Jacques Chagnon, in his capacity as President of the National Assembly of Québec Appellant v. Syndicat de la fonction publique et parapublique du Québec, 2018 SCC 39

SUPREME COURT OF CANADA Citation: Chagnon v. Syndicat de la fonction publique et parapublique du Québec, 2018 SCC 39 , [2018] 2 S.C.R. 687 Appeal Heard: March 15, 2018 Judgment Rendered: October 5, 2018 Docket: 37543 Between: Jacques Chagnon, in his capacity as President of the National Assembly of Québec Appellant and Syndicat de la fonction publique et parapublique du Québec Respondent - and - Honourable Serge Joyal, P.C., and Speaker of the Legislative Assembly of Ontario Interveners Official English Translation: Reasons of Côté and Brown JJ.

Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ. Reasons for Judgment: (paras. 1 to 58) Karakatsanis J. (Wagner C.J. and Abella, Moldaver, Gascon and Martin JJ. concurring) Concurring Reasons: (paras. 59 to 75) Rowe J. Joint Dissenting Reasons: (paras. 76 to 165) Côté and Brown JJ. Chagnon v. Syndicat de la fonction publique et parapublique du Québec, 2018 SCC 39, [2018] 2 S.C.R. 687

Jacques Chagnon, in his capacity as President of the National Assembly of Québec Appellant v. Syndicat de la fonction publique et parapublique du Québec Respondent and Honourable Serge Joyal, P.C., and Speaker of the Legislative Assembly of Ontario Interveners Indexed as: Chagnon v. Syndicat de la fonction publique et parapublique du Québec 2018 SCC 39 File No.: 37543. 2018: March 15; 2018: October 5.

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ. on appeal from the court of appeal for quebec Constitutional law — Parliamentary privilege — Scope of privilege — Security guards dismissed by President of National Assembly of Québec — Union grieving dismissals before labour arbitrator — President objecting to grievances on basis that decision to dismiss guards immune from review because of parliamentary privilege over management of employees and parliamentary privilege to exclude strangers — Whether President has established that either parliamentary privilege is necessary for National Assembly to discharge legislative mandate and therefore dismissals should be immune from arbitrator’s review — Act respecting the National Assembly, CQLR, c.

A-23.1, ss. 110 , 120 . Three security guards employed by the National Assembly of Québec were dismissed by the President of the National Assembly for using their employer’s cameras to observe activities inside nearby hotel rooms. Their union grieved their dismissals before a labour arbitrator. The President objected to the grievances on the basis that the decision to dismiss the guards was immune from review because it was protected by the parliamentary privilege over the management of employees and the parliamentary privilege to exclude strangers from the legislative assembly.

The arbitrator concluded that the dismissals were not protected by either parliamentary privilege, and therefore that the grievances could proceed. The reviewing judge agreed with the arbitrator’s reasoning with regards to the privilege to exclude strangers, but found that the decision to dismiss the security guards was protected from review by the privilege over the management of employees. A majority of the Court of Appeal held that the arbitrator had correctly concluded that the dismissals were not protected by parliamentary privilege. Held (Côté and Brown JJ. dissenting): The appeal should be dismissed.

Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon and Martin JJ.: The dismissals are not protected by parliamentary privilege and therefore are not immune from external review under the applicable labour relations regime. Although the President is entitled to exercise his management rights and dismiss security guards for a just and sufficient cause, parliamentary privilege does not insulate the President’s decision from review under the labour regime to which the guards are subject.

Legislative bodies in Canada, including provincial legislative assemblies, have inherent parliamentary privileges that flow from their nature and function in a Westminster model of parliamentary democracy. Inherent parliamentary privileges help preserve the separation of powers and promote the proper functioning of representative democracy, by protecting some areas of legislative activity from external review. However, the inherent nature of parliamentary privilege means that its existence and scope must be strictly anchored to its rationale.

It is the role of the courts to determine whether a category of parliamentary privilege exists and to delimit its scope, whereas it is for the legislative assemblies to determine whether in a particular case the exercise of the privilege is necessary or appropriate. The scope of parliamentary privilege is delimited by the purposes it serves, and extends only so far as is necessary to protect legislators in the discharge of their legislative and deliberative functions, and the legislative assembly’s work in holding the government to account for the conduct of the country’s business.

Because courts cannot review the exercise of parliamentary privileges, even on Canadian Charter of Rights and Freedoms grounds, they must ensure that the protection provided by a privilege does not exceed its purpose. Therefore, a purposive approach must be taken when assessing parliamentary privilege claims. Such an approach helps to reconcile the privilege with the Charter , by ensuring that it is only as broad as is necessary for the proper functioning of a constitutional democracy.

The party seeking to rely on the immunity from external review conferred by parliamentary privilege bears the burden of establishing its necessity, that is, to demonstrate that the scope of the protection it claims is necessary in light of the purposes of parliamentary privilege. The necessity test demands that the sphere of activity over which the privilege is claimed be more than merely connected to the legislative assembly’s functions. The immunity that is sought from the application of ordinary law must also be necessary to the assembly’s constitutional role.

In this case, the standard of review applicable to the decision of the arbitrator is correctness. The arbitrator correctly concluded that the President’s decision to dismiss the security guards is not subject to parliamentary privilege. First, the President has failed to establish the necessity of a parliamentary privilege over the management of the guards. Admittedly, the guards perform some important tasks that are connected to the constitutional functions of the National Assembly, including protecting it from security threats

and helping to maintain decorum in the chamber. However, the National Assembly does not require immunity from outside scrutiny of the general management of the security guards in order to discharge its constitutional functions. The management of the guards could be dealt with under ordinary law without impeding the National Assembly’s security or its ability to legislate and deliberate. Permitting the enforcement of basic employment and labour protections for the guards would not undermine the independence required for the National Assembly to fulfil its constitutional mandate with dignity and efficiency.

The question of necessity can be addressed without looking to the Act respecting the National Assembly (“ ARNA ”). However, while nothing in the legislation abrogates parliamentary privilege, the ARNA establishes that all employees of the National Assembly are managed in accordance with general law. Sections 110 and 120 of the ARNA provide that the employees of the National Assembly are members of the civil service and, as such, are generally subject to a labour relations regime unless they are exempted by regulation.

As there is currently no regulatory exemption for the security guards, this demonstrates that the National Assembly does not appear to view exclusive control over their management to be necessary to its autonomy. As for the parliamentary privilege to exclude strangers, while the existence of this privilege has long been recognized, it is not necessary to a legislative assembly’s ability to perform its constitutional functions that the scope of the privilege be drawn so broadly as to include the decision to dismiss employees who implement it on the president or speaker’s behalf.

Such an immunity would impact persons who are not members of the legislative assembly, and undermine their access to the labour regime negotiated in accordance with their s. 2(

d) Charter rights. The President has not shown that the application of general labour law to those persons would jeopardize the autonomy, dignity and efficiency required for the fulfilment of the National Assembly’s legislative mandate. Accordingly, the privilege to exclude strangers does not protect the decision to dismiss employees who exercise the privilege from review. Per Rowe J.: There is agreement that the standard of review is correctness and agreement with the majority that the appeal should be dismissed but for different reasons.

Whatever the scope of privilege for management of employees, the Act respecting the National Assembly (“ ARNA ”) resolves this case. When a legislative body subjects an aspect of privilege to the operation of a statute, it is the provisions of the statute that govern. While those provisions remain operative, a legislative body cannot reassert privilege so as to do an end-run around the statute whose very purpose is to govern the legislature’s operations. Parliamentary privilege should not be invoked to bypass the application of a statute enacted by the legislature to govern its own operation.

It is not an impediment to the functioning of the legislature for it to comply with its own enactments, and it cannot be regarded as an intrusion on the legislature’s privilege. The relationship between statute and privilege is determined through ordinary principles of statutory

interpretation. In this case, in the ARNA , the National Assembly has defined how the management of its employees is to be carried out under the public service employment scheme. If the National Assembly wants a group of employees to be removed from this scheme, it can do so through the derogation procedure referred to in s. 120 of the ARNA . Privilege would then again operate, provided that the employees fell within the scope of privilege.

As the derogation procedure under s. 120 has not been exercised in this case with respect to the security guards, the President cannot now reassert privilege as to the management of the guards, and thereby insulate the decision to dismiss them from the scrutiny of the grievance arbitrator. It would be contrary to the decision of the National Assembly set out in the ARNA for the President to exercise authority over the management of employees on a case by case basis, nominally in the exercise of privilege. Accordingly, the arbitrator did not err in determining that he could hear the grievances.

Per Côté and Brown JJ. (dissenting): There is agreement with the majority that the applicable standard of review is correctness because the existence and scope of parliamentary privileges raise a question of general law that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise. The correctness standard also applies because the existence and scope of parliamentary privileges raise a constitutional issue. However, there is disagreement with the majority’s disposition of this appeal.

The parliamentary privileges at issue defeat the grievance arbitrator’s jurisdiction. The appeal should therefore be allowed and the grievances dismissed. The jurisdiction of the courts with respect to parliamentary privileges is narrow — they can only ascertain the existence and scope of such privileges. They must give considerable deference to the view taken by legislative assemblies and their speakers or presidents of the scope of autonomy they consider necessary to fulfill their functions. The courts must rely on the necessity test to ascertain the existence and scope of privileges.

This test is concerned with a sphere of the legislative body’s activity that will be excluded from the ordinary law. The onus is on the legislative assembly to 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 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.

In the analysis of the necessity test, the sphere of activity must not be carved up — the analysis must not focus on each employee’s specific tasks, but rather on the sphere of activity and the category of employees. Once the courts have found that the sphere of activity and the category of employees are necessary to the proper functioning of the legislative assembly, the inquiry ends, since the privilege has been established . There is thus no need to consider whether grievance arbitration may interfere with the proper functioning of the assembly or jeopardize the dignity of the institution.

Security is one of the spheres of activity necessary to proceedings in an assembly. In a parliamentary democracy, there can be no free debate without security. I n order for any legislative assembly to perform its constitutional functions with dignity and efficiency, it is essential that it operate in a secure environment. Security is therefore a sphere of activity that is protected by absolute parliamentary privileges. All decisions relating to security fall within this sphere of activity, including all tasks performed by an assembly’s security guards.

Th is case lies at the intersection of the two privileges claimed. All of the tasks performed by the security guards employed by the Assembly fall within a sphere of activity that is necessary to the proper functioning of the Assembly, namely security. This is enough in itself to establish the management privilege. In addition, the guards exercise, in particular, the privilege to exclude strangers on the President’s behalf . Employees to whom the exercise of a recognized parliamentary privilege is delegated necessarily perform a function that is closely and directly connected with the Assembly’s activities.

The connection required to ground a management privilege

will therefore be established where it is shown that a category of employees exercises or participates in exercising a parliamentaryprivilege that is recognized and necessary. Accordingly, the labour relations of such employees fall within the scope of the privilege overthe management of employees, and a decision concerning their dismissal is made in the exercise of this privilege. The dismissal of anemployee to whom a privilege has been delegated is the ultimate exercise of the management privilege.

To preserve the integrity of theprivileges of the Assembly and its members, the President must be able to manage the employees who exercise these privileges withouthaving his or her decisions called into question. The courts cannot dictate to the Assembly how it must go about ensuring the security ofits members within its walls by forcing it to employ people the President no longer trusts.

If a grievance arbitrator could review thePresident’s decision to terminate the guards’ employment, this would mean that part of the exercise of the President’s own dutiesbecomes de facto reviewable by a court or tribunal and therefore that the Assembly would lose control over decisions concerning itssecurity. The privileges claimed in this case were not abolished with the coming into force of the ARNA, and the Assembly did notwaive its privilege in relation to the employees concerned by enacting this statute.

The courts must respect the view taken by a speaker orpresident of a statute dealing with the internal affairs of a legislative assembly. The

interpretation proposed by the President of theAssembly must therefore be given predominant weight in determining whether the Assembly intended to limit its privileges. The ARNA governs the internal affairs of the Assembly, which are outside the scope of the courts’ jurisdiction. Thepreamble to the ARNA recognizes that the Assembly must protect its proceedings from all interference.

Section 110 of the ARNA statesthat the Assembly shall continue to be managed within the scope of the Acts, regulations and rules applicable. Except in cases where theAssembly has expressly provided otherwise, the Acts, regulations and rules of the ordinary law have never applied to a sphere of activitythat is subject to parliamentary privileges. The ordinary law that continues to apply to the Assembly is thus necessarily defined byprivilege, which has been a constant in Canada’s constitutional history.

Section 120 of the ARNA deals with the power of the Office of the Assembly to exclude categories of employees from thepersonnel of the civil service and with the management powers granted to the Secretary General, but it does not mention the President’sprivileges. It is not clear that this provision implicitly abolishes the privilege over the management of the Assembly’s employees byincorporating them into the public service or that it partially withdraws the privilege to exclude strangers from the President.

Given thatthe Court has recognized that parliamentary privileges have constitutional status, the statute must be interpreted in such a way that it doesnot implicitly abrogate these privileges. It is undesirable to adopt an

interpretation to the effect that the Assembly implicitly considers aprivilege unnecessary, thereby denying its existence. More is needed to abrogate a constitutional privilege. Without requiring expresslanguage in the ARNA, the modern approach to statutory

interpretation does require clear, unequivocal legislative intent to abolish ormodify parliamentary privileges that are still necessary. In the end, the ARNA does not have the effect of limiting the privileges held bythe President, who may assert them when deemed necessary, and courts and tribunals cannot assume jurisdiction without a clearindication that the Assembly has conferred it on them. Interference by courts or tribunals would be inconsistent with the Assembly’ssovereignty. Cases Cited By Karakatsanis J. Applied: Canada (House of Commons) v.

Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667; referred to: Canada (Canadian HumanRights Commission) v. Canada (Attorney General), 2018 SCC 31, [2018] 2 S.C.R. 230; Dunsmuir v. New Brunswick, 2008 SCC 9,[2008] 1 S.C.R. 190; New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), (SCC),[1993] 1 S.C.R. 319; Stockdale v. Hansard (1839), 9 Ad. & E. 1, 112 E.R. 1112; Jerusalem v. Austria, No. 26958/95, ECHR 2001-II;Gravel v. United States, 408 U.S. 606 (1972); A. v. the United Kingdom, No. 35373/97, ECHR 2002-X; Harvey v.

New Brunswick(Attorney General), (SCC), [1996] 2 S.C.R. 876; Mounted Police Association of Ontario v. Canada (AttorneyGeneral), 2015 SCC 1, [2015] 1 S.C.R. 3; Payson v. Hubert (1904), (SCC), 34 S.C.R. 400. By Rowe J. Referred to: Fielding v. Thomas, [1896] A.C. 600; New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the Houseof Assembly), (SCC), [1993] 1 S.C.R. 319; OPSEU v. Ontario (Attorney General), (SCC), [1987] 2S.C.R. 2; Reference re Senate Reform, 2014 SCC 32, [2014] 1 S.C.R. 704; Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1S.C.R. 667; Bradlaugh v.

Gossett (1884), 12 Q.B.D. 271; Duke of Newcastle v. Morris (1870), L.R. 4 H.L. 661; Reference re the FinalReport of the Electoral Boundaries Commission, Re, 2017 NSCA 10, 411 D.L.R. (4th) 271; Association des juristes de l’État v. Québec(Procureur général), 2013 QCCA 1900; Québec (Procureur général) v. Confédération des syndicats nationaux, 2011 QCCA 1247;Michaud v. Bissonnette, 2006 QCCA 775; Attorney General of Quebec v. Blaikie, (SCC), [1979] 2 S.C.R. 1016. By Côté and Brown JJ. (dissenting) Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Toronto (City) v.

C.U.P.E., Local 79, 2003 SCC 63, [2003]3 S.C.R. 77; Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160; Canada (Canadian Human Rights Commission) v.Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471; McLean v. British Columbia (Securities Commission), 2013 SCC 67,[2013] 3 S.C.R. 895; Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667; New Brunswick Broadcasting Co. v.Nova Scotia (Speaker of the House of Assembly), (SCC), [1993] 1 S.C.R. 319; Nova Scotia (Workers’ CompensationBoard) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504; Stockdale v.

Hansard (1839), 9 Ad. & E. 1, 112 E.R. 1112; Case of the Sheriff ofMiddlesex (1840), 11 Ad. & E. 273, 113 E.R. 419; Bradlaugh v. Gossett (1884), 12 Q.B.D. 271; Kielley v. Carson (1842), 4 Moo. 63, 13E.R. 225; Landers v. Woodworth (1878), 1878 CanLII 25 (SCC), 2 S.C.R. 158; Harvey v. New Brunswick (Attorney General), (SCC), [1996] 2 S.C.R. 876; President of the Legislative Council v. Kosmas, [2008] SAIRC 41, 175 I.R. 269; Thompson v.McLean (1998), (ON SC), 37 C.C.E.L. (2d) 170; Payson v. Hubert (1904), (SCC), 34 S.C.R. 400;Telezone Inc. v.

Canada (Attorney General) (2004), (ON CA), 69 O.R. (3d) 161; Association des juristes de l’État v.Québec (Procureur général), 2013 QCCA 1900; Duke of Newcastle v. Morris (1870), L.R. 4 H.L. 661.

Statutes and Regulations Cited Act respecting the National Assembly , CQLR, c. A-23.1,

preamble, ss. 87 , 88 , 110 , 110.2 , 116 , 120 . Bill of Rights (Eng.), 1 Will. & Mar. Sess. 2, c. 2, art. 9. Canadian Charter of Rights and Freedoms , s. 2( b ), ( d ). Constitution Act, 1867 ,

preamble, s. 92(1) . Constitution Act, 1982 , s. 45. Constitution of France, art. 26. Constitution of India, arts. 105, 194. Constitution of Italy, art. 68. Employment Protection Act 1975 (U.K.), 1975, c. 71, s. 122(3). Legislature Act , R.S.Q. 1964, c. 6, s. 55. Public Administration Act , CQLR, c. A-6.01, s. 36. Public Service Act , CQLR, c. F-3.1.1, ss. 16, 17 , 37 , 64 . Regulation respecting ethics and discipline in the public service , CQLR, c. F-3.1.1, r. 3. United States Constitution, art. I, § 6(1). Authors Cited Brun, Henri, Guy Tremblay et Eugénie Brouillet. Droit constitutionnel , 6 e éd.

Cowansville, Que.: Yvon Blais, 2014. Campbell, Elaine. Current Issue Paper #68 — The Sergeant-at-Arms: Historical Origins and Contemporary Roles . Ontario: Ontario Legislative Research Service, 1987. Canada. House of Commons. House of Commons Procedure and Practice , 2nd ed. by Audrey O’Brien and Marc Bosc. Ottawa, 2009. Canada. Senate. Standing Committee on Rules, Procedures, and the Rights of Parliament. A Matter of Privilege: A Discussion Paper on Canadian Parliamentary Privilege in the 21 st Century .

Ottawa, June 2015 (online: http://publications.gc.ca/collections/collection_2015/sen/yc29-0/YC29-0-412-7-eng.pdf; archived version: https://www.scc-csc.ca/cso- dce/2018SCC-CSC39_1_eng.pdf ). Cauchon, Hubert. Le privilège parlementaire de gestion du personnel des assemblées législatives au Canada , 2008 (online: https://corpus.ulaval.ca/jspui/bitstream/20.500.11794/20387/1/25837.pdf; archived version: https://www.scc-csc.ca/cso-dce/2018SCC- CSC39_4_fra.pdf ). Chaplin, Steven R. “ House of Commons v.

Vaid : Parliamentary Privilege and the Constitutional Imperative of the Independence of Parliament” (2009), 2 J.P.P.L. 153. Council of Europe. European Commission for Democracy Through Law (Venice Commission). Report on the Scope and Lifting of Parliamentary Immunities . Study No. 714/2013, May 14, 2014 (online: http://www.venice.coe.int/webforms/documents/default.aspx? pdffile=CDL-AD(2014)011-e; archived version: https://www.scc-csc.ca/cso-dce/2018SCC-CSC39_2_eng.pdf ). Doherty, Peter. “What is this ‘Mysterious Power’? An Historical Model of Parliamentary Privilege in Canada” (2017), 11 J.P.P.L. 383.

Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament , 24th ed., by Malcolm Jack. London: LexisNexis, 2011. Fox-Decent, Evan. “Parliamentary Privilege, Rule of Law and the Charter after the Vaid Case” (2007), 30:3 Can. Parl. Rev. 27. Groves, Matthew and Enid Campbell. “Parliamentary Privilege and the Courts: Questions of Justiciability” (2007), 7 O.U.C.L.J. 175. Hogg, Peter W. Constitutional Law of Canada , 5th ed. Supp. Scarborough, Ont.: Thomson/Carswell, 2007 (updated 2017, release 1). Lock, G. F. “Labour Law, Parliamentary Staff and Parliamentary Privilege” (1983), 12 Indus.

L.J. 28. Maingot, J. P. Joseph. Parliamentary Immunity in Canada . Toronto: LexisNexis, 2016. Marsden, Philip. The Officers of the Commons 1363-1978 . London: Her Majesty’s Stationary Office, 1979. McGee, David. Parliamentary Practice in New Zealand , 4th ed., by Mary Harris et al. Auckland, New Zealand: Oratia, 2017.

Mehta, Ravi S. “Sir Thomas’ Blushes: Protecting Parliamentary Immunity in Modern Parliamentary Democracies” (2012), 17 E.H.R.L.R. 309. Pincus, Steve. 1688: The First Modern Revolution . New Haven: Yale University Press, 2009. Post, C. Gordon. Significant Cases in British Constitutional Law . New York: Liberal Arts Press, 1957. Quebec. Assemblée nationale. Journal des débats , vol. 27, n o 90, 4 e sess., 32 e lég., 9 mai 1984, p. 6021-6023. République française. Sénat. Direction de l’initiative parlementaire et des délégations.

L’immunité parlementaire , Étude de législation comparée n o 250, juin 2014 (online: https://www.senat.fr/lc/lc250/lc250.pdf ; archived version: https://www.scc-csc.ca/cso- dce/2018SCC-CSC39_3_fra.pdf ). Robert, Charles. “Falling Short: How a Decision of the Northwest Territories Court of Appeal Allowed a Claim to Privilege to Trump Statute Law” (2011), 79 The Table 19. Robert, Charles, and David Taylor. “Then and Now: Necessity, the Charter and Parliamentary Privilege in the Provincial Legislative Assemblies of Canada” (2012), 80 The Table 17.

Roy, Marc-André. “Le Parlement, les tribunaux et la Charte canadienne des droits et libertés : vers un modèle de privilège parlementaire adapté au XXI e siècle” (2014), 55 C. de D. 489. Stubbs, William. The Constitutional History of England in Its Origin and Development , vol. III, 3rd ed. Oxford: Clarendon Press, 1884. United Kingdom. House of Commons. Parliamentary Debates , 3rd ser., vol. 49, August 1, 1839, col. 1074-75. United Kingdom. House of Commons. Parliamentary Debates , 5th ser., vol. 898, October 29, 1975, col. 1693-99. United Kingdom. House of Lords. House of Commons.

Joint Committee on Parliamentary Privilege. Parliamentary Privilege: Report of Session 2013-14 . London: Stationery Office, July 3, 2013. APPEAL from a judgment of the Quebec Court of Appeal (Chamberland, Morin and Bélanger JJ.A.), 2017 QCCA 271 , 20 Admin L.R. (6th) 93, [2017] AZ-51367748, [2017] J.Q. n o 1274 (QL), 2017 CarswellQue 1071 (WL Can.) , setting aside a decision of Bolduc J., 2015 QCCS 883 , [2015] AZ-51156941, [2015] J.Q. n o 1752 (QL), 2015 CarswellQue 1786 (WL Can.), allowing an application for judicial review of an arbitrator’s decision, 2014 QCTA 696, [2014] AZ-51104370 .

Appeal dismissed, Côté and Brown JJ. dissenting. François LeBel , Siegfried Peters and Ariane Beauregard , for the appellant. Geneviève Baillargeon-Bouchard and Pascale Racicot , for the respondent. Serge Joyal and David Taylor , for the intervener the Honourable Serge Joyal, P.C. Catherine Beagan Flood , Emily Hazlett and Christopher DiMatteo , for the intervener the Speaker of the Legislative Assembly of Ontario. The judgment of Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, and Martin JJ. was delivered by Karakatsanis J. — I.

Overview [ 1 ] Legislative bodies in Canada have inherent parliamentary privileges which flow from their nature and function in a Westminster model of parliamentary democracy. By shielding some areas of legislative activity from external review, parliamentary privilege helps preserve the separation of powers. It grants the legislative branch of government the autonomy it requires to perform its constitutional functions.

Parliamentary privilege also plays an important role in our democratic tradition because it ensures that elected representatives have the freedom to vigorously debate laws and to hold the executive to account. [ 2 ] However, inherent privileges are limited to those which are necessary for legislative bodies to fulfil their constitutional functions. The inherent nature of parliamentary privilege means that its existence and scope must be strictly anchored to its rationale.

Because courts cannot review the exercise of parliamentary privilege, even on Canadian Charter of Rights and Freedoms grounds, they must ensure that the protection provided by privilege does not exceed the purpose of this doctrine.

This case illustrates the importance of taking a purposive approach when assessing parliamentary privilege claims. [ 3 ] The appellant, the President of the National Assembly of Québec, submits that his decision to dismiss three security guards employed by the National Assembly is protected by parliamentary privilege; an arbitrator therefore has no jurisdiction to hear the grievances brought by the respondent union to contest the dismissals.

The President says that these employees’ dismissals are immune from external review because they fall within the scope of the parliamentary privilege over the management of employees and the privilege to exclude strangers from the National Assembly.

[ 4 ] I conclude that the dismissals are not protected by parliamentary privilege. The President has failed to demonstrate that the management of the security guards is so closely and directly connected to the Assembly’s constitutional functions that the Assembly requires immunity from the applicable labour relations regime in order to fulfil these functions. Moreover, the Act respecting the National Assembly , CQLR, c.

A-23.1 ( ARNA ), provides that the employees of the National Assembly are members of the civil service and, as such, they are generally subject to a labour relations regime unless they are exempted by regulation under the Public Service Act , CQLR, c. F-3.1.1, s. 64. There is currently no regulatory exemption for the guards or any of the Assembly’s other employees. The ARNA thus demonstrates that the Assembly does not need exclusive, unreviewable authority over the management of its security guards in order to perform its constitutional role with dignity and efficiency.

Further, while the exclusion of strangers is protected by parliamentary privilege, the Assembly’s ability to carry out its constitutional mandate does not require the scope of this privilege to extend so far as to protect the decision to terminate employees who assist in excluding strangers. The President has not established that the immunity he claims is necessary. [ 5 ] For the reasons that follow, I would dismiss the appeal. II.

Background [ 6 ] Three security guards employed by the National Assembly of Québec were dismissed by the appellant, the President of the National Assembly, for using their employer’s cameras to observe activities inside nearby hotel rooms. Their union, the respondent, grieved their termination before a labour arbitrator. [ 7 ] The President objected to the grievances on the basis that the decision to dismiss the guards was immune from review because it was protected by the parliamentary privilege over the management of employees and the parliamentary privilege to exclude strangers from the National Assembly. A.

Arbitral Tribunal, 2014 QCTA 696, [2014] AZ-51104370 [ 8 ] The arbitrator, Pierre A. Fortin, found that the security guards’ dismissals were not protected by parliamentary privilege, and thus that the grievances could proceed. [ 9 ] He held that the scope of the privilege to exclude strangers from the National Assembly did not protect the decision to terminate the security guards. He rejected the President’s argument that the privilege to exclude strangers includes the ability to dismiss employees who implement this privilege.

In any case, he found that the security guards do not have the authority to exclude strangers. If a security issue arises, they can signal the issue but cannot otherwise intervene. [ 10 ] Further, the arbitrator found that the guards’ dismissals fell outside the scope of the parliamentary privilege over the management of employees. He noted that the verification and surveillance tasks performed by the guards are linked to maintaining the security of the National Assembly.

However, unlike other members of the security team, such as police officers and special constables, the guards cannot intervene when issues arise, do not perform acts that could affect proceedings, and are not in contact with members of the Assembly. He concluded that the guards’ functions are not closely and directly connected to the Assembly’s constitutional functions. As such, their management was not protected by parliamentary privilege. B.

Quebec Superior Court, 2015 QCCS 883 (Bolduc J.) [ 11 ] Bolduc J. allowed the President’s application for judicial review and held that the arbitrator did not have jurisdiction to decide the grievances. [ 12 ] Although he agreed with the arbitrator’s reasoning with regards to the privilege to exclude strangers, he found that the decision to dismiss the security guards was protected from review by the privilege over the management of employees. [ 13 ] The reviewing judge concluded that the arbitrator erred in his assessment of the evidence and gave too little weight to the tasks performed by the guards.

He found that the guards are essential to ensuring the security of the parliamentary precinct because they supervise and verify the identity of visitors, and are present in the public gallery during question period. Therefore, he held that the guards’ duties are closely and directly connected to the National Assembly’s legislative and deliberative functions. Decisions about their management are protected by parliamentary privilege and, as such, are not subject to external review. C. Quebec Court of Appeal, 2017 QCCA 271 , 20 Admin.

L.R. (6th) 93 (Chamberland and Bélanger JJ.A., Morin J.A. dissenting) [ 14 ] The majority of the Court of Appeal allowed the union’s appeal. Bélanger J.A., writing for the majority, held that the arbitrator had correctly concluded that the dismissals of the security guards were not protected by parliamentary privilege. The majority agreed with the arbitrator that the guards do not have the power to exclude strangers.

Furthermore, the majority held that the privilege over the management of employees did not apply to the guards because their tasks are not closely and directly connected to the National Assembly’s deliberative and legislative functions. The majority recognized that preserving the security of the Assembly was of great importance, and that the security guards play a significant role in this endeavour. However, 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 Assembly’s work proceeds with efficiency and dignity.

It added that the Assembly has set out the parameters of the independence it requires to discharge its constitutional mandate in the ARNA , and that this statute does not limit the ability of the guards to grieve their dismissals. [ 15 ] Morin J.A., dissenting, would have dismissed the appeal. In his view, the termination of the security guards fell within the scope of the privilege over the management of employees. He reasoned that the guards provide front-line security services, without which the Assembly could not carry out its constitutional mandate with dignity and efficiency.

He also found that parliamentary privilege supersedes and cannot be limited by the ARNA . III. Issues

[16] The issue in this appeal is whether the arbitrator can decide the grievances, or whether the dismissals of the securityguards are protected by parliamentary privilege. The parties have asked this Court to determine: (1) whether the decision to dismiss theguards is protected by a parliamentary privilege over the management of employees; and (2) whether it is protected by the parliamentaryprivilege to exclude strangers. As I shall explain, I would answer that it is not. I agree with the arbitrator and the majority of the QuebecCourt of Appeal that this decision is not subject to parliamentary privilege. IV.

Analysis [17] As a preliminary point, the applicable standard of review in this case is correctness. The majority reasons of theCourt of Appeal below were written without the benefit of our Court’s reasons in Canada (Canadian Human Rights Commission) v.Canada (Attorney General), 2018 SCC 31, [2018] 2 S.C.R. 230 (CHRC). It suffices to state that the existence and scope of parliamentaryprivilege is a question of central importance to the legal system and outside the expertise of the arbitrator (Dunsmuir v. New Brunswick,2008 SCC 9, [2008] 1 S.C.R. 190, at para. 60; CHRC, at paras. 28 and 42).

Labour arbitrators do not have specialized expertise inrelation to parliamentary privilege. Moreover, while this appeal involves only the National Assembly of Québec, the conclusionsregarding parliamentary privilege will affect all other legislative bodies. A. Parliamentary Privilege: A Purposive Approach [18] Legislative assemblies in Canada, including provincial legislative assemblies, received “certain very moderate[parliamentary] privileges” through the common law as an inherent and necessary component of their legislative function, and by virtueof the

preamble of the Constitution Act, 1867 (New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), (SCC), [1993] 1 S.C.R. 319, at p. 377, citing R. M. Dawson, The Government of Canada (5th ed. 1970), at p. 338; seealso New Brunswick Broadcasting, at pp. 345 and 374-81; Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667, atpara. 29(3); J. P. J.

Maingot, Parliamentary Immunity in Canada (2016), at pp. 13 and 19). [19] Parliamentary privilege is defined as “the sum of the privileges, immunities and powers enjoyed by the Senate, theHouse of Commons and provincial legislative assemblies, and by each member individually, without which they could not dischargetheir functions” (Vaid, at para. 29(2)). These privileges, immunities, and powers exceed those afforded to the general population (ErskineMay’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament (24th ed. 2011), by M. Jack, at p. 203).

Therefore,parliamentary privilege “is an exemption from some duty, burden, attendance or liability to which others are subject” (Maingot, at p. 13).Decisions falling within the scope of parliamentary privilege cannot be reviewed by an external body, including a court (Stockdale v.Hansard (1839), 9 Ad. & E. 1, 112 E.R. 1112 (Q.B.), at p. 1168; New Brunswick Broadcasting, at pp. 350 and 382-84; Vaid, at para.29(9)). [20] Many countries afford special protections to the legislative branch of government.

For instance, numerous civil lawand common law jurisdictions guarantee the immunity of elected representatives from liability for speech that relates to their legislative work.[1] Legislative immunities ensure the proper functioning of a representative democracy.

They cultivate a space in which the voices of the people, including those who hold potentially unpopular opinions, can be heard and considered.[2] [21] Legislative privileges also allow legislative bodies to fearlessly hold the executive branch of government to account.They thus help preserve the separation and balance of power between the different branches of government (see e.g. Gravel v. UnitedStates, 408 U.S. 606 (1972), at p. 616; R. S.

Mehta, “Sir Thomas’ Blushes: Protecting Parliamentary Immunity in Modern ParliamentaryDemocracies” (2012), 17 E.H.R.L.R. 309, at p. 309). [22] In the U.K., the doctrine of parliamentary privilege developed through the struggle of the House of Commons forindependence from the other branches of government (New Brunswick Broadcasting, at p. 344 and 379; P. Doherty, “What is this‘Mysterious Power’? An Historical Model of Parliamentary Privilege in Canada” (2017), 11 J.P.P.L. 383, at p. 390).

Historically, “theCrown and the courts showed no hesitation to intrude into the sphere of the Houses of Parliament” (New Brunswick Broadcasting, at p.344). Members of the House of Commons were arrested by the sovereign if he disagreed with the Members’ conduct or speech inParliament. Members opposed these arrests, asserting that they were inconsistent with their privileges (Canada, House of Commons,House of Commons Procedure and Practice (2nd ed. 2009), by A. O’Brien and M. Bosc, at p. 64). Parliamentary privilege was partlyconfirmed in statute in the Bill of Rights (Eng.), 1 Will. & Mar.

Sess. 2, c. 2 (New Brunswick Broadcasting, at p. 345).

Article 9 statesthat “the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place outof Parliament”. However, parliamentary privilege in the U.K. extends beyond the protection of free speech (Erskine May, at p. 206).Therefore, parliamentary privilege has played a particularly important role in guaranteeing the separation of powers in the U.K.

Itensures that democratically-elected members of the House of Commons can voice their concerns and independently represent theinterests of their constituents (see also U.K., House of Lords, House of Commons, Joint Committee on Parliamentary Privilege,Parliamentary Privilege: Report of Session 2013-14 (July 3, 2013), at p. 7; A. v. the United Kingdom, No. 35373/97, ECHR 2002-X, atparas. 66 and 77). [23] In Canada, parliamentary privilege is grounded in the

preamble of the Constitution Act, 1867, which providesCanada with “a Constitution similar in Principle to that of the United Kingdom”. It is an inherent and necessary component of theWestminster model of parliamentary democracy. As in the U.K., the inherent privileges of Canadian legislative bodies are a means topreserve their independence and promote the workings of representative democracy.

It is meant to enable the legislative branch and itsmembers to proceed fearlessly and without interference in discharging their constitutional role, that is, enacting legislation and acting asa check on executive power (New Brunswick Broadcasting, at p. 354; Vaid, at paras. 21 and 41). It guarantees “an independent space forthe citizens’ representatives to carry out their parliamentary functions; the freedom to debate and decide what laws should govern, andthe unfettered ability to hold the executive branch of the State to account” (S. R. Chaplin, “House of Commons v.

Vaid: ParliamentaryPrivilege and the Constitutional Imperative of the Independence of Parliament” (2009), 2 J.P.P.L. 153, at p. 154). [24] When tethered to its purposes, parliamentary privilege is an important part of the public law of Canada (see Vaid, atpara. 29(3)). The insulation from external review that privilege provides is a key component of our constitutional structure and the lawthat governs it. Judicial review of the exercise of parliamentary privilege, even for Charter compliance, would effectively nullify the

necessary immunity this doctrine is meant to afford the legislature (New Brunswick Broadcasting, at pp. 350 and 382-84; Vaid, at para.29(9)). However, while legislative assemblies are not accountable to the courts for the ways in which they exercise their parliamentaryprivileges, they remain accountable to the electorate (Chaplin, at p. 164). [25] Yet, while the independence of the legislature is a necessary aspect of our constitutional structure and is wholly partof our law, so are its limits.

The inherent nature of parliamentary privilege means that its existence and scope must be strictly anchored toits rationale. Notably, it creates a sphere of decision-making immune from judicial oversight for compliance with the Charter.

It mayalso impede persons who are not members of the legislature from accessing recourses available under ordinary law (Vaid, at para. 30).As this Court explained in Vaid, “[c]ourts are apt to look more closely at cases in which claims to privilege have an impact on personsoutside the legislative assembly than at those which involve matters entirely internal to the legislature” (para. 29(12); see also para. 4). [26] The history of parliamentary privilege in the U.K. demonstrates the importance of defining its scope in accordancewith its purpose. Indeed, for a time after the passage of the U.K.

Bill of Rights of 1689, members of the House of Commons sought to usethe protection of privilege in their private lives (Doherty, at p. 391; see also O’Brien and Bosc, at p. 65; Stockdale, at pp. 1116-17). Suchan appeal to privilege is improper as the protection sought does not help preserve the separation of powers and promote the properfunctioning of representative democracy.

The scope of parliamentary privilege in the U.K. has thus narrowed over time (Canada, SenateStanding Committee on Rules, Procedures, and the Rights of Parliament, A Matter of Privilege: A Discussion Paper on Canadian Parliamentary Privilege in the 21st Century (June 2015) (online), at pp. 6-7; O’Brien and Bosc, at p. 67; see also U.K. Joint CommitteeReport (2013), at p. 8). [27] Thus, in Canada, the scope of parliamentary privilege is delimited by the purposes it serves (see e.g. Vaid, at paras.41-46). It inheres to the nature and functions of legislative assemblies as a separate branch of government.

The reach of inherent privilegeextends only so far as is “necessary to protect legislators in the discharge of their legislative and deliberative functions, and the legislativeassembly’s work in holding the government to account for the conduct of the country’s business” (Vaid, at para. 41; see also NewBrunswick Broadcasting, at pp. 381-85).

Otherwise, it would unjustifiably trump other parts of the Constitution. [28] Where the privilege that is claimed could undermine the Charter rights of people who are not members of thelegislative assembly, a purposive approach helps to reconcile parliamentary privilege with the Charter. Neither the Charter norparliamentary privilege “prevails over the other” (Harvey v. New Brunswick (Attorney General), (SCC), [1996] 2S.C.R. 876, at para. 69). They “enjo[y] the same constitutional weight and status” (Vaid, at para. 34 (emphasis deleted)).

Accordingly,when conflicts between the Charter and parliamentary privilege arise, “the proper approach is not to resolve the conflict bysubordinating one principle to the other, but rather to attempt to reconcile them” (Harvey, at para. 69). No doubt it will sometimes bechallenging to reconcile these two constitutional imperatives (see e.g. C. Robert and D.

Taylor, “Then and Now: Necessity, the Charterand Parliamentary Privilege in the Provincial Legislative Assemblies of Canada” (2012), 80 The Table 17, at pp. 19 and 42-43; M.-A.Roy, “Le Parlement, les tribunaux et la Charte canadienne des droits et libertés: vers un modèle de privilège parlementaire adapté au XXIe siècle” (2014), 55 C. de D. 489, at pp. 512 and 521-22).

In Harvey, McLachlin J. sought to reconcile them by adopting a narrowerinterpretation of s. 3 of the Charter so it was consistent with parliamentary privilege, and limiting the scope of the privilege at issue inlight of the Charter (paras. 70 and 74). A purposive approach to parliamentary privilege recognizes the Charter implications ofparliamentary privilege.

It strives to reconcile privilege and the Charter by ensuring that the privilege is only as broad as is necessary forthe proper functioning of our constitutional democracy. [29] In order to fall within the scope of parliamentary privilege, the matter at issue must meet the necessity test: it mustbe “so closely and directly connected with the fulfilment by the assembly or its members of their functions as a legislative anddeliberative body . . . that outside interference would undermine the level of autonomy required to enable the assembly and its membersto do their work with dignity and efficiency” (Vaid, at para. 46). [30] The necessity test thus demands that the sphere of activity over which parliamentary privilege is claimed be morethan merely connected to the legislative assembly’s functions.

The immunity that is sought from the application of ordinary law mustalso be necessary to the assembly’s constitutional role.

In other words, “[i]f a sphere of the legislative body’s activity could be left to bedealt with under the ordinary law of the land without interfering with the assembly’s ability to fulfill its constitutional functions, thenimmunity would be unnecessary and the claimed privilege would not exist” (Vaid, at para. 29(5)). [31] Previously recognized categories of parliamentary privilege serve as examples of matters meeting this requirement.Take, for instance, the immunity of members of the legislative assembly for their speech insofar as it relates to their mandate, thelegislative assembly’s autonomy in controlling its debates or proceedings, its “power to exclude strangers from proceedings”, and itsauthority to discipline its members as well as “non-members who interfere with the discharge of parliamentary duties” (Vaid, at para.29(10)).

That said, given its rationale, the necessity of a privilege must be assessed in the contemporary context. Even if a certain areahas historically been considered subject to parliamentary privilege, it may only continue to be so if it remains necessary to theindependent functioning of our legislative bodies today (New Brunswick Broadcasting, at p. 387; see also Vaid, at para. 29(6)). [32] The party seeking to rely on the immunity from external review conferred by parliamentary privilege bears theburden of establishing its necessity.

It must demonstrate that the scope of the protection it claims is necessary in light of the purposes ofparliamentary privilege. It is the role of the courts to determine whether a category of parliamentary privilege exists and to delimit itsscope.

Though the courts “give considerable deference to [the legislative body’s] view of the scope of autonomy it considers necessary tofulfill its functions”, their role is nonetheless to “ensure that a claim of privilege does not immunize from the ordinary law theconsequences of conduct by Parliament or its officers and employees that exceeds the necessary scope of the category of privilege”(Vaid, at paras. 40 and 29(11)).

But once the category and its scope are established, “it is for Parliament, not the courts, to determinewhether in a particular case the exercise of the privilege is necessary or appropriate” (Vaid, at para. 29(9) (emphasis in original); see alsoparas. 47-48). Admittedly, “[t]he distinction between defining the scope of a privilege, which is the function of the courts, and judgingthe appropriateness of its exercise, which is a matter for the legislative assembly, may sometimes be difficult to draw in practice” (Vaid,at para. 47).

Yet this distinction strikes a compromise between the fundamental purposes served by parliamentary privilege in ourconstitutional structure, and the need to ensure that the autonomy afforded through privilege does not belie its purposes (see NewBrunswick Broadcasting, at pp. 348-50 and 382-84).

B. Parliamentary Privilege Over the Management of Employees [ 33 ] Relying on statements in Vaid , both parties acknowledge the existence of a parliamentary privilege over the management of some employees. Their disagreement concerns the scope of this privilege. The appellant President submits that the National Assembly holds a privilege over the management of the security guards because there is both a “sufficient” and “a close and direct” connection between the tasks they perform and the Assembly’s constitutional functions. The security guards play a key role in ensuring security.

They provide a first level of defence and are involved in 80 to 90 percent of the Assembly’s security work. Security promotes the effectiveness of the Assembly’s activities. The respondent union argues that the tasks performed by the security guards are not sufficiently connected to constitutional functions of the Assembly for their management to be subject to privilege.

The security guards have no real power to intervene if an issue arises and primarily support the work of the special constables and police officers. [ 34 ] In Vaid , the Speaker of the House of Commons asserted a sweeping privilege over the management of all employees of the House, which would have immunized the decision to dismiss his chauffeur from external review (para. 52).

The Court noted that, if the privilege claimed by the Speaker existed, its scope would include the management of “service employees (such as catering staff) who support MPs in a general way, but play no role in the discharge of their constitutional functions” (para. 47).

It concluded that the appellants had failed to establish the existence of this broad privilege, which had not been shown to satisfy the necessity test (paras. 75- 76). [ 35 ] Although the Court stated in Vaid that privilege “no doubt . . . attaches to the House’s relations with some of its employees”, Vaid itself does not establish the existence of any form of privilege over the management of employees (para. 75 (emphasis deleted); see also para. 62).

The Court concluded that “[t]he definition of a more limited category of privilege . . . must await a case in which the question truly arises for a decision” (para. 101; see also para. 76).

Notably, U.K. courts have not yet recognized the management of any parliamentary employees to be protected by privilege, and some authors suggest that “management functions relating to the provision of services in either House are only exceptionally subject to privilege” ( Vaid , at para. 61 (emphasis deleted), citing U.K., Joint Committee on Parliamentary Privilege, vol. 1, Report and Proceedings of the Committee (1999), at para. 248; see also G. F. Lock, “Labour Law, Parliamentary Staff and Parliamentary Privilege” (1983), 12 Indus.

L.J. 28, at p. 29; Erskine May , at p. 240). [ 36 ] Thus, Vaid did not determine whether a parliamentary privilege over the management of some employees exists. As in Vaid , we do not need to decide whether this privilege exists, as the management of the security guards — including their dismissals — would fall beyond the scope of any such privilege.

As I shall explain, the tasks performed by the guards are important, but subjecting their management to ordinary law would not hamper the autonomy which the National Assembly requires to discharge its constitutional mandate. [ 37 ] The present case highlights the difficulty with trying to recognize a category of privilege that includes all aspects of the management of a group of employees and decisions with regards to all functions these employees perform (see E. Fox-Decent, “Parliamentary Privilege, Rule of Law and the Charter after the Vaid Case” (2007), 30:3 Can. Parl. Rev. 27, at p. 31).

The requirements of the necessity test may be more easily fulfilled where the scope of autonomy that is claimed pertains to control and oversight over certain functions performed by some parliamentary employees, or certain aspects of their employment relationship. That said, the parties have not framed this case in that way. The President asserts a parliamentary privilege over the management of the security guards as a category of employees.

This privilege would immunize not only their dismissals, but all of their employment conditions (from salary to seniority) from review on any grounds. [ 38 ] The security of the National Assembly is undoubtedly important. An assembly cannot function without maintaining its security. As the President states, [ translation ] “a parliament cannot deliberate without a secure setting” (A.F., at para. 84). Secure legislative precincts support an assembly in discharging its constitutional functions. [ 39 ] The tasks performed by the security guards support the National Assembly in fulfilling its constitutional mandate.

The arbitrator found that the tasks performed by the security guards include the surveillance of the National Assembly’s buildings, controlling access to them, and verifying the identity of people inside them. Thus, the security guards play a key role in protecting the National Assembly from security threats. Additionally, the guards are sometimes stationed in the chamber and help maintain decorum. [ 40 ] However, many employees support legislative bodies in performing their constitutional functions. Considered broadly, many staff play a role in ensuring that a legislative assembly can fulfil its mandate.

But merely demonstrating that a category of employees performs important tasks that promote the ability of the assembly to discharge its functions does not suffice to establish that decisions about their management must be protected by parliamentary privilege. [ 41 ] The close and direct connection between the tasks performed by the employees and the legislative assembly’s constitutional functions is only part of the equation.

The necessity test also requires that the immunity that is sought from the executive and judicial branches of government — here a privilege over the management of the security guards — be 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” ( Vaid , at para. 46 ). [ 42 ] The necessity test is stringent because, as discussed above, parliamentary privilege has the potential to shield parliamentary decision-making from judicial oversight, including for Charter compliance.

Here, the privilege sought affects employees who are not members of the National Assembly. Further, the privilege claimed by the appellant may undermine the right of the security guards to meaningfully associate in the pursuit of collective workplace goals, guaranteed under s. 2(

d) of the Charter ( Mounted Police Association of Ontario v. Canada (Attorney General) , 2015 SCC 1 , [2015] 1 S.C.R. 3, at para. 67 ). It is thus particularly important to keep the purposes underlying privilege in mind in assessing whether the necessity test is met.

The sphere of immunity that is sought must be necessary for the legislative body to have sufficient independence from the other branches of government in order to perform its constitutional functions. [ 43 ] In short, the question we must answer in this case is this: is the management of the security guards “so closely and directly connected with the fulfilment 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” ( Vaid , at para. 46 )?

In other words, 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” ( Vaid , at para. 72 (emphasis added), citing the British Joint Committee Report (1999), at para. 247)? [ 44 ] I agree with the majority of the Court of Appeal that the President has failed to establish the necessity of the immunity it claims, that is, a parliamentary privilege over the management of the security guards.

Admittedly, the guards perform some important tasks that are connected to the constitutional functions of the National Assembly. They contribute to the security of the Assembly and to maintaining order and decorum in the part of the Assembly’s chamber that is accessible to the public during question period. That said, immunity from outside scrutiny in the general management of the security guards is not such that, without it, the Assembly could not discharge its functions ( Vaid , at para. 72 ).

The management of the guards could be dealt with under ordinary law without impeding the Assembly’s security or its ability to legislate and deliberate ( Vaid , at para. 29 (5)).

Permitting the enforcement of basic employment and labour protections for the security guards would not undermine the independence required for the Assembly to fulfil its mandate with dignity and efficiency. [ 45 ] Of course, as the appellant suggests, order and decorum in the chamber is important to a legislative body’s ability to discharge its functions ( New Brunswick Broadcasting , at p. 398; A.F., at paras. 84 and 106; transcript, at pp. 25-27 and 29).

Hence, it may be necessary, to maintain order in the National Assembly’s chamber itself, for the President to have the absolute right to oversee certain functions exercised by a given group of employees or certain aspects of their employment relationship. But it does not necessarily require the recognition of a broad privilege over their management. Employees often perform diverse duties and many aspects of managing their employment relationship would have no bearing on the protection of the Assembly’s constitutional role.

Unreviewable authority over all functions and absolute power over all aspects of how this group of employees is managed is not necessary in light of the purpose of inherent legislative privileges. [ 46 ] The question of necessity can, therefore, be addressed without looking to the ARNA . However, consideration of the ARNA does not detract from the above analysis of the necessity test.

While nothing in the legislation abrogates inherent parliamentary privilege, the ARNA does establish that, unless the Office of the National Assembly indicates otherwise by regulation, all of its employees are managed in accordance with general law. [ 47 ]

Section 110 of the ARNA reads: Subject to this Act, the [National] Assembly shall continue to be managed within the scope of the Acts, regulations and rules applicable. The Office [of the National Assembly] may, however, by regulation, derogate from the applicable Acts, regulations and rules by specifically indicating the provisions derogated from and the provisions that are to apply in their place and stead. [ 48 ]

Section 120 para. 1 states: Every member of the personnel of the Assembly, except a casual employee, is a member of the personnel of the civil service, whether appointed under the Public Service Act (chapter F-3.1.1 ) or by derogation by virtue of the second paragraph of

section 110 , unless, in the latter case, the Office excludes him therefrom. [ 49 ] Employees of the National Assembly (except for casual employees) are members of the civil service ( ARNA , s. 120). Unless they fall within one of the exceptions set out in s. 64 of the Public Service Act , they are members of the respondent union. Their working conditions are negotiated by the respondent and the Conseil du trésor ( Public Administration Act , CQLR, c.

A-6.01, s. 36; ARNA , s. 110.2). [ 50 ] The Office of the National Assembly, which is composed of the President, five government members, and four opposition members, has not exercised its rights under s. 110 of the ARNA to exclude the management of any of the Assembly’s employees, including the security guards, from the applicable general law (see also ARNA , ss. 87 and 88 ). It could have done so if it believed that the Assembly’s ability to fulfil its constitutional functions required it to have exclusive control over the guards’ management.

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. [ 51 ] In short, even if a privilege over the management of some parliamentary employees exists, the management of the security guards would fall outside its scope. Moreover, if the President had only claimed a parliamentary privilege over the dismissals of all security guards, I would still conclude that the necessity test was not met.

Despite the important functions performed by the security guards, the President has not shown that it requires the unreviewable authority to dismiss this category of employees in order for the Assembly to be able to fulfil its constitutional duties with efficiency and dignity. C. Parliamentary Privilege to Exclude Strangers [ 52 ] The appellant submits that the security guards’ dismissals are also subject to the parliamentary privilege to exclude strangers. Before this Court, he does not submit that the security guards are strangers to the National Assembly.

His argument is that this privilege includes the President’s right to determine who can implement it on his behalf. Because the guards exercise the privilege to exclude strangers when they control access to and within the legislative assembly, the President’s decision to terminate their employment is protected from review.

If arbitrators and courts were entitled to review the dismissals of the security guards, they could interfere with the President’s determination of who has delegated authority to exclude strangers and, by implication, interfere with the exercise of this parliamentary privilege. [ 53 ] While the respondent does not dispute the existence of the parliamentary privilege to exclude strangers, it submits that this privilege does not apply to the decision to dismiss the security guards. The broad manner in which the President has construed

this privilege overshoots its underlying purpose and could significantly affect the rights of people who are not members of the Assembly. [54] The inherent privilege of legislative assemblies in Canada to exclude strangers from their proceedings and precinctshas deep historic roots. The absolute right to eject strangers from Parliament has been upheld as a matter of privilege in the U.K. forcenturies (New Brunswick Broadcasting, at pp. 385-87 and 389; Erskine May, at pp. 14-15). In Canada, this privilege was recognized asearly as 1904, in Payson v. Hubert (1904), (SCC), 34 S.C.R. 400.

The existence of this privilege was confirmed in NewBrunswick Broadcasting, where this Court found it necessary to ensure that elected representatives are able to effectively debate andcarry out their legislative functions uninhibited and undisturbed (pp. 387-88). The decision of a legislative assembly to remove orexclude strangers is thus immune from external review. [55] While the existence of the parliamentary privilege to exclude strangers is not in question, this Court must apply thenecessity test to determine whether its scope includes the dismissals of employees who implement it on the President’s behalf.

The issuehere is not whether the President has the power to delegate the exercise of the inherent parliamentary privilege to exclude strangers to theAssembly’s employees.

Rather, it is whether the dismissals of employees who implement this privilege on the President’s behalf must beimmune from external review for the Assembly to be able to discharge its legislative mandate (see Vaid, at para. 56). [56] I conclude that it is not necessary to a legislative assembly’s ability to perform its constitutional functions that thescope of its privilege to exclude strangers be drawn so broadly as to include the decision to dismiss employees who implement thisprivilege.

This unnecessary sphere of immunity would impact persons who are not members of the legislative assembly, and underminetheir access to the labour regime negotiated in accordance with their s. 2(

d) Charter rights. The appellant has not shown that theapplication of general labour law to employees who implement this privilege would jeopardize the autonomy, dignity, and efficiencyrequired for the fulfilment of the Assembly’s legislative mandate (see Vaid, at para. 29(5)). It is true that allowing the union to grieve thedismissals of these employees may delay the finality of these decisions. Yet these delays would not impede the Assembly’s legislativeactivities. [57] The privilege to exclude strangers does not protect the decision to dismiss employees who exercise this privilegefrom review. V.

Conclusion [58] Obviously, the President is entitled to exercise his management rights and dismiss security guards for a just andsufficient cause. However, parliamentary privilege does not insulate the President’s decision from review under the labour regime towhich the security guards are subject pursuant to the ARNA and the Public Service Act. I would therefore dismiss the appeal with coststhroughout. As a result, the decision of the labour arbitrator stands. The following are the reasons delivered by Rowe J. — I. Overview [59] I accept Justice Karakatsanis’ statement of the facts, her

summary of the judgments below and her conclusion as tothe standard of review. I also concur with her in the result, albeit for different reasons. In my view, whatever the scope of parliamentaryprivilege for management of employees, the National Assembly of Québec’s governing statute, the Act respecting the NationalAssembly, CQLR, c. A-23.1 (“ARNA”), resolves this case. When a legislative body subjects an aspect of privilege to the operation ofstatute, it is the provisions of the statute that govern.

While the relevant statutory provisions remain operative, a legislative body cannotreassert privilege so as to do an end-run around an enactment whose very purpose is to govern the legislature’s operations. Thus, for thereasons that follow, I would dismiss the appeal and remit the matter to the grievance arbitrator for a determination on the merits. II. Analysis A.

Preliminary Question [60] The power of provincial legislatures to define their privileges was recognized by the Judicial Committee of the PrivyCouncil which held that, by means of s. 92(1), “the British North America Act itself confers the power (if it did not already exist) to passActs for defining the powers and privileges of the provincial legislature” (Fielding v. Thomas, [1896] A.C. 600, at p. 610).

TheConstitution Act, 1982 repealed s. 92(1) of the British North America Act, 1867 (when it was renamed the Constitution Act, 1867), whichhad provided the legislature of a province with authority to amend “the Constitution of [a] province”. This was replaced by s. 45 of theConstitution Act, 1982, to somewhat similar effect. It would seem to follow that what provincial legislatures could formerly do under s.92(1) they can now do under s. 45, including defining their privileges. [61] The jurisprudence on this point, however, is not entirely clear. In New Brunswick Broadcasting Co. v.

Nova Scotia(Speaker of the House of Assembly), (SCC), [1993] 1 S.C.R. 319, at p. 384, McLachlin J. held that parliamentaryprivileges “are part of the fundamental law of our land, and hence are constitutional”. Sopinka J. commented that by rooting inherentparliamentary privileges in the

preamble of the Constitution Act, 1867, “these privileges would arguably not be subject to provinciallegislation and any change would require an amendment to the Constitution of Canada pursuant to s. 43, or indeed s. 38, of theConstitution Act, 1982” (New Brunswick Broadcasting, at p. 396).

For Sopinka J., the consequence of McLachlin J.’s analysis is that theprovinces would no longer have the legislative powers over privilege recognized in Fielding. [62] In obiter, I would be inclined to agree with the view expressed by some commentators that s. 45 of the ConstitutionAct, 1982, as did s. 92(1) before it, includes the power to enact laws in relation to the privileges of a provincial legislature (see P. W.Hogg, Constitutional Law of Canada (5th ed. Supp.), at pp. 1-16 and 4-34; H. Brun, G. Tremblay and E. Brouillet, Droit constitutionnel

(6th ed. 2014), at p. 326). This view is supported by comments made by this Court which suggest that s. 45, as the successor to s. 92(1),covers the same subject matter (see OPSEU v. Ontario (Attorney General), (SCC), [1987] 2 S.C.R. 2, at p. 33;Reference re Senate Reform, 2014 SCC 32, [2014] 1 S.C.R. 704, at paras. 47-48). [63] This issue is not dealt with by the parties in this appeal; I refer to the issue as it may arise in the future, including ifthe National Assembly or another provincial legislature seeks to amend its privileges.

In the facts of this case, the management ofemployees of the National Assembly was dealt with by statute prior to patriation in 1982 (see Legislature Act, R.S.Q. 1964, c. 6, s. 55). Itseems clear to me that such an enactment in 1964 was authorized by s. 92(1) (see OPSEU, at p. 33). B. Parliamentary Privilege and Statutory Enactments [64] As noted above, I agree with Karakatsanis J. that the standard of review is correctness, both for the reasons shegives, and because the scope of parliamentary privilege is a constitutional question.

I would adopt the analysis set out by Côté andBrown JJ. in paras. 86-88 of their reasons. [65] Parliamentary privilege is “one of the ways in which the fundamental constitutional separation of powers isrespected” (Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667, at para. 21). It supports the exercise ofparliamentary sovereignty to ensure that a legislature is safeguarded a due measure of autonomy from the other two branches of the state,the executive and the judiciary.

Parliamentary privilege protects the operation of the legislature from outside interference, where suchinterference would impede the fulfilment of its constitutional role. As described in Erskine May’s Treatise on The Law, Privileges,Proceedings and Usage of Parliament: Parliamentary privilege is the sum of certain rights enjoyed by each House collectively as a constituent part of the High court ofParliament; and by Members of each House individually, without which they could not discharge their functions, and which exceed thosepossessed by other bodies or individuals. ((24th ed. 2011), by M.

Jack, at p. 203) [66] Parliamentary privilege should not, however, be invoked to bypass the application of a statute enacted by thelegislature to govern its own operation. In that regard, I endorse the comments of Charles Robert, now Clerk of the House of Commons: The fundamental purpose of any parliamentary or legislative privilege is to provide protection against outside interference that isunwarranted and intrusive, or that would impede the Legislative Assembly in controlling its debates or proceedings.

Therefore, it seemsunreasonable to invoke privilege to disable, and render meaningless, a law which the Assembly itself adopted relating to itsadministrative operations. (C. Robert, “Falling Short: How a Decision of the Northwest Territories Court of Appeal Allowed a Claim to Privilege to Trump StatuteLaw” (2011), 79 The Table 19, at pp. 25-26) In other words, expecting a legislature to comply with its own legislation cannot be regarded as an intrusion on the legislature’sprivilege. It is not an impediment to the functioning of a legislature for it to comply with its own enactments.

Accordingly, when alegislature has set out in legislation how something previously governed pursuant to privilege is to operate, the legislature no longer canrely on inherent privilege so as to bypass the statute. Thus, I would distance myself from Stephen J.’s views in Bradlaugh v.

Gossett(1884), 12 Q.B.D. 271, at p. 278, to the effect that “the House of Commons is not subject to the control of Her Majesty’s Courts in itsadministration of that part of the statute-law which has relation to its own internal proceedings”. [67] Rather, this Court has stated that the relationship between statute and privilege is determined through ordinaryprinciples of statutory

interpretation. This approach differs from the approach adopted at common law, the rule in Duke of Newcastle v.Morris (1870), L.R. 4 H.L. 661, which holds that privilege was not “struck at unless by express words in the statute” (p. 668). This Courthas held that this presumption of non-displacement of privilege is “out of step with modern principles of statutory

interpretation acceptedin Canada” (Vaid, at para. 80; see also Reference re the Final Report of the Electoral Boundaries Commission, Re, 2017 NSCA 10, 411D.L.R. (4th) 271, at paras. 116-19). [68] Notwithstanding this, Professors Brun, Tremblay and Brouillet have argued that [translation] “[a]lthough it wasqualified in Vaid . . . the rule of

interpretation referred to here [the rule in Duke of Newcastle] can still apply in appropriate cases” (Droitconstitutionnel, at pp. 328-29). The Quebec Court of Appeal viewed ss. 110 and 120 of the ARNA as being such an appropriate case inAssociation des juristes de l’État v. Québec (Procureur général), 2013 QCCA 1900.

Relying on the comments of Professors Brun,Tremblay and Brouillet, it held that [translation] “sections 110 and 120 of the ARNA did not have the effect of implicitly abrogating theparliamentary privilege over the management of employees of the National Assembly of Québec” (para. 26 ; see also paras. 27-30). (See to a similar effect Québec (Procureur général) v. Confédération des syndicats nationaux, 2011 QCCA 1247, at para. 30; Michaud v.

Bissonnette, 2006 QCCA 775, at para. 59 .) [69] I am inclined to agree with Professors Brun, Tremblay and Brouillet that the rule in Duke of Newcastle can stilloperate in certain circumstances. Such circumstances, however, do not arise in the face of the legislature’s organizing statute. The ARNAsets out the administrative structure through which the National Assembly is to operate.

To the extent that it is an enactment that“determine[s] the composition, powers, authority, privileges and duties of the legislative [branch]” (OPSEU, at p. 39), it bears “on theoperation of an organ of the government of the Province” (Attorney General of Quebec v. Blaikie, (SCC), [1979] 2S.C.R. 1016, at p. 1024), and is constitutional in nature within the meaning given in OPSEU, at p. 40. Further, the National Assemblymust be presumed to have had its inherent privileges in mind when enacting the ARNA.

Accordingly, I would not apply the rule in Dukeof Newcastle requiring express language to derogate from privilege when dealing with the ARNA.

C. Operation of the ARNA [ 70 ] In the ARNA , the National Assembly has defined how the management of its employees is to be carried out.

Section 120 qualifies personnel of the National Assembly as civil servants unless they are appointed by regulation derogating from the Public Service Act , CQLR, c. F-3.1.1, and excluded from its membership. This gives to all employees (save those so excluded) the same rights and obligations as members of the civil service.

Section 120 also vests in the Secretary General the powers and responsibilities of a deputy minister for the purposes of the Public Service Act . Under that Act, a deputy minister is responsible for management of the employees of the National Assembly ( Public Service Act , s. 37). Sections 16 and 17 of the Public Service Act grant a deputy minister the authority to discipline employees, including through dismissal, for a contravention of the standards of ethics and discipline. [ 71 ] In this case, the letters of dismissal by the Secretary General dated July 17, 2012, are an exercise of this power. The dismissals were based

[…]