these four signals to all cable television distribution undertakings throughout Canada.            

[5]                 CPAC is a non-profit corporation that is funded by a consortium of Canadian cable companies. In addition to the debates and proceedings of the House, CPAC also offers 30 hours per week of original programming and 46 hours each week of long format coverage of committees, conferences, hearings and special events.

[6]                 Broadcasting distribution undertakings ("BDU") are organized among three different classes based on how many subscribers they have. Generally, Class I BDUs have 6,000 subscribers or more, Class 2 BDUs have more than 2,000 but less than 6,000 subscribers, and Class 3 BDUs have less than 2,000 subscribers. Under the current regulations, CPAC is not a mandatory signal that BDUs must distribute but if Class 1 or 2 BDUs elect to distribute CPAC, then they must carry it as part of the basic service. Class 3 BDUs are not subject to any requirement to carry CPAC. Nevertheless, CPAC is carried widely across Canada by a variety of BDUs. For clarity, cable companies are BDUs. There is no contract between the House and the BDUs and the latter is free to choose which audio signal or signals it transmits.

[7]                 There is evidence, however, that recent technology would allow broadcasters to transmit one video signal and two audio signals simultaneously. This technology is known as second or secondary audio programming ("SAP") and these signals are receivable in the home using television sets or VCR units that are equipped with the appropriate decoder. Stand-alone SAP decoders are also available. In other words, a person who tunes in to CPAC could choose which of two audio signals he or she wants to listen to. There is also evidence that, while television manufacturers are not obliged to equip sets with SAP decoders, they have been doing so on most sets since the early 1990s and approximately 50% of Canadian homes have the necessary equipment. Furthermore, BDUs that choose to distribute a SAP signal on a single channel might incur upgrade costs of $500 to $5,000, depending on the equipment that they currently have (see Public Notice CRTC 2001-46).

[8]                 Finally, Canadians can access the audiovisual signals supplied by the House using a satellite dish or the Internet.

The Applicant's Complaint and the Commissioner's Investigation

[9]                 The applicant resides in Riverview, New Brunswick and subscribes to Rogers Cable Company of Moncton, New Brunswick ("Rogers Cable"). At the time of application, Rogers Cable provided the applicant with CPAC broadcasts in floor sound only. As he only speaks English, he was unable to understand those parts that are spoken in French.

[10]            The applicant filed a complaint in this regard with the Commissioner of Official Languages for Canada ("Commissioner") who, in turn, conducted an investigation. Consistent with the procedure set out in the Act, a preliminary copy of the Commissioner's report was provided to the federal institution under investigation for its comments. The final report was released in October, 2000: Office of the Commissioner of Official Languages, Enhanced Investigation Report: Investigation Report Concerning the Broadcasts and Availability of the Proceedings of the House of Commons in Both Official Languages, October 2000 (the "Report").

[11]            With respect to the application of Part I of the Act, the Report concluded at pages 6 to 9 that:

1.          Section 4 of the Act must be interpreted and applied in light of the spirit of the Act as a whole and its 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 vitality of the official language communities [R. v. Beaulac, [1999] 1 S.C.R. 768];

2.          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 requirements of bilingualism that flows from the equal access principle;

3.          Although the House system for the production of its debates for broadcast meets the requirements of the Act, the House has failed to ensure that the broadcasting and delivery system also meets those requirements;

4.          In order to meet the requirements of the Act, 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;

5.          The House cannot evade its official languages obligations by entering into a contract, as in this case between itself and CPAC, that separates the production and initial broadcast of House debates and proceedings from the ultimate delivery of broadcast signals to the public, and does not address that ultimate delivery; and,

6.          The House is not fully complying with its linguistic obligations as set out in Part I of the Act or with the spirit of the Act as regards the televising of its debates.

[12]            With respect to Part IV of the Act, the Report concluded at pages 9 and 10 that:

1.          The televising or audio-visual publication of parliamentary debates is a service provided to the public within the meaning of Part IV of the Act;

2.          The decision of the House to proceed with televised rebroadcasting of its debates subjects the House to the linguistic obligations set out in section 22 of the Act;

3.          The agreement between the House and CPAC, and the facts in general, show that CPAC is acting on behalf of the House within the meaning of section 25 of the Act;

4.          The House must therefore ensure that CPAC takes 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,

5.          The House has 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 Act, and the spirit of the Act.

[13]            Finally, at page 16 of the Report, the Commissioner recommended that the House:

1.              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,

2.              take into account its linguistic obligations under Part I and Part IV of the Official Languages Act when it renews or concludes a new agreement with a third party to ensure that the latter 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.

Applicant's Submissions

[14]            The applicant submits that the Act should be given a broad and purposive interpretation. He notes in particular that many of the sections of the Act resonate in both the Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.) (the "Constitution") and the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the "Charter"). The spirit of the Act, he says, is designed to protect the language rights that are enshrined in various constitutional documents and to allow meaningful participation in all branches of government, whether in English or in French. The applicant submits that the Act ensures the equality of both official languages so that all Canadians will have equal access to and service from federal institutions (see the preamble and section 2 of the Act; section 133 of the Constitution, subsections 16(1), 17(1), 18(1), 19(1) and 20(1) of the Charter).

[15]            In the applicant's view, section 4 of the Act protects the language rights of participants in parliamentary proceedings as well as the language rights of non-participants who rely on official reports of those proceedings. While the applicant concedes that the House need not always report on its proceedings, he asserts that when the House elects to do so, a translation is required. Such an interpretation, he says, is consistent with the Supreme Court of Canada's decision in R v. Beaulac, [1999] 1 S.C.R. 768. The applicant argues that the respondents cannot satisfy their responsibility under Part I of the Act by transmitting three audio signals to CPAC because this would allow the House to absolve itself of its statutory responsibilities by simply contracting with outside parties.

[16]            The applicant submits that members of the public must be able to obtain services from every federal institution in either official language. Moreover, federal institutions are subject to this same obligation even when those services are provided to the public on their behalf by other persons or organizations pursuant to sections 22 and 25 of the Act. The applicant submits that the House is clearly a "federal institution" under subsection 3(1) of the Act. In the applicant's view, the House has a duty to ensure that the organization with whom it contracts regarding the broadcast of televised debates (CPAC) takes steps to guarantee that those debates are ultimately broadcast in both official languages.

[17]            In particular, the applicant relies on the notion that parliamentary privilege can only be claimed where it is necessary such that without that privilege, the House could not discharge its functions (see J.P.J. Maingot, Parliamentary Privilege in Canada, 2nd ed. (McGill-Queen's University Press, 1997); Sir D. Limon & W.R. McKay, eds., Erskine May's Treatise on The Law, Privileges, Proceedings and Usage of Parliament, 22nd ed. (London: Butterworths, 1997)). Privilege is extended because the particular issue is seen as being critical to the very existence of the legislative body. While Madam Justice McLachlin recognized a category of privilege which she described as "control of publication of debates and proceedings in the House" at page 385 of her reasons in New Brunswick Broadcasting Co. v. Nova Scotia [1993] 1 S.C.R. 319 ("New Brunswick Broadcasting") apparently this privilege is particular has never been considered before. Nevertheless, the applicant asserts, and in this he says that he is supported by Maingot and May, that the privilege over the publication of debates or proceedings is closely connected with the right to exclude strangers from proceedings. The applicant submits that both are concerned with free speech and fair and accurate reporting, but not with dissemination after publication. The applicant argues that the House is free to close its doors to the public but once the doors are open, the House may not legally proceed to violate the provisions of the Act.

[18]            The applicant also submits that in order to claim privilege, the respondents must show that the activity over which the privilege is sought must be integral to the functioning of the parliament House legislator (see Harvey v. New Brunswick (Attorney General) [1996] 2 S.C.R. 876 ("Harvey")). McLachlin J. (as she then was), with whom L'Heureux-Dubé J. concurred, wrote the following about necessity at pages 918 and 919:

To prevent abuses cloaked in the guise of privilege from trumping legitimate Charter interests, the courts must inquire into the legitimacy of a claim of parliamentary privilege. As this Court made clear in New Brunswick Broadcasting, the courts may properly question whether a claimed privilege exists. The screening role means that where it is alleged that a person has been expelled or disqualified on invalid grounds, the courts must determine whether the act falls within the scope of parliamentary privilege. If the court concludes that it does, no further review lies.

British jurisprudence distinguishes between privileges asserted by resolution and privileges effected automatically by statute. In respect of privileges asserted by resolution, British courts have developed a doctrine of necessity, enabling them to inquire whether the action taken by resolution is necessary to the proper functioning of the House. The necessity inquiry does not ask whether the particular action at issue was necessary, and hence does not involve substantive judicial review. Rather, it asks whether the dignity, integrity and efficiency of the legislative body could be maintained if it were not permitted to carry out the type of action sought to be done, for example to expel a person from the legislature or disqualify a person from seeking office on grounds of corruption. Following this rule, this Court in New Brunswick Broadcasting inquired whether the resolution there in issue was necessary to the proper functioning of the legislature and the maintenance of its integrity. The question was left open whether a similar inquiry should be conducted where a legislated privilege, like the one asserted in the case at bar, is in question.

[19]            Here, the applicant argues that the respondents cannot meet the test of necessity as the dignity, integrity and efficiency of the House is not threatened by the Commissioner's order. Rather, the applicant submits that the opposite would be true as it would ensure that all Canadians have equal rights in accessing the proceedings of their elected representatives. In the applicant's view, a successful claim for privilege involves balancing certain interests, including the degree to which persons outside the legislative body are affected, the need for Parliament to regulate, and the rights of citizens to take issues to court. In this case, the applicant submits that the issue is not one which is confined to the House, its internal proceedings and functions, but rather is one which affects a broad number of Canadians as well as their ability to participate meaningfully and knowledgeably in Canada's democratic institutions.

[20]            The applicant submits that the respondents' claim of parliamentary privilege is merely a technical argument used to circumvent their obligations and responsibilities under the Act. This "defence" was not raised at any point before the commencement of these proceedings. First, the applicant argues that section 18 of the Constitution requires that the privileges and immunities enjoyed by the House be defined by an Act of Parliament. Those privileges, he says, are set out in section 4 of the Parliament of Canada Act, R.S.C. 1985, c. P-1. However, to the extent that the Parliament of Canada Act, supra is inconsistent with the Act, then the Act should predominate and defeat the assertion of privilege.

Intervener's (Commissioner's) Submissions

[21]            The Commissioner submits that subsection 4(3) must be given a broad and purposive interpretation so that the goal of full and equal access to parliamentary debates and proceedings in both official languages is fulfilled. The intervener argues that for many Canadians, watching parliamentary debates is a practical and convenient alternative to obtaining printed copies of Hansard.

[22]            For its part, the Commissioner argues that, by virtue of its contract with CPAC for the distribution and delivery of broadcast signals originating from the House, the House has engaged CPAC to deliver those signals to Canadians on its behalf. Furthermore, it is asserted that, as the exclusive source of such broadcast signals, the House is well-positioned to set contractual pre-conditions on its delivery of broadcast signals to CPAC and on CPAC's dealings with BDUs. The intervener also submits that a federal institution may not limit constitutional language rights by transferring the performance of certain of its functions where, if that federal institution had performed that function itself, it would have been obliged to comply with the Act (see Canada (Commissioner of Official Languages) v. Canada (Department of Justice) (2001), 194 F.T.R. 181). It is also argued that the House's obligations cannot be satisfied by its "best efforts".

[23]            The Commissioner submits that this Court is entitled to determine whether the respondents' claim of parliamentary privilege is valid. The Commissioner submits that this involves a two-stage inquiry. First, is the general activity claimed to be a constitutional parliamentary privilege actually a recognized constitutional parliamentary privilege? Second, is the particular activity in respect of which privilege is claimed actually part of that general constitutional parliamentary privilege? Speaker of the Legislative Assembly of Ontario v. Ontario Human Rights Commission and Freitag (2001), 54 O.R. (3d) 595 (Ont. C.A.), is a case where a non-elected person complained that the use of the Lord's Prayer as part of the Legislature's daily opening exercise pursuant to a standing order violated his right to equal treatment without discrimination. In that case, Mr. Justice Finlayson wrote the following at paragraph 25:

Therefore, 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 within a category is not scrutinized against a standard of necessity. As noted by McLachlin J., 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 recognized category of privilege. If it does, it is not subject to outside review.

[24]            The Commissioner agrees that control of publication of debates and proceedings is an inherent, and therefore constitutional, parliamentary privilege of the House yet contests that the House can control the language of publication as part of its privilege.

[25]            The Commissioner submits that the purpose of the privilege is to prevent false and perverted reports of its proceedings. Therefore, the House should be able to exert its privilege over the decision to publish or to control the extent of what is published but not the language in which something is published.

[26]            The Commissioner submits that if the choice of language is part of the House's privilege as defined historically or generically, it must be read with other parts of the Constitution; namely, section 133 of the Constitution and section 18 of the Charter. Since no part of the Constitution may abrogate or diminish any other part of the Constitution, potentially conflicting constitutional provisions must be read together and reconciled so that each may have the fullest meaning possible (see New Brunswick Broadcasting and Harvey). The Commissioner argues that the wording in this case is stronger than in Harvey and specifically that, in the face of section 133 of the Constitution, the privilege of control of publication that is recognized by the preamble to the Constitution could not have included the language of publication. Of course, section 133 of the Constitution was later supported by various provisions in the Charter.

[27]            If the Court rejects the arguments above, the Commissioner submits that sections 3 and 4 of the Act amended the Canadian constitutional privilege of control of publication to exclude the two official languages from the privilege pursuant to section 44 of the Constitution. It is noted that the Act specifically preserves parliamentary privilege with respect to the personal offices and staff of its Members and Senators pursuant to section 90 of the Act. The Commissioner submits that this is confirmation that the Act intended to amend Constitutional provisions with respect to parliamentary privilege, save certain narrow exceptions.

Respondents' Submissions

[28]            The respondents submit that the publication of House proceedings is one of the inherent privileges of the House and that this privilege enjoys constitutional protection. For these propositions, the respondents rely heavily on the Supreme Court of Canada's decision in New Brunswick Broadcasting per McLachlin J. (as she then was). In that case, the Speaker of the Nova Scotia Legislature excluded independent television cameras from the House. Therefore, an application was brought before the courts for an order that that decision violated section 2(b) of the Charter. In the respondents' submissions, the court held that inherent privileges are protected by the preamble of the Constitution, that the Speaker's decision fell within the Legislature's inherent privilege to exclude strangers, and that the judiciary had no power to review the exercise of such a privilege.

[29]            The respondents rely on the categories of privilege which arose in the United Kingdom and that McLachlin J. (as she then was) enumerated in the New Brunswick Broadcasting case at pages 385 to 386, including control of publication of debates and proceedings in the House. The respondents submit that those privileges are preserved by section 4 of the Parliament of Canada Act, supra. The respondents rely on New Brunswick Broadcasting for the proposition that Constitutional rights cannot be diminished because one part of the Constitution cannot abrogate another.

[30]            The respondents submit that this is really a division of powers issue and such that when a legislative body exercises one of its inherent privileges, the Court has no business reviewing that decision. In any event, the respondents argue that the House is attempting to deal with the issue.

[31]            If the Court does not agree that the House's decision falls within its inherent privileges, then the respondents submit that they have not violated the Act in any way. First, with respect to section 25 of the Act, the respondents submit that Rogers Cable is not providing a service on behalf of the House. The respondents submit that a person who acts "on behalf" of a federal institution under section 25 is a person over whom the federal institution exercises sufficient control so that the institution may "ensure" that this person provides bilingual services. The respondents submit that a private retailer that is free to contract or not to contract is not subject to that degree of control. Although the respondents concede that Rogers Cable could be forced to transmit two audio signals by enacting the appropriate regulations under the Broadcasting Act, S.C. 1991, c. 11, the respondents submit that the House and the Board do not have such power. The respondents submit that if the House was ordered to seek an undertaking from CPAC that in its contracts with cable distributors, CPAC would ensure that French and English audio signals were transmitted, then many distributors would simply refuse to carry CPAC at all. The respondents submit that this would lead to a negative result since the number of people who have access to CPAC would be reduced and the funding arrangement that CPAC currently enjoys would be put into jeopardy.

[32]            The respondents submit that if the interpretation suggested by the applicant was to apply, then the House would also have an obligation to ensure that Rogers Cable had bilingual employees to answer its customer's concerns. If a private bookstore sells federal publications, the respondents question whether section 25 would create a duty to ensure that the sales clerk speaks both official languages.

[33]            The respondents submit that the spirit, along with Part I of the Act, are not triggered by the applicant's complaint. The respondents submit that the use of both languages in Parliament is protected and that all records or communications are made available in both official languages. In other words, the respondents contend that they have discharged their obligations under the Act and they should not be held responsible if the applicant is not able to access what is provided (i.e. via satellite or Internet).

[34]            With respect to an appropriate remedy, the respondents submit that the House has no power to force CPAC into agreeing with any specific terms nor can it force any agreement between CPAC and private BDUs. The respondents submit that the best remedy would be an amendment to the Broadcasting Distribution Regulations, SOR/97-555, which the respondents submit is not in the power of the House or the Board. The respondent, the Attorney General of Canada, submits that the Court should not go beyond issuing a declaration. In the alternative, the implementation of any order should be left to the CRTC which is a specialized and independent agency and is best positioned to consider complex technological, economic and cultural policy issues.

[35]            Issues

1.          Does this Court have jurisdiction to apply the Act to the House or can the House assert its inherent constitutional privilege?

2.          Is the House in breach of its linguistic obligations under the Act?

3.          What is the appropriate remedy on the facts of this case?

[36]            Applicable Legislation

The relevant portions of the Constitution are:

  

[37]            The relevant portions of the Charter are:

16. (1) English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada. . . . 17. (1) Everyone has the right to use English or French in any debates and other proceedings of Parliament. . . . 18. (1) The statutes, records and journals of Parliament shall be printed and published in English and French and both language versions are equally authoritative. . . .     20. (1) Any member of the public in Canada has the right to communicate with, and to receive available services from, any head or central office of an institution of the Parliament or government of Canada in English or French, and has the same right with respect to any other office of any such institution where (a) there is a significant demand for communications with and services from that office in such language; or (b) due to the nature of the office, it is reasonable that communications with and services from that office be available in both English and French.

16. (1) Le français et l'anglais sont les langues officielles du Canada; ils ont un statut et des droits et privilèges égaux quant à leur usage dans les institutions du Parlement et du gouvernement du Canada. . . . 17. (1) Chacun a le droit d'employer le français ou l'anglais dans les débats et travaux du Parlement. . . . 18. (1) Les lois, les archives, les comptes rendus et les procès-verbaux du Parlement sont imprimés et publiés en français et en anglais, les deux versions des lois ayant également force de loi et celles des autres documents ayant même valeur. . . . 20. (1) Le public a, au Canada, droit à l'emploi du français ou de l'anglais pour communiquer avec le siège ou l'administration centrale des institutions du Parlement ou du gouvernement du Canada ou pour en recevoir les services; il a le même droit à l'égard de tout autre bureau de ces institutions là où, selon le cas: a) l'emploi du français ou de l'anglais fait l'objet d'une demande importante;    b) l'emploi du français et de l'anglais se justifie par la vocation du bureau.

[38]            Section 44 of the Constitution states:

44. Subject to sections 41 and 42, Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons.

44. Sous réserve des articles 41 et 42, le Parlement a compétence exclusive pour modifier les dispositions de la Constitution du Canada relatives au pouvoir exécutif fédéral, au Sénat ou à la Chambre des communes.

[39]            Portions of the Official Languages Act, supra state:

WHEREAS the Constitution of Canada provides that English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada;     AND WHEREAS the Constitution of Canada provides for full and equal access to Parliament, to the laws of Canada and to courts established by Parliament in both official languages; AND WHEREAS the Constitution of Canada also provides for guarantees relating to the right of any member of the public to communicate with, and to receive available services from, any institution of the Parliament or government of Canada in either official language; 2. The purpose of this Act is to (a) ensure respect for English and French as the official languages of Canada and ensure equality of status and equal rights and privileges as to their use in all federal institutions, in particular with respect to their use in parliamentary proceedings, in legislative and other instruments, in the administration of justice, in communicating with or providing services to the public and in carrying out the work of federal institutions; . . .    76. In this Part, "Court" means the Federal Court -- Trial Division.

Attendu_: que la Constitution dispose que le français et l'anglais sont les langues officielles du Canada et qu'ils ont un statut et des droits et privilèges égaux quant à leur usage dans les institutions du Parlement et du gouvernement du Canada; qu'elle prévoit l'universalité d'accès dans ces deux langues en ce qui a trait au Parlement et à ses lois ainsi qu'aux tribunaux établis par celui-ci;    qu'elle prévoit en outre des garanties quant au droit du public à l'emploi de l'une ou l'autre de ces langues pour communiquer avec les institutions du Parlement et du gouvernement du Canada ou pour en recevoir les services;    2. La présente loi a pour objet_: a) d'assurer le respect du français et de l'anglais à titre de langues officielles du Canada, leur égalité de statut et l'égalité de droits et privilèges quant à leur usage dans les institutions fédérales, notamment en ce qui touche les débats et travaux du Parlement, les actes législatifs et autres, l'administration de la justice, les communications avec le public et la prestation des services, ainsi que la mise en oeuvre des objectifs de ces institutions; . . . 76. Le tribunal visé à la présente partie est la Section de première instance de la Cour fédérale.

[40]            The Parliament of Canada Act, supra, states:

4. The Senate and the House of Commons, respectively, and the members thereof hold, enjoy and exercise (a) such and the like privileges, immunities and powers as, at the time of the passing of the Constitution Act, 1867, were held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom and by the members thereof, in so far as is consistent with that Act; and

4. Les privilèges, immunités et pouvoirs du Sénat et de la Chambre des communes, ainsi que de leurs membres, sont les suivants_: a) d'une part, ceux que possédaient, à l'adoption de la Loi constitutionnelle de 1867, la Chambre des communes du Parlement du Royaume-Uni ainsi que ses membres, dans la mesure de leur compatibilité avec cette loi;

   

Analysis and Decision

[41]            There is no doubt that the House and the Members thereof enjoy certain parliamentary privileges. Section 4 of the Parliament of Canada Act, supra outlines those privileges. Basically, the privileges are immunities and powers which were held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom and Ireland and its members at the time of the Constitution. When section 18 of the Constitution was amended in 1875, the Canadian Parliament was given authority to define its privileges, but those privileges could not exceed what was being exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland and its members.

[42]            In New Brunswick Broadcasting McLachlin J. (as she then was) stated at page 385:

The pragmatic argument: necessity

I earlier alluded to scholarly and judicial opinion supporting the conclusion that Canadian legislative bodies possess such historically recognized constitutional privileges as may be necessary to their efficient functioning. Implicit in this conclusion is the assertion that, from a practical point of view, legislative bodies must possess certain inherent powers in order to properly discharge their functions.

As a general proposition, can unwritten constitutional privileges inherent to our legislative bodies be justified on the ground of necessity? Putting the matter differently, can our legislative bodies function properly, clothed only with those powers expressly conferred by our written constitutional documents? The answer to this question must, in my view, be negative. The importance of the unwritten constitutional right, for example, to speak freely in the House without fear of civil reprisal, is clear.

Among the specific privileges which arose in the United Kingdom are the following:

(a)             freedom of speech, including immunity from civil proceedings with respect to any matter arising from the carrying out of the duties of a member of the House;

(b)            exclusive control over the House's own proceedings;

(c)             ejection of strangers from the House and its precincts; and

(d)            control of publication of debates and proceedings in the House.

[43]            With respect to the privilege in issue in this case, the control of publication of debates and proceedings in the House, McLachlin J. (as she then was) stated at page 386:

Finally, on the right to control publication of debates and proceedings, Erskine May states (at p. 85):

Closely connected with [the] power [to exclude strangers] is the right of either House to prohibit the publication of debates or proceedings. The publication of the debates of either House has in the past repeatedly been declared to be a breach of privilege, and especially false and perverted reports of them . . .

Clearly there exists a privilege with respect to the control of publication of debates and proceedings in the House.

[44]            The nature of privilege is discussed by McLaughlin J. (as she then was) of the Supreme Court of Canada in New Brunswick Broadcasting at pages 379 to 385:

The privileges attaching to colonial legislatures arose from common law. Modelled on the British Parliament, they were deemed to possess such powers and authority as are necessarily incidental to their proper functioning. These privileges were governed by the principle of necessity rather than by historical incident, and thus may not exactly replicate the powers and privileges found in the United Kingdom.

In Erskine May's Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 21st ed., by C.J. Boulton (London: Butterworths, 1989), privilege is described in the following manner (at pp. 69 and 82):

Parliamentary privilege is the sum of the peculiar rights enjoyed by each House collectively as a constituent part of the High Court of Parliament, and by Members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. Thus privilege, though part of the law of the land, is to a certain extent an exemption from the general law.

. . .

. . . the privileges of Parliament are rights which are "absolutely necessary for the due execution of its powers . . .

The basic character of privilege in Canada is well set out in Professor Dawson's The Government of Canada, supra, at pp. 337-8:

Privileges formed in themselves a special body of law and became known collectively as the lex et consuetudo Parliamenti. It had no statutory basis whatever; indeed, it sprang originally from the authority of Parliament as a court; and not as a legislative body . . .

The lex et consuetudo Parliamenti.as known in England, unlike the major part of the common law, has not been transplanted to Canada. The creation of legislative bodies overseas did not endow those bodies with privileges and powers of the English Parliament, which, as stated above, were primarily judicial in origin. Such creation did imply, however, that these legislatures would need to exercise certain very moderate privileges which were necessary for the maintenance of order and discipline during the performance of their duties. But these were to be protective and not punitive powers, for the latter were again considered to be characteristic of a court rather than of a legislative body.

The most recent treatment of these issues in the Canadian setting echoes this thinking. Thus, Joseph Maingot in his Parliamentary Privilege in Canada (Toronto: Butterworths, 1982) also recognizes that Canadian legislative bodies had, from their inception, those privileges which were necessary for the maintenance of order and discipline during the performance of their duties (at pp. 2-3):

From the time that a legislative assembly was first established in Canada in 1758 in Nova Scotia, the law accorded to it and to those taking part in its deliberations all the power considered necessary for a legislature and its members to perform their legislative work. In this way, the members had freedom of speech in debate; they were protected from being arrested in connection with civil cases because the legislature had first call on their services and attendance. It was said in an early opinion that they had the power to imprison for such acts of contempt in the face of the assembly as produced disturbance and interruption of their proceedings. While such custom and practice developed in Upper and Lower Canada and continued in the Province of Canada, it was held in 1842 that colonial legislatures had no power to commit for contempt committed outside the assembly, and in 1866 it was held that they had no power to commit for contempt even when committed in the assembly. In other words, "protective and self-defensive powers only, and not punitive powers, are necessary."

The early legislatures had to rely on their inherent power because they were the assemblies of colonies: the legal instrument creating them, a royal proclamation or an act of the U.K. Parliament, would not normally provide for the same immunity or power as the U.K. House of Commons because that would not be compatible with their dependent status. It was not until 1896 that the legislatures of the provinces received judicial confirmation of the authority to take on much the same privileges as the U.K. or Canadian House of Commons. That same court (Fielding v. Thomas, [1896] A.C. 600 (N.S.)) pointed out that from 1865, the early elected legislatures in Canada (such as that of Nova Scotia) had by virtue of section 5 of the Colonial Laws Validity Act, 1865 the authority to legislate their privileges.

The forgoing remarks indicate that Canadian legislative bodies properly claim as inherent privileges those rights which are necessary to their capacity to function as legislative bodies. There is no dispute in the case law that necessity is the test. . . . But the Privy Council did not dispute that such powers "as are necessary to the existence of such a body, and the proper exercise of the functions which it is intended to execute" were bestowed with the very establishment of the Newfoundland Assembly. Baron Parke stated (at p. 88 Moore, pp. 234-5 E.R.):

In conformity to this principle we feel no doubt that such 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 Common Law.

. . .

It is for the courts to determine whether necessity sufficient to support a privilege is made out. Lord Denman C.J. in Stockdale v. Hansard (1839), 9 Ad. & E. 1, 112 E.R. 1112 (Q.B.), stated at p. 149 Ad. & E., p. 1169 E.R.: "If the necessity can be made out, no more need be said: it is the foundation of every privilege of Parliament, and justifies all that it requires." He noted, however, that it is up to the courts to determine whether necessity supports the privilege claimed; if it does, and only if it does, the courts will not inquire into its exercise (at pp. 147-8 A. & Ed., p. 1168 E.R.):

Where the subject matter falls within [the House of Commons'] jurisdiction, no doubt we cannot question their judgment; but we are now enquiring whether the subject matter does fall within the jurisdiction of the House of Commons. It is contended that they can bring it within their jurisdiction by declaring it so. To this claim, as arising from their privileges, I have already stated my answer: it is perfectly clear that none of these Courts could give themselves jurisdiction by adjudging that they enjoy it.

The test of necessity is not applied as a standard for judging the content of a claimed privilege, but for the purpose of determining the necessary sphere of exclusive or absolute "parliamentary" or "legislative" jurisdiction. If a matter falls within this necessary sphere of matters without which the dignity and efficiency of the House cannot be upheld, courts will not inquire into questions concerning such privilege. All such questions will instead fall to the exclusive jurisdiction of the legislative body.

Thus, the test of necessity for privilege is a jurisdictional test.

. . .

In summary, it seems clear that, from an historical perspective, Canadian legislative bodies possess such inherent privileges as may be necessary to their proper functioning. These privileges are part of the fundamental law of our land, and hence are constitutional. The courts may determine if the privilege claimed is necessary to the capacity of the legislature to function, but have no power to review the rightness or wrongness of a particular decision made pursuant to the privilege.

It is against this background of jurisprudence that the present application must be assessed.

[45]            Issue 1

Does this Court have jurisdiction to apply the Act to the House or can the House assert its inherent constitutional privilege?

It is most important for the resolution of this issue to set out precisely what the factual situation is in this case. There is no dispute that the House proceedings have been broadcast since January 25, 1977. The history of the broadcasting of these proceedings and the mode of broadcasting is summarized in the Investigation Report of the Office of the Commissioner of Official Languages dated October, 2000 at pages 4 to 6:

a) History of Television Broadcasting of House of Commons Proceedings

Our investigators learned that on January 25, 1977, the House of Commons approved the radio and television broadcasting of its proceedings and of those of its committees on the basis of principles similar to those that govern the publication of the printed official reports of debates. From 1979 to April 1991, by virtue of either a temporary licence or a network licence from the CRTC, the Canadian Broadcasting Corporation (CBC)/Radio-Canada (SRC) broadcasted House proceedings in the two official languages via the two Parliamentary Channels set up for this purpose. However, as of April 1991, due to budget restrictions, the CBC was unable to continue funding of its Parliamentary Channel. In 1992, the House of Commons Board of Internal Economy approved a CPAC proposal to assume the cost of the Parliamentary Channel for a period of two years. In 1994, the House of Commons and CPAC signed the above-mentioned agreement whereby CPAC assumed responsibility for the national distribution by satellite of the signal of the televised House Chamber and Committee proceedings.

b) Description of CPAC

CPAC is a non-profit corporation, which is operated as a non-commercial programming service and is fully funded by a consortium of over 100 Canadian cable companies. It is a national service that broadcasts two main types of programming, the proceedings of the House Chamber and of certain House Committees and public affairs activities happening across the country. However, the broadcast of House debates takes precedence over public affairs programming. CPAC has a seven-year operating licence from the CRTC which ends on August 31, 2002.

c) Current Situation

The 1994 agreement between the House of Commons and CPAC on the broadcasting of debates specifies the obligations of each party. Essentially, clauses 2 and 3 provide for the production of the debates in both official languages by the House of Commons and the distribution to cable broadcasting companies via satellite (preferably by Telesat Canada) of the television signal of the debates in three audio formats (English, French and floor sound) and one video format by CPAC. The purpose of this agreement, according to its own wording, is to provide all Canadians with the widest possible distribution of signals transmitted by its broadcasting service.

In fact and pursuant to the agreement, the House of Commons Broadcasting Service (HCBS) transmits the proceedings of the House Chamber and of certain Committees in both official languages to CPAC. The Operations Centre of the HCBS transmits one live video signal and three audio signals (English, French and floor sound) to CPAC, which then broadcasts these signals by satellite to cable companies, the two satellite Direct to Home (DTH) broadcast distributors, and Look TV, throughout Canada. It should be noted, however, that these cable companies are not parties to the agreement and that, when they receive the signals transmitted by CPAC, they choose the language of the audio signal they offer free of charge to their viewers. Consequently, depending on the cable broadcasting company and the location where the debates of the House of Commons are being broadcast, the result is that the public does not always have access, in both official languages, to these televised debates. It should also be noted that distribution of CPAC is optional for cable companies.

It is also important to note that during the period 1979 to 1991 when CBC/SRC was broadcasting House proceedings in both official languages on its Parliamentary channels, the CRTC played an important role because it issued a decision facilitating cable companies' broadcasts of House debates. As a result, these proceedings were potentially available to about 50% of Canadian households in both official languages. In 2000, about 80% of Canadian households have cable, which means that broadcasts of House proceedings now reach approximately seven million households.

Broadcasts of House proceedings are equivalent to a video version of "Hansard". Because of current technological limitations and public demands for increased channel capacity, a very few cable companies choose the floor sound audio signal as their primary audio feed to broadcast to their audiences rather than the two separate English and French signals. The vast majority of cable companies choose a combination of two of the three audio feeds to make available to their viewers. Because the floor sound does not include simultaneous interpretation, unilingual viewers are now unable to comprehend a significant part of the broadcasts of House proceedings.

Also, it is worth noting that a new technology, the Multi-Channel TV Sound (MTS) and the Second Audio Program (SAP), by which a single television channel can carry one video signal and two audio signals at the same time, has been available for a few years. It means that the viewer can now choose between two of the three audio signals provided by CPAC to the cable or satellite distribution companies. However, this technology is not widely known and not readily accessible to everyone, since it depends on the type and the age of the television set.

[46]            From a review of the facts, it is obvious that the respondents are already providing floor sound plus English only and French only sound tracks to CPAC. As already indicated, CPAC is a non-profit corporation that is funded by a consortium of Canadian BDUs. CPAC is the body that offers the proceedings of the House to individual BDUs and it is the individual BDUs that decide which if any of the feeds (English, French or floor sound) it will offer to its subscribers.

[47]            I do not see the House's privilege over the publication of its debates arising in this case. The decision to make the proceedings of the House available to CPAC in English, French and floor sound has already been made by the House. The House did not say that it was exercising its privilege to control the publication of the debates by not providing an audio signal in one language or the other.

[48]            This is confirmed by paragraph 19 of the affidavit of Louis Bard sworn to February 21, 2001 and proffered by the respondents. Clause 19 reads:

The House of Commons also ensures that CPAC is sent a video signal and the following three audio signals: a sound signal originating from the floor of the House, a sound signal in English only, and a sound signal in French only.

[49]            Based on the above evidence, it seems to me that since the House has in the past and is continuing to provide CPAC with all three audio signals, floor sound plus English only and French only sound signals, the issue of parliamentary privilege relating to the control of the publication of the debates does not arise in this case. CPAC has all of the above mentioned feeds available for the BDUs and the BDUs choose which feeds they wish to distribute. The respondents have already chosen the manner in which they wish to publish the proceedings of the House. This is a deliberate decision made by the respondents.

[50]            Issue 2

Is the House in breach of its linguistic obligations under the Act?

The fact that privilege does not arise on the facts of this case does not, however, end the matter. As a result of the decision of a BDU, the applicant, Mr. Quigley, was unable to receive in English the sound of the House (at least as of the date of his application).

[51]            Since I have found that the factual situation of the present case does not involve the application of the parliamentary privilege in question, it is now necessary that I make a determination with respect to the requirements of the Act. For ease of reference, I will reproduce subsections 3(1) and sections 4, 22 and 25 of the Act:

3. (1) In this Act, . . .    "federal institution" includes any of the following institutions of the Parliament or government of Canada: (a) the Senate, (b) the House of Commons, (c) the Library of Parliament, (d) any federal court, (e) any board, commission or council, or other body or office, established to perform a governmental function by or pursuant to an Act of Parliament or by or under the authority of the Governor in Council, (f) a department of the Government of Canada,

3. (1) Les définitions qui suivent s'appliquent à la présente loi. . . . « _institutions fédérales_ » Les institutions du Parlement et du gouvernement du Canada, dont le Sénat, la Chambre des communes et la bibliothèque du Parlement, les tribunaux fédéraux, tout organisme -- bureau, commission, conseil, office ou autre -- chargé de fonctions administratives sous le régime d'une loi fédérale ou en vertu des attributions du gouverneur en conseil, les ministères fédéraux, les sociétés d'État créées sous le régime d'une loi fédérale et tout autre organisme désigné par la loi à titre de mandataire de Sa Majesté du chef du Canada ou placé sous la tutelle du gouverneur en conseil ou d'un ministre fédéral. Ne sont pas visés les institutions du conseil ou de l'administration du Yukon et des Territoires du Nord-Ouest, celles de

   

[52]            There is no doubt from the record of this case that the House makes its debates available to CPAC in English, French and floor sound. By its agreement with the House, CPAC makes all of these signals available to the various BDUs. Not all of the BDUs broadcast all three audio signals. They are currently not required to because they are not a party to the agreement between the Speaker of the House and CPAC. As a result, if the BDU only broadcasts the floor sound from the House and a question is asked in French and answered in English, a unilingual person could not understand the whole exchange.

[53]            CPAC is a company incorporated under the laws of Canada and its shareholders all hold licences from the Canadian Radio-Television and Telecommunications Commission to operate cable television undertakings. CPAC is the vehicle used by the House to provide the public with the proceedings of, in particular, the House. CPAC is a separate entity from the House, it is responsible for programming and provides signals to the BDUs.

[54]            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 BDUs for distribution to the public. It is because the services are being provided by CPAC for the Speaker of the House that section 25 of the Act applies.

[55]            Section 25 of the Act requires that every federal institution, and the House is defined as a federal institution by the Act, must, if it uses another person or organization to deliver services that are required to be provided in both official languages, ensure that the person or organization providing such service does so in both official languages. That has not happened in this case since CPAC, in its agreement with the House, did not undertake to ensure that its distribution contracts with various BDUs would guarantee that CPAC would be broadcast in both official languages.

[56]            In my opinion, section 25 of the Act requires that any agreement between the House and CPAC, based on the facts of this case, must "ensure" that the eventual broadcasting of the proceedings already provided by the House be in both official languages. By way of example, in the contract between the Speaker of the House and CPAC, if CPAC undertook to negotiate in its agreements with BDUs that the latter would broadcast CPAC programming in both official languages, then the problem facing the applicant would be avoided.

[57]            The respondent House argues that BDUs would refuse to broadcast CPAC if such a clause were inserted. There is no evidence before me to establish this statement. In any event, if section 25 of the Act applies and I have found that it does, the mere fact that BDUs may refuse to air any proceedings of the House does not justify ignoring of section 25 of the Act.

[58]            I am therefore of the view that the House is in breach of its linguistic obligations under the Act as it has failed to ensure that the proceedings of the House would be provided in both official languages through its agreements with CPAC.

[59]            Issue 3

What is the appropriate remedy on the facts of this case?

I am of the opinion that the appropriate remedy in this case is to order that the House and the Board take the steps that are necessary to satisfy section 25 of the Act within one year from the date of this decision. Because of the complexity of the matter, I do not propose to spell out the complete nature of the steps to be taken.

ORDER

[60]            IT IS ORDERED that:

1.          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.

2.          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.

3.          The parties may make written submissions to me as to costs.

     

             "John A. O'Keefe"

                                                                                                                                                                                    

                                                                                                      J.F.C.C.                         

Toronto, Ontario

June 5, 2002

    

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   T-2395-00

STYLE OF CAUSE: LOUIS QUIGLEY

             - and -

CANADA (HOUSE OF COMMONS),

CANADA (BOARD OF INTERNAL ECONOMY)

and CANADA (ATTORNEY GENERAL)

             - and -

COMMISSIONER OF OFFICIAL LANGUAGES FOR

CANADA

                                                         

PLACE OF HEARING:                                   Halifax, Nova Scotia

DATE OF HEARING:                                     Wednesday, December 5, 2001

REASONS FOR ORDER AND ORDER OF O'KEEFE J.

DATED:                      Wednesday, June 5, 2002

APPEARANCES:

Kevin Quigley and Brian Curry

FOR APPLICANT

Joel E. Fichaud

FOR RESPONDENT

House of Commons and

Board of Internal Economy

Michael Donovan

FOR RESPONDENT

Attorney General

Laura C. Snowball

FOR INTERVENER

SOLICITORS OF RECORD:

                                     Burchell Green Hayman Parish

1800 - 1801 Hollis Street

Halifax, Nova Scotia    B3J 2R7

FOR APPLICANT

Patterson, Palmer, Hunt, Murphy

1600 - 5151 George Street

Halifax, Nova Scotia    B3J 2N9

FOR RESPONDENT

House of Commons and

Board of Internal Economy

Department of Justice

1400 - 5251 Duke Street

Halifax, Nova Scotia    B3J 1P3

FOR RESPONDENT

Attorney General

Office of Commissioner of Official Languages

344 Slater Street

Ottawa, Ontario    K1A 0T8

FOR INTERVENER

                                                  

                    FEDERAL COURT OF CANADA

                                  TRIAL DIVISION

  

Date: 20020605

Docket: T-2395-00

BETWEEN:

LOUIS QUIGLEY

Applicant

- and -

CANADA (HOUSE OF COMMONS),

CANADA (BOARD OF INTERNAL ECONOMY)

and CANADA (ATTORNEY GENERAL)

Respondents

- and -

COMMISSIONER OF OFFICIAL

LANGUAGES FOR CANADA

Intervener

                                                                           

REASONS FOR ORDER AND ORDER