The Ontario legislative assembly keffiyeh ban: Rights and parliamentary privilege

[Note: An earlier version of this post clumsily suggested the Supreme Court determined that parliamentary privilege was part of the “written” constitution - this is not the case. What the Court determined was that it is part of the definition of “Constitution of Canada” under s.52. The passage has been edited to convey this distinction more accurately]

In a move even Doug Ford opposes, the Speaker of the Ontario legislative assembly ruled that wearing a keffiyeh was prohibited because it was an “overt political statement.” The keffiyeh is traditional cultural garb in many parts of the Middle East, and yes, it has in recent decades also become a symbol of solidarity with Palestine.

But the decision is nonetheless a fatuous infringement of basic human rights, including equality, one that targets the keffiyeh for special treatment. As NDP Opposition leader Marit Stiles correctly noted, cultural and political clothing is routinely worn in the assembly, including traditional regalia from Indigenous and non-Indigenous cultures. The idea that there are “neutral” examples of this and others are “political” is complete nonsense. Indeed, the idea that the floor of a legislative assembly is somehow not the place for politics is simply incomprehensible.

If the Charter of Rights and Freedoms applied to the Speaker’s ruling, it would be an easy case, a clear violation of both equality rights and free expression. But the Charter does not apply, thanks to a decision of the Supreme Court (the 1993 New Brunswick Broadcasting case) that the parliamentary privilege of provincial assemblies is part of the “Constitution of Canada” and, as one part of the Constitution cannot override another part, you can’t bring a Charter challenge against a decision protected by parliamentary privilege.

Parliamentary privilege is the right of the provincial assembly to execute its constitutional functions and, at the institutional level, the right to decide for itself how it operates, against outside interference. In its origins, parliamentary privilege ensured protection against the Crown, to preserve the rights of Parliament and its members (who enjoy freedom of speech and the right against arrest or other interference from attending the Houses of Parliament, etc.). In the modern context, parliamentary privilege primarily serves to protect against judicial interference.

Yet there is an open question as to whether the Court was correct to determine that parliamentary privilege was indeed akin to the otherwise written, entrenched part of the Constitution (as opposed to other unwritten parts, like certain prerogative powers of the Crown). Indeed, it is not clear why either a legislative assembly or the individual members therein should be afforded the power to violate Charter rights or flout other laws.

Some will strenuously argue there are good reasons for the privileges to be absolute. For example, the free speech rights of members are essential to free and open debate in the assembly. This is why, for example, politicians are free from legal consequences even if they fraudulently defame individuals while speaking on the floor of the assembly or at committee.

Yet as the keffiyeh controversy shows, the freedom of speech of members is not an absolute freedom, because the assembly itself can limit or outright ban forms of expression it decides are impermissible.

Moreover, there is a rule of law issue here. It is not clear why the legislative assembly itself, or its members, shouldn’t be subject to upholding the fundamental rights we’ve enshrined in the constitutional text.

Yet this is the state of the law we are stuck with. And these days, relying on political figures to do the right thing, and avoid trampling on basic rights, seems too much to hope.