Who Gets to Cover Parliament and the Legislatures? A Legal Analysis

The press gallery function is more than a commercial news reporting service. It is an integral part of our work; a service which Parliament must safeguard for the Canadian public who are entitled as of right to the fullest information of activities here.

–House of Commons Speaker James Jerome, 1976 [1]

Introduction

The Parliamentary Press Gallery plays an integral part in the national political discourse. Journalists do more than simply record debate in the House of Commons and the Senate. They synthesize and contextualize these debates, along with facts and arguments from legislative committee hearings, press conferences, reports of Parliamentary officers such as auditors general, and other events that take place in connection with Parliament for the benefit of readers and viewers. When done with accuracy and fairness, journalism also provides important feedback to Members of Parliament, the executive, and the senior bureaucracy.

Journalism is in transition. Mass media operations, with their large staffs and deep pockets, are shrivelling. More online-based start-ups, many them operated by journalists themselves as sole proprietorships or small companies, are proliferating. Press galleries at Parliament and legislatures are increasingly being asked for accreditation by start-up new media companies, bloggers, specialist analysts writing only online, “click bait” pop culture web sites and other organizations that have evolved in the past three decades.

There are some sound reasons for limiting membership in the Parliamentary Press Gallery to carefully-vetted journalists. Security of MPs, ministers, senior political staffers and government officials requires some control over who is able to enter and freely move around the Parliament buildings. Press Gallery members also receive publicly-funded services such as mail boxes, press release distribution, and access to the Library of Parliament, which is normally not open to the public. The gallery also has a limited amount of free work space. Active members of the Parliamentary Press Gallery – journalists who have the top tier of membership – also obtain free parking, use of the House of Commons gymnasium, access to the Parliamentary Dining Room, and other perks. As well, they have the opportunity to travel with the Prime Minister on foreign visits.

The problem lies in establishing a fair, workable criteria for determining eligibility for membership in the Press Gallery. Until the age of the Internet, reporters posted to Ottawa simply showed Press Gallery executive members – in most cases, fellow journalists elected by the existing membership – proof they had been posted to the gallery by the newspaper, magazine, radio or television station that employed them. A few freelance journalists were accredited if they could prove covering Parliament and the Government of Canada was their primary livelihood. Freelance members of the Parliamentary Press Gallery were quite rare, and had usually already developed high profiles before applying for membership.[2]

The Internet complicates matters. Would-be self-employed journalists can now easily afford the capital costs of starting their own online media operations. In response, the Parliamentary Press Gallery has accredited some new media reporters as active members, but has refused membership to several political bloggers. Those who have been refused membership have very little recourse for decisions made in secret, and sometimes evidencing arbitrariness, bias and attempts to stifle competition. This paper explains how the country’s House of Commons Speakers have established a structure in which they allow press gallery executive members to be shielded by the Speaker’s  Parliamentary privilege while, at the same time, refusing to accept responsibility for the potential misuse of this privilege. The structure leaves frustrated applicants without a real right to appeal. Speakers’ privilege appears to the right to freedom of the press found in section 2(b) of the Canadian Charter of Rights and Freedoms. The Press Gallery has no checks on its power to accredit, and may, in fact, be stifling diverse, informed journalistic voices while favoring mainstream and traditional media.[3]

The “strangers” rule and Parliamentary privilege

In a 2003 ruling, House of Commons Speaker Peter Milliken warned the judiciary not to undermine Parliamentary privilege:

We have parliamentary privilege to ensure that the other branches of government, the executive and the judicial, respect the independence of the legislative branch of government, which is this House and the other place. This independence cannot be sustained if either of the two branches is able to define or reduce these privileges… The privileges of this House and its members are not unlimited, but they are nonetheless well-established as a matter of parliamentary law and practice in Canada today, and must be respected by the court. Judges must look to Parliament for precedents on privilege, not to rulings of their fellow judges since it is in Parliament where privilege is defined and claimed.[4]

In two cases, decided in 1993[5] and 2005,[6] the Supreme Court of Canada established the legal and constitutional framework for considering matters of Parliamentary privilege. The Court found in New Brunswick Broadcasting that parliamentary privilege – itself an offshoot of parliamentary supremacy — trumps s. 2 expression rights. This privilege was not defined, or even mentioned, in the British North America Act (1867) or the Constitution Act (1982) but the Court was willing to affirm that Speakers of the provincial legislatures and the two houses of Parliament had vast powers to exclude media under the “strangers” rule, which allows Parliament to decide who, if anyone, gets to sit in its galleries. The Court found “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.”[7] In Canada (House of Commons) v Vaid, the Court determined that it may be difficult to determine the scope of a privilege, (an area for the courts), and the appropriateness of its exercise (which is decided by the legislature). The “onus relies on the appellants (Parliament) to establish that the category and scope of privilege they claim do not exceed those at the passing of (the Parliament of Canada) Act (were) held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom… and by the members thereof.”[8]

The Supreme Court of Canada has recognized the following categories of privilege:

• Freedom of speech (for MPs)
• Control by the House over debates and proceedings
• Discipline of Members
• Discipline of non-members who interfere with the discharge of parliamentary duties
• Immunity of members from subpoena during parliamentary sessions
• The power to exclude strangers.[9]

The last category is relied upon by the Speaker of the House of Commons to assert control over media access to the Parliamentary precinct.

“Strangers,” in Parliamentary lexicon, are people who are not a member or an official of the House of Commons or the Senate who are present in their respective house while it is sitting.[10] They include diplomats, members of the public, political staffers and journalists who have designated seats in the galleries. No strangers are allowed on the floor of the House of Commons.[11] Parliament, from its earliest incarnations in the 13^th century, met in private. Until 1845, the British House of Commons excluded all strangers from its precincts. Afterwards, anyone in the galleries, including members of the press, could be cleared from the British House of Commons at the request of any member. This “strangers” rule was adopted by the Canadian House of Commons at Confederation, although in 1876, the rule was amended to require the support of the House of a non-debatable motion before strangers could be ordered out of the public galleries.[12] In 1994, the rule was amended again to allow the Speaker – without needing to seek the consent of the House – to clear the galleries if he chooses to do so.[13]

The Speaker’s power to exclude extends throughout the Parliamentary precinct. It was used in 1998 against Holocaust denier Ernst Zundel after Parliamentary Press Gallery staff had given him permission to hold a press conference in the Charles Lynch Theatre on the ground floor of the Centre Block.[14] The House of Commons then voted to ban Zundel from the Parliamentary precinct for the remainder of the year.[15] In 2007, the Speaker over-rode another decision of the Press Gallery, banning a white supremacist group after Press Gallery staff had given its members permission to hold a news conference in the same theatre.[16]

The source of the Press Gallery’s power to accredit journalists

Unfortunately, the record of early interactions between the Speakers and parliamentary reporters in Canada is hazy. The records of the Parliamentary Press Gallery were destroyed in the fire that devastated the Centre Block in 1916. Historians have determined reporters began covering the debates of the legislatures of Upper and Lower Canada in 1793 and, by the 1840s, the legislature of the Province of Canada came to rely on their reports to compile their own record of debates.[17] Journalists were given special seats in the legislature of the Province of Canada, the right to take notes, and working space (The Reporters’ Cave) by the 1850s, and something resembling – although not called – the Parliamentary Press Gallery did exist at Confederation.[18] The members of the legislature of the Province of Canada considered press coverage of their debates to be very important, as they subsidized the wages of newspaper reporters who covered their sessions.[19]

There is, however, no documentary proof of the time – if ever – that a Speaker of the House of Commons has delegated his or her privilege over “strangers” to the Parliamentary Press Gallery, nor any evidence of any Speaker giving direction of how that power should be used. In defence of the Press Gallery executive’s decision to refuse full membership to Ottawa newspaper publisher Robert Gauthier, counsel for the Speaker of the House of Commons acknowledged in 1999 to the United Nations Committee on Human Rights: “(T)here is no formal, official or legal relationship between the Speaker and the Press Gallery…The Speaker has no involvement with the day to day operation of these (gallery) facilities, which are independently run by the Press Gallery.”[20]  The Speaker admitted the relationship between him and the press gallery “is not formal, official or legal.”[21]

Of the major Westminster Parliaments – the United Kingdom, Ireland, India, Canada, Australia and New Zealand — only New Zealand’s has a set of accreditation rules agreed upon by the Parliament and the Speaker that show a sharing of power over journalist accreditation. In that Parliament, journalists must apply to the Speaker and to the executive of the Parliamentary Press Gallery for accreditation.[22] Australia’s Speaker has asserted his right to be the final arbiter in disputes over membership in the Press Gallery.[23] In the United Kingdom, journalists are accredited by members of the Speaker’s staff, without input from the Parliamentary Press Gallery. Any publication that wants to assign journalists to the Press Gallery must be approved by Parliamentary officials, and are then allotted a set number of passes. The journalists seeking to use these passes must pass a security screening.[24] In Ireland, the Chairman of the Press Gallery provides a “Lobby List” to the Superintendent of the House. The gallery has autonomy over its own affairs, and is supplied office space, desks, telephones and parking spaces which the executive then doles out to its members.[25]

Challenging the Present Accreditation System

The Question of the Day: What is a Journalist?

In its bylaws, the Canadian Parliamentary Press Gallery Constitution describes its criteria for membership:

Active membership in the Corporation shall be open only to journalists, photographers, camerapersons, soundpersons, and other professionals whose principal occupation is reporting, interpreting or editing parliamentary or federal government news, and who are assigned to Ottawa on a continuing basis by one or more newspapers, radio or television stations or systems, major recognized news services or magazines which regularly publish or broadcast news of Canadian Parliament and Government affairs and who require the use of Gallery facilities to fulfil their functions.

For the purposes of this By-law, the following words shall have the following meanings:

(a)   “Newspaper” shall mean any newspaper which is published on a regular and continuing basis;

(b)   “radio or television broadcasting station or system” shall mean any radio or television stations or system making regular broadcast of news and comment inside or outside of Canada;

(c)   “major recognized news service” shall mean any organized journalistic service engaged primarily in the supply and transmission of news to the media organizations defined elsewhere in these By-laws.[26]

Nothing in these bylaws gives the Press gallery executive the authority to accredit journalists from online-only publications such as Vice, Buzzfeed, iPolitics, Blacklock’s Reporter and other news sites, but journalists from all of those organizations have been given memberships. Journalists from very partisan web sites such as Rabble.ca have also been accredited.

In their bylaws, the Press Gallery avoided defining journalists and journalism, thereby dodging a problem that has vexed many scholars. Journalists sometimes call themselves professionals, but what they do requires no formal training, and they are not bound by the rules of any licensing agency. In effect, to be a journalist, all one has to do is engage in the work of journalism. To qualify for membership in the Parliamentary Press Gallery, that work, directed at covering Parliament and the Government of Canada, must constitute the journalist’s “primary occupation.” Presumably, to the Press Gallery, “journalism” is a paying occupation, rather than an endeavor, and when done free of charge or at less than subsistence wages – say, by a pensioner or well-off volunteer — is not journalism that warrants full-time access to Parliament.

The Parliamentary Press Gallery also refuses to accredit authors of political books, even in the very rare cases of writers whose main occupation is writing books about the federal government. The Gallery’s former Chief Clerk told the executive that the Library of Parliament did not want authors to receive accreditation.[27]

The Canadian Association of Journalists has not been able to come up with an agreed-upon definition of journalism or journalist, but has workshopped the idea that “journalism” is a sort of verb, rather than a noun. It has focussed on three aspects of the work involved in creating journalism:

“1) Purpose: An act of journalism sets out to combine evidence-based research and verification with the creative act of storytelling. Its central purpose is to inform communities about topics or issues that they value…

2) Creation: All journalistic work — whether words, photography or graphics — contains an element of original production…

3) Methods: Journalistic work provides clear evidence of a self-conscious discipline calculated to provide an accurate and fair description of facts, opinion and debate at play within a situation…

• A commitment to researching and verifying information before publication.
• A consistent practice of providing rebuttal opportunity for those being criticized, and of presenting alternate perspectives, interpretations and analyses.
• The use of plain language, and story-telling techniques, as a means to attract a broad rather than an expert audience.
• An honest representation of intent to sources.
• A practice of conveying the source of facts.
• A practice of correcting errors.”[28]

The American Press Institute has set out what it sees as the elements of journalism:

• Journalism’s first obligation is to the truth. It must provide people with reliable, accurate facts gathered and related in a professional way.
• Journalism’s first loyalty is to the truth. Journalists and proprietors of journalistic enterprises must be aware of the public interest and be willing to put the truth ahead of their own self-interest or assumptions.
• Journalism is a discipline of verification. While a person can never be completely neutral or objective, a journalist uses objective methodology. This includes using professional-level research skills and gathering information from multiple sources.
• Its practitioners must be independent of the people they cover.
• Journalism must serve as a monitor of power.
• It must provide a forum for public criticism and for debate that can result in compromise.
• It must strive to keep the significant interesting and relevant,
• It must keep the news comprehensive and proportional.
• Its practitioners must be allowed to exercise their personal conscience.[29]

These elements are not rules and are not binding on journalists. In the 1970s and 1980s, UNESCO tried to develop an accreditation system for its press card, but its efforts were shot down. The International Federation of Journalists (IFJ) will issue a press card only to people who are already accredited by a national press agency or press union that are members of the IFJ.[30] In Canada, the only members of the IFJ are the trade union Unifor and the Federation National des Communications, the Quebec media association.

  IV(ii) New Media

Nothing in the criteria set out above, except, arguably, the Press Gallery’s principal occupation rule, stands in the way of any new media entrepruer who wants to apply for membership. The Parliamentary Press Gallery executive, in closed sessions, makes binding decisions on whether people are qualified to use its facilities to cover the House of Commons, the Senate and the Supreme Court of Canada. It has accredited Rabble.ca, Buzzfeed, Vice, and other online publications but refused to accredit conservative blogger Stephen Taylor of “Blogging Tories”. At least once, members of the Press Gallery have intervened to prevent Taylor, who had entered the Centre Block of the Parliament Buildings, from engaging in reporting. Taylor publicized his run-ins with the Press Gallery but took no legal action to try to get accreditation.[31]

Challenges by mainstream media to accreditation decisions of the  Press Gallery

W.H. Kesterton, in the History of Journalism in Canada, cites four cases in which the Speaker has reviewed appeals by reporters who were denied membership by the Canadian Parliamentary Press Gallery: J. Lambert Payne of the Brantford Expositor (1929), Donald Buchanan for Saturday Night (1933), E.C. Buchanan of the Quebec Chronicle-Telegraph (1938), and Raymond Spencer Rogers of the St. Catharines Standard (1963). In all of these cases, the various Speakers upheld the decision of the Press Gallery executive.[32]

Speaker James Jerome did take an active role in the Canadian Press replacement workers dispute in 1977. The Canadian Press wire service, which had been targeted with a legal strike, asked for accreditation of journalists to do the work of the striking members of its parliamentary bureau. Most Press Gallery executive members wanted to bar the replacement workers by refusing them accreditation. Jerome met separately with Canadian Press executives and union leaders to try to work out a compromise. When that failed, Jerome wrote an open later explaining why he would not interfere in the Press Gallery executive’s decision, which was condemned by the International Press Institute as an affront to freedom of expression.[33]

After the strike, the Press Gallery commissioned a report from long-time member and former MP Douglas Fisher. “Several questions come to mind. Should the Speaker be the ultimate authority for establishing both the facilities and who has access to the facilities for news about the federal government in the broadest sense? Would the House and the Senate together give him that kind of authority; and if it considered it, the further delegation of that authority to the Press Gallery as an association, particularly if the reality of this association is primarily one where the members are surrogates for their employers?”[34] In the end, there was no change to the accreditation system, and the Speaker has, since that time, never overturned a decision of the executive committee of the Press Gallery.

IV(ii)  Challenge by “fringe” media

In the early 1980s, Robert Gauthier published one edition of a newspaper that he called National Capital News and distributed it in downtown Ottawa. He then sought membership in the Parliamentary Press Gallery. He was refused active membership by the gallery’s executive committee but was offered passes by the Press Gallery executive committee for days that he might want access to the House of Commons and Press Gallery facilities. Gauthier appealed the Press Gallery’s decision to the Speaker, but was turned down, without explanation. Gauthier applied to the Federal Court of Canada for judicial review of the Press Gallery’s decision but the court found it had no jurisdiction, since the Press Gallery is not part of the Government of Canada.[35] A complaint to the Competition Tribunal claiming gallery members had engaged in unfair restraint of trade was dismissed, with the tribunal citing parliamentary privilege.[36] Gauthier then launched an action in Ontario Court (General Division) claiming a violation of his s. 2 Charter rights and asking for $5 million in damages. On Nov. 30, 1994, that court ruled the decision by the Press Gallery was made in the exercise of parliamentary privilege, and therefore not subject to the Charter nor the review of the courts. Simultaneously to the General Division action, Gauthier took his case to the United Nations. At the UN’s Committee on Human Rights, Gauthier argued that his rights under Article 5, Paragraph 4 of the Optional Protocol to the International Covenant on Civil and Political Rights had been violated. Counsel for the Speaker of the House of Commons argued the decision was protected by Parliamentary privilege.

The UN committee found the actions of the Press Gallery and the Speaker violated article 19, paragraph 2 of the Covenant, and that under article 2, para 3(a) of the Covenant, “the State party is under the obligation to provide Mr. Gauthier with an effective remedy including an independent review of his application to have access to the press facilities in Parliament. The State party is under an obligation to take measures to prevent similar violations in the future.”[37] The decision had no force in law in Canada, and Gauthier continued to launch legal actions until 2007, losing once more at the Federal Court and the Competition Bureau.

Is a Parliamentary Press Gallery accreditation decision judiciable?

Vincent Kazmierski has argued the Speakers do not have an unchallengeable claim of privilege over Parliament. Citing the philosopher John Laws, he argues that higher constitutional rights exist in regards to Parliament than those that can be overturned – as a Standing Order can – by a majority vote of Parliament. These rules protect important democratic rights such as freedom of expression, and pre-date the Charter of Rights and Freedoms which the Supreme Court, in both New Brunswick Broadcasting and Vaid (above) found were trumped by Parliament’s ancient rights. Kazmierski argues these rights are, like Parliament privilege, embedded in the pre-British North America Act Constitution.[38]

In 1935, the newly-elected Social Credit government of Alberta passed several laws meant to put its campaign platform into force. Party members complained bitterly that Alberta’s newspapers were biased against them. The Alberta Press Act allowed for censorship of the press, gave the government the right to force newspapers to print press releases disguised as news articles, suspended the right to sue Social Credit officials for libel, and allowed the government to suspend newspapers for breaking its rules. As Kazmierski notes, in the subsequent reference of the press law (along with several other pieces of legislation related to economic matters) the Supreme Court was asked to determine if there was a freedom of political speech right that could be  inferred from the Constitution Act, 1867. Chief Justice Sir Lyman Duff found the province’s right to limit speech “is reached when the legislation effects such a curtailment of the exercise of the right of public discussion as substantially to interfere with the working of the parliamentary institutions of Canada as contemplated by the provisions of the B.N.A. Act and the statutes of the Dominion of Canada.”[39] This can be taken as an affirmation of press rights, but it also left the door open to federal curtailment of these same rights, as the Court determined regulation of the press was a federal power. Parliament had implied such was the case when it passed the War Measures Act in 1914, which delegated to the government the power to impose, by regulation, a draconian wartime press censorship system.[40] However, in Switzman v Elbling, Justice Abbott, concurring with the majority, argued Parliament’s efficacy rested on public discourse of important issues, and no level of government  should “abrogate [the] right of discussion and debate.”[41] The issue might turn on whether it is necessary to give a journalist – or someone claiming to be one – physical access to the House of Commons. The Speaker, in the Gauthier case at the UN, claimed anyone could cover Parliament by watching its televised debates. The Committee on Human Rights rejected that argument, saying journalists who were not given access equal to that of other journalists had their expression rights curtailed.

Kazmierski argues convincingly that Parliamentary supremacy has been defined in an over-broad way by Canadian courts. Have they simply used legislative privilege as a way to dodge sticky problems that pose a quandary to everyone involved, from journalists themselves to executives and membership committees of press galleries to parliamentary staff and Speakers, of defining journalists and identifying which of the self-identified journalists should have access to the facilities of Parliament?

At first glance, the argument that the refusal to give access to Parliament to a person identifying themselves as a journalist is a violation of their freedom of expression rights enshrined in s. 2(b) of the Charter of Rights and Freedoms seems quite strong. This argument is similar to the one Gauthier successfully advanced at the United Nations. In Canada, however, the Supreme Court’s decision in New Brunswick Broadcasting appears to show the rights of Parliament trump the Charter rights of individuals.

In New Brunswick Broadcasting, the Supreme Court affirmed earlier rulings that courts could inquire into the existence and extent of a claimed parliamentary privilege but, once it finds that the privilege exists, it cannot rule on the way that privilege is exercised. Lamer, C.J., writing for the majority, noted:

The issue is not the way in which the Speaker has chosen to exercise a conceded constitutional power.  Indeed, it is accepted that where power is conferred on a legislative body by inherent privilege, the courts cannot, by the nature of that privilege itself, enquire into the manner in which it is exercised.  The issue is ‑‑ indeed the issue can only be ‑‑ whether the Assembly has a constitutional power to exclude strangers from its deliberations.  If this Court were to rule that the Assembly could not do this, this Court would be taking away a constitutional power possessed by the Assembly.  At issue, in other words, is the constitutional “tree” itself, rather than the fruit of the tree.  It is therefore no answer to a claim for constitutional privilege to say that it constitutes the mere exercise of a constitutional power. I conclude that the legislative assembly having acted within its constitutional powers, the Charter does not apply to its conduct.[42]

As well, in a Canadian court, the Speaker (or the Press Gallery) might argue that failure to accredit does nothing to prevent a person from using the real-time broadcasts of Parliament and the voluminous data on Parliamentary committees posted on the Internet to engage in Parliamentary journalism or to say what they like about Parliamentary debates.

Parliament is, in its own right, a court, and Canadian courts have ruled that all courts must – except in the most exceptional circumstances – be open to the public. Canadian courts do have the power to determine whether people who attend their sessions can take notes and tweet snippets of testimony, and they can determine whether someone holding themselves out to be journalists can use court facilities such as press rooms. Unfortunately, the Supreme Court of Canada’s practices are of little help to anyone who would consider comparing its accreditation practices with those of the House of Commons, as the Supreme Court relies on the Parliamentary Press Gallery to accredit reporters who want to use its press room and take part in its off-the-record briefings on newly-released cases.[43]

­Conclusion

The Speaker of the House of Commons (along with those of the Senate and provincial legislatures) control Parliament’s ancient privilege to exclude strangers. Speakers of the House of Commons have delegated that power to the Parliamentary Press Gallery, which, in turn, vests is elected executive with responsibility for deciding which journalists are eligible for membership. Speakers have, though the years, insisted that the final decision belongs to the Press Gallery. The Speaker has upheld every recorded accreditation decision made by the Press Gallery. When the system has been challenged in court and at the United Nations, the Speaker has cloaked the Press Gallery in parliamentary privilege, protecting it from any arguments made against them in constitutional, administrative, and competition law.

Before the advent of the Charter and the Internet, complaints were relatively rare, and when they were made, even by reporters assigned to Parliament by mainstream media, once appeals were made to the Speaker, the issue went no farther. Unless the Supreme Court is willing to parse its logic in Vaid and New Brunswick Broadcasting, anyone who would advance a Charter argument to appeal an accreditation by the Parliamentary Press Gallery would likely be disappointed, in light of the New Brunswick Broadcasting decision. While Robert Gauthier, a self-represented litigant with a one-off publication, would not be the plaintiff of choice in an action challenging the present accreditation rules, his cases did show courts and tribunals accepted the Speaker’s claim that parliamentary privilege makes decisions by the Press Gallery – using power delegated at some unknown time by the Speaker – non-judiciable.

As the means of doing journalism continue, because of the Internet, to become less and less expensive, and means of monetizing journalism become available to more people, the present system may face legal challenges that spur the Supreme Court to re-think New Brunswick Broadcasting.

bliography

Books

Mark Bourrie, The Fog of War: Censorship of Canada’s media in World War II. Vancouver: Douglas & McIntyre, 2012.

Jeffrey Keshen, Censorship and Propaganda during Canada’s Great War, Vancouver: UBC Press, 1993.

Allan Levine, Scrum Wars: The Prime Ministers and the Media. Toronto: Dundurn, 1993.

May, Erskine, A Treatise Upon the Law, Privileges, Proceedings and Usage of Parliament, South Hackensack, New Jersey: Rothman Reprints Inc., 1971 (reprint of 1st ed., 1844).

Cases

Canada (House of Commons) v Vaid, [2005] 1 S.C.R. 667, 2005 SCC 30.

New Brunswick Broadcasting v Nova Scotia (Speaker of the House of Assembly), [1993] 1 SCR 319.

National Capital News v Milliken, 2002 Comp. Trib. 41, and National Capital News v Speaker of the House of Commons, 2007 Comp. Trib. 23.

Reference re Alberta Statutes – The Bank Taxation Act; The Credit of Alberta Regulation Act; and the Accurate News and Information Act, [1938] SCR 100, [1938] 2 D.L.R. 81.

Robert W. Gauthier v. Canada, Communication No. 633/1995, U.N. Doc. CCPR/C/65/D/633/1995 (5 May 1999).

Switzman v. Elbling, [1957] SCR 285, 7 DLR (2d) 337.

Articles

Vincent Kazmierski, “Draconian But Not Despotic: The ‘Unwritten Limits of Parliamentary Sovereignty in Canada” (2010) 41 Ottawa Law Review at 263-267.

Keven Rafter, “Run Out of the Gallery: The Changing Nature of Irish Political Journalism. Irish Communications Review Vol. 11 (2009).

Parliamentary Publications

House of Commons Standing Order 14 (Journals of the House of Commons), June 10, 1994.

House of Commons Debates

Journals of the House of Commons

Elizabeth Nish, (editor), Debates of the Legislative Assembly of United Canada 1841-1867, Vol. 1 (1841) (Montreal: Centre de Recherche en Histoire Economique du Canada Francais) No publication date listed.

Media Articles

Charles Lynch, “Leading newsmakers caught in the middle.” Montreal Gazette, April 23, 1977.

Web Sites

American Press Institute: https://www.americanpressinstitute.org/journalism-essentials/what-is-journalism/

Constitution of the Parliamentary Press Gallery (version as of 2016).  http://press-presse.parl.gc.ca/html%20section/PDF%20Documents/CANADIAN%20PARLIAMENTARY%20PRESS%20GALLERY%20CONSTITUTION.pdf

Canadian Association of Journalists, “What is Journalism?” – CAJ Ethics Committee Report: http://www.caj.ca/?p=275

House of Commons Procedures and Practices, online: <http://www.parl.gc.ca/procedure-book-livre/document.aspx?sbdid=abbc077a-6dd8-4fbe-a29a-3f73554e63aa&sbpidx=4>.

Parliamentary Press Gallery (UK) “Frequently Asked Questions”: <http://www.pressgallery.org.uk/frequently-asked-questions-faqs/>.

Stephen Taylor, Press Shuts Down Blogger”: <http://www.stephentaylor.ca/2007/04/press-shuts-down-blogger/>.

Rules of the Parliamentary Press Gallery – Approved by the Speaker of the House of Representatives (Australia): <http://www.parliament.nz/NR/rdonlyres/ECD38A8D-56FFaA1E-BD41- >.

Unpublished Material

Elizabeth Nish, Canadian Hansard: Interpreting the Canadian Parliamentary Press During the Period of Canadian Union. Unpublished Thesis, McGill University, Department of History, 1971.

Minutes of the Parliamentary Press Gallery Executive, October, 2015. Held in the files of the parliamentary Press Gallery, Rm. 350N Centre Block, Parliament Buildings, Ottawa, K1A 0A6

Doug Small, The Power and Jurisdiction of the Parliamentary Press Gallery. Unpublished research paper, Carleton University School of Journalism, Fall, 1977.

[1] James Jerome, Speaker of the House of Commons, in a statement to the House of Commons, Dec. 15, 1976. Quoted in Doug Small, The Power and Jurisdiction of the Parliamentary Press Gallery. Unpublished research paper, Carleton University School of Journalism, Fall, 1977, unnumbered facing page.

[2] Through most of its history, the press gallery had no freelance members at all. Wilfrid Eggleston, a former Toronto Star reporter and president of the gallery, returned as a freelancer in late 1944, after acting as the Director of Censorship during the Second World War. He stayed just a few months, before accepting an offer to establish Carleton University’s journalism school. See Mark Bourrie, The Fog of War: Censorship of Canada’s media in World War II. Vancouver: Douglas & McIntyre, 2012, Epilogue “Victory Day”, for an analysis of Eggleston’s post-censorship career. The number of freelancers increased during the 1980s as magazines began buying more articles from journalists who were not on their staffs. Eventually, trade magazines and, to a lesser extent, newspapers, began using much more material from freelancers. At the same time, the press gallery grew from about 50 members in 1945 to its peak of about 450 in the early 1990s. In those years, the gallery’s membership rules were loosened to allow magazine, radio, and television journalists to join. For a pre-Internet history of the press gallery, see Allan Levine, Scrum Wars: The Prime Ministers and the Media. Toronto: Dundurn, 1993.

[3] The issue is not confined to Ottawa. The online broadcast site TheRebel.media was denied access to the Alberta legislature by members of the Premier’s political staff in early 2016. The resulting negative publicity caused the provincial premier to hire retired journalist Heather Boyd to examine the provincial accreditation system. She recommended adopting the practices of the Ottawa gallery. At almost the same time, a one-person newsletter business was denied admission to the Queen’s Park press gallery. The owner of that site complained publicly but, at the time of writing, had taken no other action to overturn the decision.

[4] House of Commons Procedures and Practices, online: <http://www.parl.gc.ca/procedure-book-livre/document.aspx?sbdid=abbc077a-6dd8-4fbe-a29a-3f73554e63aa&sbpidx=4>.

[5] New Brunswick Broadcasting v Nova Scotia (Speaker of the House of Assembly), [1993] 1 SCR 319 [New Brunswick Broadcasting], in which the SCC ruled that a Charter argument could not be used to over-ride the assembly’s opposition to the filming of its debates. This was the case that defined the absolute privilege to exclude “strangers”, including journalists. This right was seen by the SCC as necessary to the proper function of the House.

[6] Canada (House of Commons) v Vaid, [2005] 1 S.C.R. 667, 2005 SCC 30 [Vaid].

[7] New Brunswick Broadcasting, supra note 5 at 384-5.

[8] Vaid, supra note 6 at para 22.

[9] Vaid, supra note 6 at para 10.

[10] In other words, a senator sitting in the gallery of the House of Commons is a “stranger” to the House of Commons, and a member of the House of Commons sitting in the gallery of the Senate is a “stranger” to the Senate.

[11] World leaders and other dignitaries who address the House of Commons do so while it is technically not sitting. The mace is not placed on the table during these sessions. Gen. Ander McNaughton, appointed Minister of Defence while not holding a seat in the House of Commons, was allowed to address the House in 1944. (McNaughton lost the subsequent by-election.) See Journals of the House of Commons, November 23, 1944, p. 926; November 24, 1944, p. 928. In 2008, First Nations and Metis guests were allowed onto the floor of the House of Commons to hear the official apology for the government’s role in residential schools, but the House was technically sitting as a Committee of the Whole.

[12] Erskine May, A Treatise Upon the Law, Privileges, Proceedings and Usage of Parliament, South Hackensack, New Jersey: Rothman Reprints Inc., 1971 (reprint of 1st ed., 1844), pp. 163‑4

[13] House of Commons Standing Order 14 (Journals of the House of Commons, June 10, 1994, p. 563).

[14] House of Commons Debates, June 4, 1998, pp. 7608‑9, 7616. Staff of the Press Gallery are actually paid by Parliament. The chief steward of the Parliamentary Press Gallery reports to the Sergeant at Arms of the House of Commons, who is responsible for security, including public access, of the parliamentary precinct.

[15] Journals of the House of Commons, June 4, 1998, p. 937.

[16] Journals of the House of Commons, October 17, 2007, p. 12.

[17] For an analysis of the importance of journalistic coverage of debates for the compilation of the debate record of the Province of Canada, see Elizabeth Nish, editor,  Debates of the Legislative Assembly of United Canada 1841-1867, Vol. 1 (1841) (Montreal: Centre de Recherche en Histoire Economique du Canada Francais) No publication date listed, Chapters I-IV.

[18] The history of legislative press coverage in Canada and its precursor legislatures is distressingly incomplete. By far, the best survey of pre-Confederation legislative journalism is Elizabeth Nish’s unpublished PhD thesis Canadian Hansard: Interpreting the Canadian Parliamentary Press During the Period of Canadian Union. McGill University, Department of History, 1971.

[19] Ironically, since this legislature made no transcripts of debates, these have been recreated from newspaper reports. See Elizabeth Nish, editor,  Debates of the Legislative Assembly of United Canada 1841-1867, Vol. 1 (1841) (Montreal: Centre de Recherche en Histoire Economique du Canada Francais) No publication date listed, Chapters I-IV.

[20] Robert W. Gauthier v. Canada, Communication No. 633/1995, U.N. Doc. CCPR/C/65/D/633/1995 (5 May 1999) at 4.6.

[21] Ibid at 11.2

[22] “Rules of the Parliamentary Press Gallery – Approved by the Speaker of the House of Representatives”, online: <http://www.parliament.nz/NR/rdonlyres/ECD38A8D-56FF-aA1E-BD41- >.

[23] Commonwealth of Australia, House of Representatives, Parliamentary Debates, May 14, 1980, 2694.

[24] Parliamentary Press Gallery (UK) “Frequently Asked Questions”, online: <http://www.pressgallery.org.uk/frequently-asked-questions-faqs/>.

[25] Keven Rafter, “Run Out of the Gallery: The Changing Nature of Irish Political Journalism. Irish Communications Review Vol. 11 (2009) at 96.

[26] Bylaw 4, Constitution of the Parliamentary Press Gallery (version as of 2016).  Available at http://press-presse.parl.gc.ca/html%20section/PDF%20Documents/CANADIAN%20PARLIAMENTARY%20PRESS%20GALLERY%20CONSTITUTION.pdf

[27] Minutes of the Parliamentary Press Gallery Executive, October, 2015.

[28] “What is Journalism?” – CAJ Ethics Committee Report found at http://www.caj.ca/?p=2752

[29] The definition and analysis behind it are available at https://www.americanpressinstitute.org/journalism-essentials/what-is-journalism/

[30] See list of IFJ members online: < http://www.ifj.org/nc/news-single-view/browse/39/backpid/59/category/top-news/article/unesco-world-press-freedom-day-2014-media-freedom-for-better-future/>.

[31] For Taylor’s description of the Press Gallery’s interference with his reporting, see “Press Shuts Down Blogger”, online: <http://www.stephentaylor.ca/2007/04/press-shuts-down-blogger/>.

[32] Wildred H. Kesterton, A History of Journalism in Canada. Toronto: McClelland and Steward, 1967, at 162-163.

[33] Charles Lynch, “Leading newsmakers caught in the middle.” Montreal Gazette, April 23, 1977. In his Dec. 1, 1976 letter to Speaker Jerome, William Heine, editor of the London Free Press and chairman of the Canadian section of the International Press Institute, said Jerome’s decision to allow the Press Gallery executive to bar strike-breakers “appears to establish the right of a trade union (directly or indirectly) to determine who may or may not report on what transpires in Parliament.” Quoted in Doug Small, The Power and Jurisdiction of the Parliamentary Press Gallery. Unpublished research paper, Carleton University School of Journalism, Fall, 1977, at 38. Jerome’s letter is at Appendix XXI.

[34] Douglas Fisher, A report on the ‘first loyalties’ – to the boss? Or to the Gallery?’ Report to Press Gallery president Bruce Phillips, April 12, 1977. Reproduced in Doug Small, The Power and Jurisdiction of the Parliamentary Press Gallery. Unpublished research paper, Carleton University School of Journalism, Fall, 1977.

[35] The Press Gallery is, however, incorporated under the federal Corporations Act. Gauthier did not make use this fact in any of his applications or lawsuits.

[36] Gauthier tried this tactic two more times. See National Capital News v Milliken, 2002 Comp. Trib. 41, and National Capital News v Speaker of the House of Commons, 2007 Comp. Trib. 23, both decided against Gauthier on the grounds of parliamentary privilege.

[37] Ibid at paras 15 and 16.

[38] Vincent Kazmierski, “Draconian But Not Despotic: The ‘Unwritten Limits of Parliamentary Sovereignty in Canada” (2010) 41 Ottawa Law Review at 263-267.

[39] Reference re Alberta Statutes – The Bank Taxation Act; The Credit of Alberta Regulation Act; and the Accurate News and Information Act, [1938] SCR 100, [1938] 2 D.L.R. 81.

[40] The same law was relied upon to create a print and broadcast censorship system in the Second World War. When the War Measures Act was proclaimed during the 1970 October Crisis, no censorship was imposed but dozens of journalists were arrested. For an analysis of the legal underpinnings of the First World War system, see Jeffrey Keshen, Censorship and Propaganda during Canada’s Great War, Vancouver: UBC Press, 1993. For an analysis of the Second World War censorship system and a comparison with the October Crisis, in which media was not censored but far more journalists were arrested,  see Mark Bourrie: The Fog of War: Censorship of Canada’s Media in World War II. (Vancouver: Douglas & McIntyre, 2012).

[41]Switzman v. Elbling, [1957] SCR 285, 7 DLR (2d) 337.

[42] New Brunswick Broadcasting, supra note 5 at 390.

[43]Personal communication with Remi Samson, Executive Officer of the Supreme Court of Canada, April 4, 2016.

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