2018 QCCA 257, 2018 QCCA 257

Singh c. Attorney General of Quebec 2018 QCCA 257 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-025715-152 (500-17-065992-110) DATE: February 19, 2018 CORAM: THE HONOURABLE MARIE ST-PIERRE, J.A. MARIE-JOSÉE HOGUE, J.A. PATRICK HEALY, J.A. BALPREET SINGH and HARMINDER KAUR APPELLANTS – Petitioners v.

ATTORNEY GENERAL OF QUEBEC RESPONDENT – Respondent and JACQUES CHAGNON, in his capacity as President of the National Assembly IMPLEADED PARTY – Impleaded Party JUDGMENT [ 1 ] On appeal from a judgment rendered on 16 October 2015 by the Honourable Pierre Journet of the Superior Court, District of Montreal, that dismissed the appellants’ Motion for Declaratory Judgment; [ 2 ] For the reasons of Healy, J.A., with which St-Pierre and Hogue, JJ.A., agree, THE COURT: [ 3 ] DISMISSES the appeal, with legal costs. MARIE ST-PIERRE, J.A. MARIE-JOSÉE HOGUE, J.A. PATRICK HEALY, J.A.

Mtre Julius Grey Mtre Geneviève Grey GREY CASGRAIN For the appellants Mtre François Lebel LANGLOIS AVOCATS and

Mtre Ariane Beauregard ASSEMBLÉE NATIONALE DU QUÉBEC For the impleaded party Date of hearing: March 22, 2017 REASONS OF HEALY, J.A.

Introduction [ 4 ] This appeal arises from a judgment of the Superior Court that dismissed the appellants’ Motion for Declaratory Judgment and affirmed the authority of the National Assembly to exclude kirpans from its precincts as an assertion of parliamentary privilege over the exclusion of strangers. [1] [ 5 ] The central question is whether principles of parliamentary privilege allow the National Assembly to exclude kirpans from its precincts or whether constitutional rights such as the freedom of religion and expression preclude the Assembly from excluding them.

Both parliamentary privilege and guaranteed rights form part of the Constitution of Canada, and thus part of the supreme law. This appeal thus concerns the separation of powers. Its resolution requires consideration of principles of parliamentary privilege and the extent to which courts may review their exercise by the National Assembly in accordance with the freedom of religion or expression. Context [ 6 ] The appellants are practising Sikhs who at all times wear a kirpan [2] in the observance of their faith.

On 18 January 2011, they arrived at the National Assembly, where they had been invited to make submissions before a legislative committee on a pending bill. Before their arrival the appellants advised the National Assembly that they would be wearing kirpans. They were invited to enter the Assembly if they would surrender their kirpans to the security officers, but they refused. They were denied entry on the basis of Instruction 652-01 , which is a directive concerned with matters of security relating to visitors published in September 1996 pursuant to

section 116 of the Act respecting the National Assembly . [3] That directive excludes from the Assembly knives, scissors and any other dangerous objects. Superior Court Amendment and Re-amendment [ 7 ] On 8 February 2011, the Assembly adopted a resolution to approve the appellants’ exclusion by security personnel on 18 January 2011. [4] The appellants then brought a Motion for Declaratory Judgment. The Attorney General of Quebec was named as defendant and the President of the Assembly as impleaded third party . [5] The Motion sought the annulment of this resolution.

It was amended a first time to seek a declaration that the resolution is “inconstitutionnelle, nulle et inopérante” [6] and a second time to conclude that the resolution “n’est pas contraignante et n’a pas la [ sic ] force de loi.” [7] The re-amendment was the position advanced on appeal. [8] The appellants conceded that the National Assembly was entitled to express its collective opinion [9] concerning the exclusion of kirpans but concluded that that the resolution was not legally binding. [ 8 ] Notwithstanding these variations, there was and is no dispute that Instruction 652-01 was interpreted in the National Assembly to authorise the exclusion of kirpans from the precincts of the legislature.

This was affirmed by the resolution of 8 February 2011. The disagreement is that the President claims that this exclusion was a valid assertion of parliamentary privilege to exclude strangers from the legislature and that its merits were not subject to review in the courts for substantive compliance with rights guaranteed by the Charter . The appellants submit that this exclusion is not a valid assertion of parliamentary privilege and is subject to review by the courts for compliance with the Charter .

Judgment [ 9 ] The principal conclusion sought by the appellants in the Motion for Declaratory Judgment was this: DÉCLARER que toute personne qui doit porter un Kirpan pour des motifs religieux peut le porter à l’intérieur de l’Assemblée nationale du Québec qu’il soit député, employé ou visiteur. The core of their position is found in paragraph 31 of their re-amended Motion for Declaratory Judgment:

Les privilèges de l’Assemblée nationale ne peuvent être invoqués contre la présente procédure; les Chartes s’appliquent nonobstant les privilèges. The Superior Court concluded that the exclusion of kirpans by the National Assembly was a function of the parliamentary privilege to exclude strangers and, as parliamentary privilege is a principle of constitutional law, the merits of this exclusion were beyond the reach of judicial review for alleged breach of the Charter by virtue of the separation of powers.

The Court also concluded that the resolution of 8 February 2011 was a valid exercise of the freedom of expression by the Assembly and likewise beyond the scope of judicial review. For these two reasons the Superior Court dismissed the appellants’ Motion for Declaratory Judgment.

Scope of the appeal [ 10 ] The conclusion sought in the appellants’ brief in this appeal is this: “Appellants pray that the appeal be allowed, the judgment of Journet J. be set aside, a declaration be issued on the terms requested or such other terms requested or such other terms as the Court sees fit.” The words “terms requested” must be taken to refer to the proceedings before the Superior Court. [ 11 ] The questions before the Court are twofold: Was the exclusion enforced by the National Assembly an expression of parliamentary privilege? If not, the appellants must succeed.

Second, even if so, is that privilege overtaken by rights guaranteed by the Charter and enforceable by the courts as part of the supreme law of Canada? If not, the appellants must fail. [ 12 ] These questions will be addressed on the specific facts of the case. For the purposes of this appeal, therefore, attention will not be given to questions beyond the scope of this appeal. I will not consider persons associated with the National Assembly, such as employees or members, who are not similarly situated to the appellants. I will not consider what is meant by the “precincts” of the National Assembly.

I will not consider whether there might be objects other than kirpans that are subject to exclusion. I will not undertake a consideration of the policy or practice in other legislative bodies. I will not consider whether the National Assembly could validly exclude persons of a particular religion, race or nationality. Basic principles [ 13 ] Parliamentary privilege comprises various rules and principles concerned with the governance of legislative institutions.

As these were derived in 1867 from the adoption in Canada of a model of government similar in principle to that of the United Kingdom, [10] the Supreme Court has affirmed that parliamentary privilege forms part of the Canadian constitutional fabric. [11] There is nothing in the jurisprudence of the Supreme Court to suggest that the Charter has displaced the core principles of parliamentary privilege.

Accordingly, the separation of powers between the legislature and the courts is a constitutional imperative that restricts the scope of judicial review where parliamentary privilege is invoked. [12] The courts may determine the existence and scope of such privilege but not its content or the substantive merits of its exercise. [13] Parliamentary privilege is not a static body of jurisprudence but evolves to respond to the necessity for the effective administration of legislative bodies: The test of necessity is not applied as a standard for judging the content of a claimed privilege, but for the purpose of determining the necessary sphere of exclusive or absolute "parliamentary" or "legislative" jurisdiction.

If a matter falls within this necessary sphere of matters without which the dignity and efficiency of the House cannot be upheld, courts will not inquire into questions concerning such privilege. All such questions will instead fall to the exclusive jurisdiction of the legislative body.

Thus the test of necessity for privilege is a jurisdictional test. [14] Necessity is a restrictive criterion by which to justify the exemption of claims of privilege from the ordinary or general law. [ 14 ] To determine the existence and scope of parliamentary privilege the Supreme Court has ruled that a reviewing court should first determine whether those questions have been positively and authoritatively established by the Constitution, legislation, regulations or settled jurisprudence. [15] For convenience I will refer to this first element as the rule of recognition precisely because it requires a court to determine whether a claimed principle of parliamentary privilege has been previously recognised and authoritatively established as a matter of positive law.

If it has, by statute or by the express declaration of the legislature itself, or by jurisprudence, there is little or no scope for further review in the courts. If it has not, the reviewing court must consider second whether the proponent of parliamentary privilege can demonstrate whether it is necessary for the effective administration of the legislature. The rule of necessity is a rigorous standard of justification that limits parliamentary privilege to what is necessary for the legislature to perform its functions effectively.

This exercise does not allow judicial review of the merits of any claimed privilege because that matter is reserved exclusively to the legislature. I will refer to this second element of the reviewing court’s function as the rule of necessity . The application of this rule requires evidence, persuasion and adjudication.

The distinction between the rule of recognition and the rule of necessity is that the first is based upon categories recognised by binding authorities and the second is based upon a restricted examination of principle and policy that compels the courts to demonstrate deference to another branch of government. [ 15 ] The exclusion of strangers has long been recognised as a distinctive feature among the categories of parliamentary privilege. [16] It can apply to natural persons and it can apply to any form of exclusion from the precincts of the legislature, including objects. [17] In these reasons I will refer to the exclusion of strangers compendiously as any form of exclusion from the precincts of the legislature.

As already noted, Instruction 652-01 was invoked to exclude kirpans from the Assembly and this was confirmed by the resolution adopted by the Assembly on 8 February 2011. Positions of the parties [ 16 ] The appellants submit that any claim of parliamentary privilege must satisfy the rule of necessity. Were this position supported by the jurisprudence, two corollaries would follow. First, it would mean that the rule of necessity would apply to test any new claim of parliamentary privilege. This point is settled law and is not in issue. Second, it would also mean that the same rule would be invoked to

rescind the established authority of any claim of privilege that otherwise satisfies the rule of recognition, which is the issue in this appeal. In either case the rule of necessity could displace a claim of privilege so as to require the application of the ordinary law, including freedoms guaranteed by the Charter . [ 17 ] Although the appellants accept the doctrine of the exclusion of strangers, they submit that the exclusion of the kirpan is not included in it. On this basis they submit that the exclusion of the kirpan does not satisfy the rule of recognition.

As noted previously, they also submit that the exclusion of the kirpan cannot satisfy the rule of recognition because it cannot satisfy the rule of necessity or, if it might previously have satisfied the rule of recognition, it can no longer satisfy the rule of necessity.

The appellants submit that the exclusion of the kirpan is subject to judicial review for substantive compliance with the Charter because it cannot satisfy either the rule of recognition or the rule of necessity. [ 18 ] The President submits that the privilege to exclude strangers justifies the exclusion of kirpans to ensure the security of the National Assembly and all persons within its precincts. He affirms that the jurisprudence does not support the position of the appellants.

He submits that the exclusion of kirpans satisfies the rule of recognition and that there is no further margin for review of that claim in the courts. Thus he denies that the rule of necessity could be invoked in the courts to review and rescind the authority of a privilege that satisfies the rule of recognition. Moreover, he submits that even if it could the courts cannot review the exercise of the privilege by the Assembly.

Jurisprudence [ 19 ] The principle of parliamentary privilege that was recognised in the Bill of Rights 1688 as immunity from “illegal prosecution” was premised on a distinction between the jurisdictions of the executive, the legislature and the courts. [18] The principles that govern the separation of powers are thus constitutional principles [19] that structure the autonomy of the branches of government.

Parliamentary privilege is a jurisdictional principle that provides an exemption from the general or ordinary law only to the extent necessary to ensure that the legislature can discharge its functions. [20] Not everything done in the legislature is an expression of privilege and thus privilege can only be asserted over matters essential to the performance of its work. For this reason the courts are competent to determine the existence and scope of parliamentary privilege, and thus the legislature’s jurisdiction, but cannot judge whether its exercise is meritorious. [ 20 ] In N.B.

Broadcasting the Supreme Court confirmed that these general principles formed part of Canadian constitutional law and held specifically that the privilege to exclude strangers is entrenched in the Canadian constitution. The Court noted that the distinction between the existence and scope of a privilege and its exercise is not always clear but insisted that the distinction must be rigorously observed. [ 21 ] In N.B.

Broadcasting the Supreme Court affirmed that a provincial legislature could invoke the privilege to exclude strangers to prevent journalists from filming in the precincts of the assembly and at the same time to exclude their cameras from the precincts of the legislature. The journalists argued that this exclusion was a violation of the freedom of expression and thus inconsistent with the Charter .

The Court noted that the privilege to exclude strangers was one of the foundational forms of parliamentary privilege that Canada had derived from England. [21] It characterised this privilege as a constitutional power that is absolute: The Parliamentary privilege of the British Parliament at Westminster sprang originally from the authority of Parliament as a court. Over the centuries, Parliament won for itself the right to control its own affairs, independent of the Crown and of the courts.

The courts could determine whether a parliamentary privilege existed, but once they determined that it did, the courts had no power to regulate the exercise of that power. One of those privileges, held absolutely and deemed to be constitutional, was the power to exclude strangers from the proceedings of the House. […] In

summary, it seems clear that, from an historical perspective, Canadian legislative bodies possess such inherent privileges as may be necessary to their proper functioning. These privileges are part of the fundamental law of our land, and hence are constitutional.

The courts may determine if the privilege claimed is necessary to the capacity of the legislature to function, but have no power to review the rightness or wrongness of a particular decision made pursuant to the privilege. [22] The Court considered that the privilege to exclude strangers remains an essential element of parliamentary privilege in Canada today: The fact that this privilege has been upheld for many centuries, abroad and in Canada, is some evidence that it is generally regarded as essential to the proper functioning of a legislature patterned on the British model.

However, it behooves us to ask anew: in the Canadian context of 1992, is the right to exclude strangers necessary to the functioning of our legislative bodies? In my view, this privilege is as necessary to modern Canadian democracy as it has been to democracies here and elsewhere in past centuries. The legislative chamber is at the core of the system of representative government. It is of the highest importance that the debate in that chamber not be disturbed or inhibited in any way. Strangers can, in a variety of ways, interfere with the proper discharge of that business.

It follows that the Assembly must have the right, if it is to function effectively, to exclude strangers. The rule that the legislative assembly should have the exclusive right to control the conditions in which that debate takes place is thus of great importance, not only for the autonomy of the legislative body, but to ensure its effective functioning. [23] Having determined that the privilege to exclude strangers was entrenched in the Canadian constitution, the Court concluded that the Charter in no way altered its force or effect:

We are asked to say that the Charter not only removed from the legislative bodies the right to pass whatever laws they might choose to adopt, but that it removed the long-standing constitutional right of Parliament and the legislative assemblies to exclude strangers, subjecting the determination by the Speaker of what is disruptive of the operation of the Assembly to the superior review of the courts. I see nothing in the Charter that would mandate or justify taking the reallocation of powers which it effected to this extreme.

I conclude that the legislative assembly of Nova Scotia possesses an inherent constitutional right to exclude strangers from its chamber, where it concludes their presence is disruptive of the Assembly's business. Having concluded that the Assembly had the constitutional right to do what it did, it follows that the Charter cannot cut down that right, on the principle that one part of the Constitution cannot abrogate another part of the Constitution. [24] On this basis it is clear in N.B.

Broadcasting that the privilege to exclude strangers has been explicitly confirmed as an integral part of parliamentary privilege in Canada and that it is not modified or qualified in principle by provisions of the Charter . In short, N.B. Broadcasting leaves no doubt that the privilege to exclude strangers satisfies the rule of recognition and the rule of necessity. On its facts it also demonstrates a wide measure of deference to the legislature concerning the exercise of this privilege. [ 22 ] Vaid restated the general principles concerning parliamentary privilege that were expressed in N.B. Broadcasting .

The Court noted again that, even though the division of jurisdiction between the legislature and the courts in relation to parliamentary privilege is not always easy to navigate, the governing principles remain constant: Proof of necessity is required only to establish the existence and scope of a category of privilege. Once the category (or sphere of activity) is established, it is for Parliament, not the courts, to determine whether in a particular case the exercise of the privilege is necessary or appropriate.

In other words, within categories of privilege, Parliament is the judge of the occasion and manner of its exercise and such exercise is not reviewable by the courts. [25] [Emphasis in the original] It acknowledged that the scope of privilege has evolved but always with adherence to a rule of necessity.

The Court also noted that the continuing validity of a privilege that has previously satisfied the rule of recognition might be questioned if it no longer satisfied the rule of necessity: When the existence of a category (or sphere of activity) for which inherent privilege is claimed (at least at the provincial level) is put in issue, the court must not only look at the historical roots of the claim but also to determine whether the category of inherent privilege continues to be necessary to the functioning of the legislative body today.

Parliamentary history, while highly relevant, is not conclusive. [26] [Emphasis in the original] The import of this proposition was not examined at length but four observations can be made in the context of this appeal. [ 23 ] First, nothing in Vaid disturbs the authority of N.B. Broadcasting and nothing in Vaid is inconsistent with the conclusion that the privilege to exclude strangers continues to satisfy the rule of recognition and the rule of necessity. Second, Vaid says nothing about how the continuing validity of a recognised privilege might be questioned.

It might be questioned by the legislature itself but it would seem axiomatic that a court could not determine whether a privilege continues to satisfy the rule of necessity without embarking on a substantive assessment of its merits and its exercise, thus disturbing the fundamental premise of the jurisdictional division between the legislature and courts. Third, nothing in Vaid modifies the narrow and restrictive test that limits necessity to necessities for the effective administration of the legislature and thus constrains the scope of judicial review in matters of parliamentary privilege.

Fourth, given that a court has no jurisdiction to review the exercise of an existing privilege, the reviewing power remains strictly limited to a determination of its existence and scope. For present purposes, N.B. Broadcasting and Vaid provide conclusive authority that the privilege to exclude strangers is a category of parliamentary privilege that is not only established but constitutionally entrenched. Discussion [ 24 ] The jurisprudence does not support the expansive view of review in the courts that is advanced by the appellants.

While Vaid acknowledges that the scope of parliamentary privilege might vary over time, according to the test of necessity, it does not provide a basis on which to challenge the authority of the privilege to exclude strangers and does not provide a precedent for subtracting specific elements from that category of parliamentary privilege. The position advanced by the appellants is that the principles of parliamentary privilege are subordinate to a broad and purposive

interpretation of constitutional protections. The jurisprudence of the Supreme Court has rejected this view. That jurisprudence has recognised the possibility for tension between competing imperatives in the law of parliamentary privilege and the protection of constitutional rights.

But it remains Canadian law that to guarantee the separation of powers the scope of constitutional review by courts is restricted by the scope of parliamentary privilege in legislatures. [ 25 ] The appellants argue that the decision of the Supreme Court in Multani [27] compels the conclusion that an unjustifiable violation of constitutional liberties occurred with the exclusion of kirpans from the National Assembly. In that decision the majority of the Court expressed the view that a total prohibition of kirpans in schools was not a reasonable and justifiable violation of the Charter .

A minority of the Court concluded that principles of administrative law could be invoked to reach a conceptually compatible result. But that decision was in no way concerned with parliamentary privilege and therefore in no way concerned with the separation of powers that effectively creates a juridical bar to substantive review by the courts when parliamentary privilege is properly invoked. It was concerned with kirpans in the context of educational institutions.

Where there is a question of parliamentary privilege the jurisprudence makes plain that the ordinary courts must defer in large measure to the rule-making authority of the legislature to determine appropriate standards of self-

governance, including the privilege to exclude strangers. Multani is fundamentally distinguishable because the present case involves the coexistence of two distinct constitutional orders defined by the imperatives of the separation of powers. [28] The appellants seeks to collapse the strict separation of powers and to subordinate parliamentary privilege to the authority of the Charter . This is not permitted by the settled jurisprudence of the Supreme Court in N.B.

Broadcasting and Vaid . [ 26 ] It might be that, but for parliamentary privilege, the exclusion of the kirpan would be properly characterised as a violation of the Charter . But parliamentary privilege cannot be set aside. In this regard there is a resemblance between a justification under

section 1 of the Charter and the rule of necessity to the extent that both justify an exemption from otherwise applicable legal principles. In the context of parliamentary privilege the rule of necessity is a rule concerning reasonable limitations in a free and democratic society that respects the separation of powers. But there is an important difference, which is that the scope of judicial review in matters of parliamentary privilege is sharply limited.

Beyond a determination that the rule of recognition has been satisfied, the only additional margin for review is found in the rule of necessity, which itself is circumscribed by a strict policy of deference to the legislature. Conclusion [ 27 ] The judge at first instance applied the governing principles and declined to embark upon a more searching review. He concluded that the rule of recognition was satisfied by the principle of parliamentary privilege concerned with the exclusion of strangers. There is no error in these conclusions.

So too, albeit implicitly, he was satisfied that there was no basis on which to question whether this privilege was consistent with the rule of necessity. [ 28 ] There is no question that exclusion of the kirpan by the National Assembly is an assertion of the privilege to exclude strangers and that it meets the rule of recognition. The appellants claim that this exercise of the privilege is not valid because its fails the rule of necessity. N.B.

Broadcasting affirms definitively that the privilege to exclude strangers is a fundamental category of inherent parliamentary privilege that is constitutionally entrenched and immune from Charter review. Vaid makes plain that such a claim cannot succeed unless it is shown that the existence or scope of this category of privilege fails the rule of necessity. The appellants thus invite the Court to contradict both N.B. Broadcasting and Vaid . Unless and until the authority of those decisions is reversed by the Supreme Court, I decline the appellants’ invitation to contradict them.

For reasons I have explained it is not for the Court to determine whether this exercise of the privilege is necessary and it is certainly not within the jurisdiction of the Court to determine whether the privilege to exclude strangers is necessary as a category of parliamentary privilege. [ 29 ] The appellants invite the Court to review the Assembly’s exercise of the privilege to exclude strangers in the exclusion of the kirpan. For the reasons I have explained I would not accede to this invitation. [ 30 ] I make no comment whether the Assembly’s exercise of the privilege to exclude the kirpan is a wise decision.

I say only that it is a legal exercise of this category of privilege. If the appellants wish to challenge it the proper forum is the Assembly itself. [ 31 ] I would dismiss the appeal with legal costs against the appellants in this Court and the Superior Court. PATRICK HEALY, J.A.