Parliamentary Privilege Does Not Always Reign Supreme

The next few years are likely to reveal further insight into the demarcations between the judiciary and the legislature, given the election of the right-leaning political parties in Canada’s largest provinces.

With the introduction of Bill 31 in Ontario, the government justified it no no small part on the basis of parliamentary privilege. House Leader Hon. Todd Smith cited the House of Commons Procedure and Practice as the basis for the Bill during the debate on Sept. 1, 2018 as follows:

The exclusive right of the House of Commons to regulate its own internal affairs refers especially to its control of its own agenda and proceedings. For example, courts or other institutions cannot direct the affairs of the Commons, even when it may be in the interests of justice that cases pending before the courts not be discussed in a manner that might prejudice the outcome of such cases.

The direction that he referred to was of course the controversial Belobaba decision, but his rationale outside of this was legally suspect, claiming that the privilege of the legislature was violated because the legislature has the sole authority to make determinations of matters under s. 92(8) of the Constitution Act, 1867. The assertion that the government is in fact immune from Charter scrutiny is one that should be enormously troubling.

Close on the heels of this was the election of Coalition Avenir Québec (CAQ) in Quebec, with Premier-elect François Legault immediately indicating his willingness to invoke s. 33 of the Charter in his plans to ban all religious symbols and garments in public office. Although Quebec has a long history of invoking s. 33 as a form of protest to the creation of the Charter, this ended in 1987 and it has been used much more sparingly since. Legault’s reference immediately after the election signals the intent of right-leaning populist governments to assert the authority of parliament wherever possible.

This week, the Supreme Court of Canada released its decision in Chagnon v. Syndicat de la fonction publique et parapublique du Québec, dealing with an appeal regarding the decisions by the President of the National Assembly of Québec. The President, which is known in other jurisdictions in Canada as the Speaker, had dismissed three security guards for their surreptitious use of surveillance cameras to look into rooms of an adjacent hotel. The union grieved this dismissal under the Act Respecting the National Assembly (ARNA), and the President objected to the grievance and its subsequent review on the basis of parliamentary privilege.

The Court provided three separate decisions; Justice Karakatsanis upheld the decision by the Court of Appeal that the dismissals were not protected by parliamentary privilege, Justice Rowe’s concurrence agreed for different reasons, and the dissent was provided by Justices Côté and Brown.

Perhaps it’s because the Court’s collective mind is on the upcoming uppeal in Bell Canada v. Canada (Attorney General), where the Court will be revisiting the principles of review in Dunsmuir, but all of the decisions agreed that the appropriate standard of review was correctness. Where they disagreed was in the application of this standard, thereby also potentially providing insight into where the Court may go with the future of administrative law.

The majority and the concurrence relied upon the Court’s decision earlier this year in Canada (Canadian Human Rights Commission) v. Canada (Attorney General)

[27] This Court has for years attempted to simplify the standard of review analysis in order to “get the parties away from arguing about the tests and back to arguing about the substantive merits of their case”…

To this end, there is a well-established presumption that, where an administrative body interprets its home statute, the reasonableness standard applies…

[28] The presumption may be rebutted and the correctness standard applied where one of the following categories can be established: (1) issues relating to the constitutional division of powers; (2) true questions of vires; (3) issues of competing jurisdiction between tribunals; and (4) questions that are of central importance to the legal system and outside the expertise of the decision maker (Capilano, at para. 24; Dunsmuir, at paras. 58-61). Exceptionally, the presumption may also be rebutted where a contextual inquiry shows a clear legislative intent that the correctness standard be applied…

…

[42] …Dunsmuir recognized that the correctness standard of review can apply to questions of law that are both of central importance to the legal system as a whole and outside the decision maker’s specialized area of expertise (paras. 55 and 60). Since Dunsmuir, this category of correctness review has been applied only twice by this Court… Indeed, this Court has repeatedly rejected a liberal application of this category…

[citations omitted]

The majority emphasized that not only do labour arbitrators lack specialized expertise in parliamentary privilege, the conclusions in this case would have implications for all legislative bodies in Canada.

The dissent agreed with the forgoing, but added that the correctness standard was appropriate because the existence and scope of parliamentary privileges raised a constitutional issue,

[87] …It is well established that the standard of review applicable to “other constitutional” issues is correctness “because of the unique role of . . . courts [mentioned in s. 96 of the Constitution Act, 1867] as interpreters of the Constitution”…The same can be said of issues relating to the Assembly’s inherent, historical privilege to exclude strangers from its precincts, as well as the impact of the ARNA on parliamentary privileges. Since all of these issues concern the separation of powers among state institutions, they are constitutional in nature, and the correctness standard must apply.

[commentary in the original]

Although s. 96 of the Constitution Act does not explicitly mention this role, this understanding can be found at para 58 of Dunsmuir, which itself was gleaned from Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur,

31 Third, administrative tribunal decisions based on the Charter are subject to judicial review on a correctness standard: see Cuddy Chicks, supra, at p. 17.  An error of law by an administrative tribunal interpreting the Constitution can always be reviewed fully by a superior court. In addition, the constitutional remedies available to administrative tribunals are limited and do not include general declarations of invalidity. A determination by a tribunal that a provision of its enabling statute is invalid pursuant to the Charter is not binding on future decision makers, within or outside the tribunal’s administrative scheme. Only by obtaining a formal declaration of invalidity by a court can a litigant establish the general invalidity of a legislative provision for all future cases. Therefore, allowing administrative tribunals to decide Charter issues does not undermine the role of the courts as final arbiters of constitutionality in Canada.

[emphasis added]

However, the legislature is not an administrative tribunal, and there are important distinctions between the judicial review of a tribunal’s decision and that of the legislature. Parliamentary privileges flow from the nature and function of the Westminster model, and are shielded from review by the courts even on Charter grounds.

The majority’s approach was to ensure that any inherent privileges are limited to those necessary function of legislative bodies to fulfil their constitutional function of vigorous debate of laws and holding the executive accountable. Historically they developed as a response to the Crown or state authorities penalizing members of parliament for their statements and actions in the House.

Justice Karakatsanis referred to the Court’s decision in Canada (House of Commons) v. Vaid, where a chauffeur to the Speaker of the House of Commons challenged his dismissal on the basis of human rights to the Human Rights Commission. The Court in Vaid listed a dozen examples of parliamentary privilege, which were previously identified in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), and employed what the majority would refer to as a “necessity test” as follows:

46…In order to sustain a claim of parliamentary privilege, the assembly or member seeking its immunity must show that the sphere of activity for which privilege is claimed is so closely and directly connected with the fulfilment by the assembly or its members of their functions as a legislative and deliberative body, including the assembly’s work in holding the government to account, that outside interference would undermine the level of autonomy required to enable the assembly and its members to do their work with dignity and efficiency.

[emphasis added]

What distinguished Vaid from the current case was the scope of the parliamentary privilege. Whereas the Court in Vaid refrained from scrutinizing the Speaker’s actions, even though the allegations were based in human rights, because any actions by the House could then be circumvented by the mere allegations of a violation.

The majority rejected a categorical privilege of all aspects of management of employees to all functions these employees performed, as this did not meet the necessity test. They also found that this privilege may interfere with the s. s. 2(d) Charter rights of these employees. This comment is of interest because the Court’s review in New Brunswick Broadcasting Co also dealt with (s. 2(b)) Charter rights, but upheld the decision of the Speaker to exclude the media on the basis that it would interfere with the decorum and efficaciousness of the proceedings. The distinction was that the privilege was asserted on the basis of function.

The President also attempted to justify this parliamentary privilege on the power to exclude strangers, which has deep historic roots and is immune from external review. A recent example of this power in Ontario is the Speaker’s decision to exclude the public during the debates on Bill 31 due to numerous interruptions.

The security guards in question are the same ones who would responsible for implementing this power. In applying the necessity test, the scope of parliamentary privilege did not to be so broad as to include the dismissal of employees who implement this privilege.

Although the concurrence agreed with the outcome of the majority, Justice Rowe did so on the basis of the governing statute,

[59] …When a legislative body subjects an aspect of privilege to the operation of statute, it is the provisions of the statute that govern. While the relevant statutory provisions remain operative, a legislative body cannot reassert privilege so as to do an end-run around an enactment whose very purpose is to govern the legislature’s operations.

The National Assembly itself has defined in ARNA how employees are to be managed, including their inclusion as civil servants unless otherwise derogated from the Public Service Act. Because the derogation procedure was not exercised for these employees, Justice Rowe held that the National Assembly cannot now reassert privilege. In other words, government should follow it’s own statute, and shouldn’t attempt to rely on privilege when failing to do so.

The dissent emphasized the importance of security staff to the National Assembly, referring to the 1984 attack by Denis Lortie. Essential to the dignity and efficiency of constitutional functions of the legislative assembly is the ability to operate in a secure environment.

They held that parliamentary privileges are not an exception to the law, but a distinct pillar in the constitutional architecture. The dissent characterized parliamentary privileges not as a tool for protecting independence of the legislative assembly, but what has allowed them to exist. On that basis, the dissent concluded that any decisions that relate to security cannot be challenged in or reviewed by a court or tribunal.

This exceptionally broad example of deference, posited in a colourful backdrop of a terrorist attack, is substantiated on the grounds of security, without any issues of threats to security being raised. The conduct of the security guards was likely disciplinable, but did not constitute any threat to the security of the National Assembly.

In doing so, the dissent referred to the Court’s statement in New Brunswick Broadcasting that the judiciary has limited jurisdiction in this area, and that each specific instance of privilege need not be shown to be necessary. They also cited Harvey v. New Brunswick (Attorney General),

Because parliamentary privilege enjoys constitutional status it is not “subject to” the Charter, as are ordinary laws. Both parliamentary privilege and the Charter constitute essential parts of the Constitution of Canada. Neither prevails over the other. While parliamentary privilege and immunity from improper judicial interference in parliamentary processes must be maintained, so must the fundamental democratic guarantees of the Charter. Where apparent conflicts between different constitutional principles arise, the proper approach is not to resolve the conflict by subordinating one principle to the other, but rather to attempt to reconcile them.

[emphasis in the original]

Instead of the necessity test, the dissent applied a “sphere of influence activity,” and found these activities to be necessary to the proper functioning of the Assembly,

[133] In light of the fact that both the Assembly and the Parliament of Canada have been the victims of armed attacks in our recent history, we have no difficulty concluding that security is essential to the proper functioning of legislative assemblies. In a parliamentary democracy, there can be no free debate without security. Security is one of the spheres of activity necessary to proceedings in an assembly. This view is not controversial. Indeed, it is shared by our colleague Karakatsanis J. (para. 38), the majority of the Quebec Court of Appeal (para. 79) and Morin J.A., dissenting (paras. 101‑02). It should be borne in mind that the coercive power of the Assembly, which has historically been vested in the sergeant‑at‑arms, has been recognized by the courts as being essential to its functioning. The guards’ tasks therefore fall within a sphere of activity “so closely and directly connected with the fulfilment by the assembly or its members of their functions as a legislative and deliberative body, including the assembly’s work in holding the government to account, that outside interference would undermine the level of autonomy required to enable the assembly and its members to do their work with dignity and efficiency”: Vaid, at para. 46

The dissent also noted that express language from ARNA was not required for derogation, but rather clear and unequivocal legislative intent to depart from parliamentary privileges, especially when the provisions concerned contain ambiguity. In this context, the interpretation of the President over this ambiguity should be preferred.

The next 4 years is certain to see further debates over this delineation between the legislature and the judiciary, the next mandatory retirements are not until 2021 (Abella) and 2022 (Moldaver), both of whom are from Ontario.

This case is yet another reminder that all forms of power, especially in a democracy, should have some limits and checks and balances in place. The Canadian judiciary has played a particularly important role in our country in limiting the scope of executive and legislative action as it relates to security issues. Parliamentary privilege, without any limits to its potential scope, would be just another exercise of power without this ability of review.