Freedom of Speech and the Office of Speaker

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David Hamilton is Clerk of the Northwest Territories Legislative Assembly. This is a revised version of a paper presented to the 15th Canadian Presiding Officers' Conference in Victoria, British Columbia, January 15-18, 1998.

One of the most important ways a member represents his or her constituents is by raising issues in the legislature. Presiding Officers face a dilemma in this regard. As elected members they are expected to represent their constituents. Yet by tradition they are precluding from speaking in debate or participating in question period except as an impartial referee. This paper will examine the inter-relationship between freedom of speech as it relates to the role of the Speaker and the political convention that the Speaker raise issues in a forum other than on the floor of the House.

We all know the hallmark of the Speaker's role is neutrality and impartiality. It is critical to the democratic functioning of our parliamentary institutions that debate and law-making be presided over by an impartial Speaker. Yet, it is also an essential democratic principle that every citizen is entitled to representation in the political process. In order to effectively represent constituents, a Speaker must have the ability to raise the concerns of their constituents in an effective manner. "A Speaker is not a political eunuch, he is a Member of Parliament. So it is absolutely essential that he be allowed to fulfil his role as a Member of Parliament because that is what his constituents expect of him" (1).

Obviously, there are many aspects to performing the dual role of Member and Speaker. The Speaker must consider how to balance the need for perceived neutrality with the need to adequately represent the interest of constituents. In most Canadian jurisdictions, the issue of whether the Speaker takes an active role in party politics is relevant. It is important that a Speaker be visible in his or her constituency. It is equally important that a Speaker's constituents understand the limitations, and strengths, of their Member in the role of Speaker.

Beauchesne states, "The privilege of freedom of speech is both the least questioned and the most fundamental right of the Member of Parliament on the floor of the House and in committee" (2). Maingot, in his classic text on Parliamentary Privilege in Canada, states, in speaking to the essential nature of freedom of speech, "No one in the free world will argue to the contrary" (3). Freedom of speech is expressly guaranteed by article 9 of the English Bill of Rights of 1689, which states that: "... the freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place outside of Parliament (4)."

While the Bill of Rights does not expressly apply to Canada, the principles enunciated therein form part of our law by virtue of the preamble to the Constitution Act, 1867 which provides that we shall have a "Constitution similar in Principle to that of the United Kingdom".

Erskine May defines the privilege of freedom of speech as follows: "Subject to the rules of order in debate ..., a Member may state whatever he thinks fit in debate, however, offensive it might be to the feelings, or injurious to the character, of individuals; and he is protected by his privilege from any action for libel, as well as from any other question or molestation." (5)

There is lengthy judicial precedent for the proposition that the absolute immunity afforded members applies only to statements made within the legislature. As stated by Maingot, "Parliament protects him when he speaks in Parliament, but when he speaks outside, or publishes outside what he says inside Parliament, Parliament offers no protection; only the common law does, if it is offered at all". (6) In explaining this principle, the Ontario High Court, in a decision affirmed by the Supreme Court of Canada, stated as follows:

The purpose of the privilege is to protect freedom of speech and debate in Parliament but not, surely, to allow individual members to say what they will outside the walls of the House, to persons who are not members or even spectators of the proceedings inside. …