Analysis: Silencing Sarah Jama diminishes Canadian democracy

Sarah Jama smiling and making a V shape with her fingers against a dark background

Censure might occasionally be necessary to preserve the integrity of a parliament, but using it to punish members for their personal views threatens the foundations of democracy, write Greg Flynn and David Said. (Photo by Chris Young/The Canadian Press)

Sarah Jama, the MPP for Hamilton Centre, is suing the Ontario government and Legislative Assembly after being censured in the legislature by members of the Progressive Conservative government.

On Oct. 23, the Ontario legislature passed a motion introduced by the government house leader, Paul Calandra, to censure Jama for remarks she made on social media regarding the ongoing war between Israel and Hamas. Jama called for a ceasefire in Gaza and labelled Israel’s actions as “apartheid.” In its motion, the government said her statements are “antisemitic and discriminatory.”

Ontario New Democratic Party Leader Marit Stiles also removed Jama from caucus on the same day. Jama now sits as an independent MPP.

Jama alleges that the censure contravenes her rights to freedom of expression and equality under the Charter of Rights and Freedoms. She also argues that it is an improper exercise of parliamentary privilege and an abuse of power.

Calandra’s motion took it one step further by also forbidding the Speaker of the legislature from recognizing Jama in debate until she retracts and apologizes for her remarks.

Calandra claimed the motion was necessary to protect the legitimacy of the legislature. He also argued that the parliamentary powers to discipline members maintain institutional respect and dignity. In other words, the motion to discipline Jama was presented to the legislature behind the shield of parliamentary privilege.

While legislators can and should hold elected members accountable for poor conduct, they must not let discipline turn into complete censorship.

The motion censures and silences Jama in the legislature. While censure might occasionally be necessary to preserve the integrity of a parliament, using it to punish members who express personal views outside of the legislature threatens the foundations of our democracy.

Can the courts get involved?

The Speaker’s authority to not recognize Jama must be based on statutory authority (i.e. legislation) or the constitutional principle of parliamentary privilege.

This potentially leaves two options for Jama. She could challenge the Speaker’s authority through Ontario’s Legislative Assembly Act, or she could challenge the authority of the Speaker as a matter of parliamentary privilege.

If the court accepts the statutory authority argument, then the Charter of Rights and Freedoms would likely apply to Jama’s case. This was articulated by the Supreme Court of Canada in Harvey v. New Brunswick.

If Jama is correct on this point and the Charter of Rights and Freedoms applies, this would mean that the Speaker’s refusal to recognize her is a clear and, quite frankly, inarguable violation of her democratic rights.

The only way the government of Ontario could justify violating the Charter would be to prove that the Speaker’s authorization to preclude Jama is reasonably justifiable in a free and democratic society.

Calandra speaking in the legislature with Doug Ford seated behind him
Government House Leader Paul Calandra introduced the motion to censure and exclude Sarah Jama from legislative proceedings. THE CANADIAN PRESS/Chris Young

Courts and parliamentary privilege

Parliamentary privilege is a constitutional principle that empowers legislators to fulfil their roles and functions. It also gives the legislature power to hold its elected members accountable for misconduct. And that is the basis of the Ontario government’s legal argument for justifying Jama’s exclusion.

The powers of parliamentary privilege are extremely complicated, especially when courts get involved. As legal expert Warren Newman explained: “Courts in Canada have struggled with the role and place of these privileges in the constitutional system.” Specifically, courts often struggle with determining their own role when reviewing matters that are inherently political — such as the exercise of parliamentary privilege.

Recent decisions by Canadian courts have reinforced the idea that courts should not interfere with the operations of legislative bodies. This was most recently articulated in the Supreme Court’s 2018 decision in Chagnon v. SFPPQ.

These judicial decisions, however, should not be interpreted to mean that legislatures can abuse their powers behind the shield of parliamentary privilege. It also does not mean that courts are completely prevented from reviewing how parliamentary privilege is used.

In fact, in Chagnon and other decisions, the Supreme Court confirmed courts can exercise their judicial review powers to determine whether or not legislative actions fall within the scope of parliamentary privileges. This will be an important determining factor for Jama’s case.

Possible implications for Sarah Jama

This case is significantly different from most of the published judicial decisions on parliamentary privilege. Previous judicial considerations of legislatures’ privilege powers have arisen within the context of excluding non-members of Parliament. For example, in New Brunswick Broadcasting Co. v. Nova Scotia the Supreme Court ruled that the legislature could exercise its parliamentary privilege to prevent an outside company from broadcasting the legislature’s proceedings.

In contrast, Jama’s case pits the parliamentary privilege of an individual member against that of the legislature as a whole. Another significant difference is that this case is about conduct that occurred outside of, and without any impact on, the legislative process.

The Canadian supreme court building.
The powers of parliamentary privilege are extremely complicated, especially when courts get involved. THE CANADIAN PRESS/Adrian Wyld

It is hard to see how comments made outside of the legislature that do not comment on the legislature or other legislators can impede the legislative process or bring the assembly into disrepute.

Jama’s actions should be distinguished from instances that clearly bring a legislature in disrepute, such as when Anthony Rota invited a former Nazi soldier to Canada’s House of Commons.

These important differences may also contribute to how Jama’s legal battle plays out.

Threatening Canadian democracy

While disciplining legislators is an established parliamentary privilege, the exact boundaries of what “discipline” means, or when it can be exercised, are also not clear. What is clear is that legislatures do not, as a general rule, prevent elected members from participating in their legislative functions for simply holding opposing views.

To silence a member for their political views — even if it was the wish of the majority — inexcusably violates the principles of parliamentary democracy. The motion to silence Jama and remove her rights to engage in political speech is a drastic and dangerous step.

Excluding Jama from the legislature prevents her from carrying out her duties and responsibilities as an elected member of the legislature. She is unable to participate in legislative debates, represent her constituents or attempt to hold the government accountable for any of its conduct. This is a violation of her parliamentary privilege.

If this exclusion is permitted to stand, it will set a dangerous precedent: that the legislature can silence democratically elected representatives because a majority of its members disagree with their political views.

This is not about whether we agree with Jama or not. The issue here is the potential for governments to undercut and diminish the principles of democracy. Especially when it comes to a government that has frequently defaulted on its commitment to freedom of expression.

As freedom of speech is inevitably at the heart of this political and legal issue, it is useful to recall John Stuart Mill’s warning:

“If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.”The Conversation

David Said, PhD Candidate/Researcher, Political Science, University of Guelph and Greg Flynn, Assistant Professor, Department of Political Science, McMaster University. This article is republished from The Conversation under a Creative Commons license. Read the original article.