Chagnon v. Syndicat de la fonction publique et parapublique du Québec: Implications of the Supreme Court of Canada’s Decision for the Law of Parliamentary Privilege

Article 2 / 11 , Vol 43 No. 2 (Summer)

Chagnon v. Syndicat de la fonction publique et parapublique du Québec: Implications of the Supreme Court of Canada’s Decision for the Law of Parliamentary Privilege

The Supreme Court of Canada’s decision in Chagnon v. Syndicat de la fonction publique et parapublique du Québec is the most significant development in Canadian law regarding parliamentary privilege since Canada (House of Commons) v. Vaid, 2005 SCC 30. The Chagnon decision provides useful insights regarding the fundamental nature of parliamentary privilege, the management of employees, and when and how a statute may demonstrate Parliament’s intent to waive the application of privilege.

The Supreme Court of Canada’s decision in Chagnon v. Syndicat de la fonction publique et parapublique du Québec is the most significant development in Canadian law regarding parliamentary privilege since Canada (House of Commons) v. Vaid, 2005 SCC 30. The Chagnon decision provides useful insights regarding the fundamental nature of parliamentary privilege, the management of employees, and when and how a statute may demonstrate Parliament’s intent to waive the application of privilege.

Introduction

The Supreme Court of Canada’s decision in Chagnon v. Syndicat de la fonction publique et parapublique du Québec,1 rendered on October 6, 2018, is the most significant development in Canadian law regarding parliamentary privilege since Canada (House of Commons) v. Vaid, 2005 SCC 30. In a majority decision (six justices in the majority, one concurring, and two dissenting), the Supreme Court held that the dismissal of three security guards employed by the Quebec National Assembly was not protected by parliamentary privilege and could be challenged before a grievance arbitrator. Overall the decision reiterates the central role of parliamentary autonomy as a raison d’être for parliamentary privilege.

There are three main implications from the decision regarding the scope of parliamentary privilege in Canada. First, Chagnon reiterates that the demonstration of a claimed privilege’s necessity requires proof that immunity from outside review for a decision is necessary for Parliament to fulfill its fundamental role as a legislative and deliberative body. Second, Chagnon makes clear that, to date, the Supreme Court has not recognized privilege over the management of any parliamentary employees. Finally, the decision confirms that a statutory waiver of privilege must be explicitly expressed or at least inevitable in terms of outcome.

Background

Three National Assembly security guards who had inappropriately used the Assembly’s surveillance cameras to look inside the rooms of an adjacent hotel in Quebec City were subsequently dismissed by the President of the Assembly. Their union grieved their dismissal before a labour arbitrator in accordance with provisions in the Act respecting the National Assembly, CQLR, c. A-23.1 (ARNA) which regulates the operations of the Assembly. The President objected to the grievances, asserting that the decision to dismiss the guards was immune from outside review as it was protected by the parliamentary privilege over the management of employees and the parliamentary privilege to exclude strangers from the Assembly.

The arbitrator held that the dismissals were not protected by parliamentary privilege and that the grievances could proceed. The President applied to the Quebec Superior Court for judicial review, which allowed the application and held that the arbitrator did not have jurisdiction to decide the grievances due to parliamentary privilege.

The union appealed to the Quebec Court of Appeal, which allowed the appeal. In a 2-1 decision, the majority held that the privilege over the management of employees did not apply to the guards because their tasks were not closely and directly connected to the National Assembly’s deliberative and legislative functions. It concluded that it was not necessary for the President to have unreviewable authority over the management of the guards in order to ensure the proper functioning of the Assembly. In dissent, Justice Morin would have found privilege to apply, reasoning that guards provide front-line security services that are necessary for the Assembly to carry out its mandate.

The President appealed to the Supreme Court of Canada, which dismissed the appeal and confirmed that the matter could be grieved before a labour arbitrator.

Writing for the majority, Justice Karakatsanis rejected the argument that the dismissal of the guards fell under a parliamentary privilege for the management of staff or the exclusion of strangers. The majority reiterated the important role of privilege in preserving the separation of powers and the ability of legislative assemblies to fulfil their functions. The majority also recognized that the insulation from outside review that privilege provides is a key component of our constitutional structure and the law that governs it and confirmed that the establishment of an inherent privilege required the demonstration of the privilege’s necessity, and in particular, that the claimed immunity was necessary.

In concurring reasons, Justice Rowe agreed with the majority that the grievance could proceed but did so on the basis that any potential privilege had been waived by the adoption of the ARNA which regulates the operations of the Assembly. This conclusion was rejected by both the majority and the dissent on the basis that privilege could only be waived by express language or necessary implication, which were absent here.

In dissent, Justices Côté and Brown would have found that privilege applied to the management of the employees at issue and was not ousted by the adoption of the ARNA.

First Implication: The Nature of Parliamentary Privilege: The Necessity of Immunity/ Autonomy

The first implication of the Chagnon decision is a recognition that immunity from outside review is a key component of privilege and of our constitutional law. At its essence, parliamentary privilege is an expression of Parliament’s autonomy to regulate itself in order to ensure that it can properly discharge its constitutional functions (legislating, deliberating, and holding the government to account). The outside review of a decision falling under privilege is problematic because, even if a legislature’s decision were to be upheld, the fact of having been reviewed and confirmed by an outside body would have practical and symbolic impacts on the legislature’s dignity and ability to function.2

In Chagnon, the Supreme Court confirmed that parliamentary privilege is not outside the law but is an important part of the law, and indeed of the rule of law, as a central pillar of the constitutional architecture of Canada. Writing for the majority, Justice Karakatsanis reiterated the definition of parliamentary privilege found in Vaid, as “the sum of the privileges, immunities and powers enjoyed by the Senate, the House of Commons and provincial legislative assemblies, and by each member individually, without which they could not discharge their functions” (para 19, citing Vaid at para. 29(2)). She observed that parliamentary privileges “help preserve the separation and balance of power between the different branches of government” (at para 21) by enabling the legislative branch to hold the executive branch of government to account. Courts determine the existence and scope of a privilege, while the legislative branch has full control over determining whether the exercise of a privilege is necessary or appropriate (para 32)).

Necessity

In Canada, particularly in cases affecting the Charter rights of non-members of Parliament or a legislature, a purposive approach based on necessity is used to evaluate the existence and scope of a claimed inherent parliamentary privilege. Such an approach helps reconcile claimed privileges with individuals’ rights under the Canadian Charter of Rights and Freedoms. As noted by Justice Karakatsanis:

A purposive approach to parliamentary privilege recognizes the Charter implications of parliamentary privilege. It strives to reconcile privilege and the Charter by ensuring that the privilege is only as broad as is necessary for the proper functioning of our constitutional democracy (at para 28).

The majority reiterated that the party claiming the privilege has the onus of establishing its existence and that the establishment of an inherent privilege3 required a demonstration of the privilege’s necessity to the proper functioning of the assembly. Citing Vaid, the majority confirmed that to meet the necessity test, a claimed privilege must be

so closely and directly connected with the fulfillment by the assembly or its members of their functions as a legislative and deliberative body… 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) (para 29, citing Vaid at para 46).

In other words, immunity from outside review must be necessary for the assembly to fulfil its constitutional functions.

“Necessity” must further be assessed in the contemporary context. In other words, an inherent privilege can only continue to operate “if it remains necessary to the independent functioning of our legislative bodies today” (para 31). The party seeking to rely on an inherent parliamentary privilege and the immunity it provides must establish its necessity and “demonstrate that the scope of the protection it claims is necessary in light of the purposes of parliamentary privilege” (para 32).

Because immunity from outside review is a key component of privilege, this immunity must also be shown to be necessary in order for the necessity test to be met. Hence, it is not enough to show that a given activity is closely and directly linked with an assembly or legislature’s core functions. The majority confirmed that this is only part of the equation. It is just as important to demonstrate that the immunity being sought from the executive and judicial branches of government is necessary in 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” (Chagnon at par 41, citing Vaid at para 46).

In applying this test to the Assembly’s claim of privilege over the management of the guards, the majority framed the question as follows: “does the National Assembly require unreviewable authority over the management of security guards in order to maintain its ‘sovereignty’ as a legislative and deliberative assembly?” (at para 43)

A similar approach was taken to address the claim of a privilege over the exclusion of strangers. The majority confirmed that

the issue here is not whether the President has the power to delegate the exercise of the inherent parliamentary privilege to exclude strangers to the Assembly’s employees. Rather, it is whether the dismissal of employees who implement this privilege on the President’s behalf must be immune from external review for the Assembly to be able to discharge its legislative mandate. (At para 55, citing Vaid at para 56).

In the end, the majority dismissed both claims, finding that such an immunity from outside review had not been shown to be necessary.

In their dissent, Justices Côté and Brown suggested that more judicial deference should be given to legislative assemblies to assert the scope of their privileges.

Second Implication: Whither Parliamentary Privilege Over the Management of Employees

The second implication of the Chagnon decision is the clarification that the Supreme Court has not, as of yet, recognized a privilege over the management of any group of parliamentary employees.

The majority in Chagnon dismissed the claim of a privilege over the management of the security guards as it found that immunity from outside review of the guards’ dismissal had not been shown to be necessary.

In Vaid, the Supreme Court had dismissed a claim of privilege over the management of the Speaker’s chauffeur. However, writing for the unanimous court, Justice Binnie had stated that privilege ‘no doubt … attaches to the House’s relations with some of its employees’. This had been cited by proponents of a more narrow privilege over the management of key parliamentary employees.4

The majority in Chagnon downplayed this statement, stressing that the Vaid decision had not established the existence of any form of privilege over the management of employees and that the Court in Vaid had only concluded that the definition of a more limited category of privilege must await a case in which the question truly arises (para 35). Noting that the UK courts had not yet recognized the management of any employees to be protected by parliamentary privilege, the majority in Chagnon confirmed that Vaid had not determined whether privilege over the management of some employees existed. The majority likewise declined to answer the question of whether privilege could apply to the management of any employee.

As a result, while Justice Binnie’s statement in Vaid may have been seen as suggesting the existence of a narrower privilege over the management of some employees, the Chagnon decision makes clear that, to date, the Supreme Court has not recognized a privilege over the management of any employee.

Third Implication: The ARNA, Waiver and Parliamentary Privilege

The third implication is a recognition that a statutory waiver of privilege will require an express or an inescapable removal of the immunity from outside review provided by privilege. However, the statutory removal of an assembly’s exclusive control over certain matters could be seen as an indication that such immunity from outside review is not necessary and that therefore the necessity test had not been met.

Sections 110 and 120 of the ARNA provide that employees of the National Assembly are members of the civil service and are generally subject to a labour relations regime unless exempted by regulation made by the Assembly. At the time of the Chagnon litigation, the Assembly had not made any regulatory exemption for security guards at the National Assembly.

The majority, the concurrence, and the dissent in Chagnon adopted different approaches with regard to the impact of the ARNA on the analysis of the scope of the claimed parliamentary privileges. The majority considered the existence of the ARNA to be indicative of what the National Assembly thought was (or was not) necessary in terms of its exclusive jurisdiction/autonomy. By contrast, both the concurrence and the dissent considered whether the ARNA could have constituted a waiver of parliamentary privilege, though they arrived at different conclusions.

Regarding waiver, the question remains as to the level of clear legislative intent that will be required to demonstrate Parliament’s desire to waive a parliamentary privilege.

Majority: Not Waiver, But Necessity

For the majority, the adoption of the ARNA by the assembly did not constitute a waiver of privilege. However, Justice Karakatsanis noted that the ARNA reflects a general understanding held by the National Assembly itself that employment matters will normally be addressed in accordance with the applicable employment regimes, particularly as it has not sought to exclude any classes of employees from outside review: “Thus, as reflected in the ARNA, the Assembly does not appear to view exclusive control over the management of its security guards to be necessary to its autonomy” (para 50).

The adoption of the ARNA therefore weakened the claim to necessity made by the proponents of the privilege. Given the Assembly’s clear opportunity to exclude certain positions from the outside review flowing from the ARNA, the Assembly’s regulatory inaction was seen as confirmation that it did not view exclusive authority as being necessary to its proper functioning.

Dissent: Waiver of the Exercise of a Privilege Must Be Explicit

In their dissenting opinion, Justices Côté and Brown agreed with the majority on the issue of statutory waiver and would have held that the National Assembly did not abolish or waive its privileges by enacting the ARNA. Citing the Supreme Court’s recognition that parliamentary privileges have constitutional status, the dissent noted that the ARNA must be “interpreted in such a way that it does not implicitly abrogate some of these privileges” (para 159). According to Justices Côté and Brown, it would be “undesirable to adopt an interpretation to the effect that the Assembly implicitly considers a privilege unnecessary, thereby denying its existence” (ibid).

Concurrence: Implicit Waiver is Possible

In concurring reasons, Justice Rowe, would have taken a different view on the impact of the ARNA. For him the Assembly’s decision to allow the statutory regulation of its internal operations constituted a waiver of any privilege that could have otherwise applied to the operations in issue. He argued that “when a legislative body subjects an aspect of privilege to the operation of statute, it is the provisions of the statute that govern” (para 59). For Justice Rowe, it followed that “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” (ibid). Justice Rowe found that

…expecting a legislature to comply with its own legislation cannot be regarded as an intrusion on the legislature’s privilege. It is not an impediment to the functioning of a legislature for it to comply with its own enactments. Accordingly, when a legislature has set out in legislation how something previously governed pursuant to privilege is to operate, the legislature no longer can rely on inherent privilege so as to bypass the statute. (para 66)

Justice Rowe would have found that the enactment of a statutory obligation on the legislature to govern itself in a given way would oust privilege and grant courts or other outside bodies jurisdiction to determine the rightness or wrongness of the legislature’s decision. In doing so, he acknowledged but distanced himself from the decision in Bradlaugh v. Gosset (1884) 12 QBD 271 which had found that the House is not subject to her Majesty’s Courts in the application of statute law with respect to its internal operations (i.e. privilege).5

Analysis: Implications of Waiver

The majority view stands for the proposition that mere statutory regulation of an activity will not be enough to oust a privilege. This is consistent with Bradlaugh, that parliamentary privilege is not immunity from the law but from outside review. Hence mere statutory regulation would do nothing to remove exclusive authority of a legislature to have the final word on a matter protected by privilege.

Interestingly, the ARNA arguably went further than mere regulation of an activity as it resulted (by application of the Public Service Act, CQLR, c. F-3.1.1, s. 64) in the Commission or labour arbitrator being given authority unless legislatively removed by the Assembly enacting a regulation exempting a position from the scheme.

For the majority even this was insufficient to amount to a statutory waiver of privilege. However, it was found to be evidence that the legislature did not consider exclusive autonomy over the management of employees to be necessary. This was further confirmation that the necessity test was not met.

Given that the absence of outside review is at the core of privilege, the statutory waiver would, at a minimum, need to rule out this absence of review by granting clear and express jurisdiction to an outside body to determine and interpret the legislature’s compliance with the statute. Merely imposing statutory legal obligations on a legislature cannot be a waiver of privilege as privilege does not render legislation inapplicable but instead gives the legislature the autonomy to determine how to comply with the legislation. An explicit or, at a minimum, an inescapable indication that the assembly has decided to grant jurisdiction to an outside body is required given the constitutional status of privilege and its raison d’être which is to grant autonomy to the legislative body in issue.

Accepting that the mere setting out of rules for the assembly’s conduct would oust privilege would mean that any codification of privilege would risk waiving that privilege.

As stated by Justice Binnie in Vaid, the “immunity from external review flowing from the doctrine of privilege is conferred by the nature of the function (the Westminster model of parliamentary democracy), not the source of the legal rule (i.e. inherent privilege versus legislated privilege).”6

Conclusion

Chagnon is a significant addition to the Canadian parliamentary privilege landscape, providing insights regarding the fundamental nature of parliamentary privilege, the management of employees, and when and how a statute may demonstrate Parliament’s intent to waive the application of privilege.

First, the Court in Chagnon stressed the concept of necessity as central justification for an inherent privilege, with the understanding that the overarching principle behind any privilege is autonomy and immunity from outside review. Just as courts require judicial independence from the legislative and executive branches, so too does the legislature require its own autonomy in the form of parliamentary privilege. In this respect, privilege or immunity may be misleading terms. The legislature is no more immune from the law than the courts are immune from the law. Instead, what is in issue here is who will be the ultimate decision-maker with respect to the law’s interpretation or application. In many instances, the courts will play this role; but not always. This point is well addressed in Bradlaugh v. Gossett:

If its [the House’s] determination is not in accordance with law, this resembles the case of an error by a judge whose decision is not subject to appeal. There is nothing startling in the recognition of the fact that such an error is possible. If, for instance, a jury in a criminal case give a perverse verdict, the law has provided no remedy. […] In my opinion, the House stands with relation to such rights and to the resolutions which affect their exercise, in precisely the same relation as we the judges of this Court stand in to the law which regulate the rights of which we are the guardians, and to the judgments which apply them to particular cases; that is to say, they are bound by the most solemn obligation which can bind men to any course of conduct whatever, to guide their conduct by the law as they understand it. If they misunderstand it, or (I apologize for the supposition) willfully disregard it, they resemble mistaken or unjust judges; but in either case there is no appeal of their decision.7

Hence, the Supreme Court is not immune from the law when it interprets the law. But it is the last level of appeal (since it became Canada’s court of last resort in 1949). The SCC (and any ultimate decision-maker) is not given the last word because they are always right; they are always right because they have been given the last word. The same goes for legislative assemblies in matters falling under privilege. Because of this, the proof of necessity will require a demonstration that immunity from outside review is necessary for the fulfillment of a legislative assembly’s constitutional functions.

Second, the Supreme Court’s decision in Chagnon confirms that, to date, the Supreme Court has not recognized privilege over the management of any employee. Ultimately, it confirms that the Court will be more reluctant to find parliamentary privilege to apply over persons who are not members of a legislative assembly, particularly when the parliamentary immunity would negatively impact individuals’ Charter rights. In the employment context, the decision suggests that courts will apply existing employment and labour regimes to the management of parliamentary employees, unless a strong case can be made for parliamentary privilege to apply. As noted by Justice Karakatsanis, an example of a type or class of parliamentary employee for whom parliamentary privilege would apply to a decision regarding their dismissal has not yet been found or determined in law.

Third, regarding statutory waiver, the majority confirmed that clear legislative intent to waive privilege will be required before a waiver can be found. The mere statutory imposition of obligations on the assembly will not waive its privilege to have the last word on how to comply with the statutory obligations. However, the statutory granting of authority to an outside body, or the failure to use certain tools to remove the outside body’s jurisdiction could risk the legislature losing its autonomy by courts finding that necessity was not established.

Notes

1 https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17287/index.do

2 On the separation of powers between different branches of government see also Justice Karakatsanis’ reasons in Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40, at paragraph 35:

Longstanding constitutional principles underlie this reluctance to supervise the law-making process. The separation of powers is “an essential feature of our constitution” (Wells v. Newfoundland, [1999] 3 S.C.R. 199, at para. 52; see also Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, at para. 27). It recognizes that each branch of government “will be unable to fulfill its role if it is unduly interfered with by the others” (Criminal Lawyers’ Association, at para. 29). It dictates that “the courts and Parliament strive to respect each other’s role in the conduct of public affairs”; as such, there is no doubt that Parliament’s legislative activities should “proceed unimpeded by any external body or institution, including the courts” (Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667, at para. 20).

See also Justice Brown’s concurrence at paragraph 122.

3 As opposed to the Federal Parliament’s legislated privileges which can be established with historical evidence alone. See Canada (Board of Internal Economy) v. Boulerice, 2019 FCA 33 (leave to appeal to the Supreme Court dismissed), at paragraph 6.

4 For example it was cited by Quebec Superior Court Justice Bolduc in the initial Chagnon judicial review hearing, in his determination that the arbitrator did not have jurisdiction to decide the grievances due to parliamentary privilege over the management of employees: Chagnon c. Fortin, 2015 QCCS 883, see paragraphs 18 and 26. At the Quebec Court of Appeal, in his dissent Appeal Justice Morin relied on Association des juristes de l’État c. Québec (Procureur général) (Secrétariat du Conseil du Trésor), 2013 QCCA 1900, at paras 23 to 31 and its citation of Vaid to argue that parliamentary privilege took precedence over the legislative provisions of the ARNA: Syndicat de la fonction publique et parapublique du Québec (SFPQ) c. Chagnon, 2017 QCCA 271 at para 106.

5 In Bradlaugh, the UK Court of Queen’s Bench recognized that the jurisdiction of the Houses of Parliament over affairs that are wholly internal to Parliament’s proceedings is absolute and exclusive, and cannot be inquired into in a court of law (at p. 275). In that case the UK House of Commons had resolved not to allow Charles Bradlaugh, an elected Member, to take the oath prescribed under the Parliamentary Oaths Act, 1866, and prevented him from entering the House). The Court held that the House’s interpretation of the Act was not subject to review before courts as this would interfere with its privileges and would risk interference by the judiciary or the executive branches in the exclusive realm of Parliament [see UK Joint Select Committee 2013-2014 para 19].

6 Vaid at para 34.

7 Bradlaugh v Gossett, supra (1884) 12 QBD 271 at 285-286. In New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 SCR 319, Justice McLachlin (as she then was) quoted Bradlaugh with approval, at p. 386.