Rachel Saunders Applicant And: Nunatsiavut government on behalf of the nunatsiavut ASSEMBLY Respondent, 2022 NLSC 142

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Saunders v. Nunatsiavut Assembly , 2022 NLSC 142 Date : September 22, 20 22 Docket : 201901G3373 Between: Rachel Saunders Applicant And: Nunatsiavut government on behalf of the nunatsiavut ASSEMBLY Respondent Before: Justice Sandra R. Chaytor Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: February 15 and 16, 2022

Summary: By resolution of the Nunatsiavut Assembly, Rachel Saunders was removed from her office as a member of the Assembly. Ms. Saunders sought judicial review of that decision. The Assembly contended that its decision was immune from judicial review due to parliamentary privilege. The parties sought a preliminary determination on that issue. Held: The Nunatsiavut Assembly, as a legislative body, holds all privileges, immunities, and powers necessary for it to function as an effective parliamentary institution.

The Assembly’s parliamentary privilege over the regulation of its internal affairs, including its privilege to regulate the standards and conduct of its members, applies to the resolution of the Nunatsiavut Assembly to remove Ms. Saunders from office. Therefore, the Court has no jurisdiction to review the resolution or the disciplinary process that led to it.

The action was dismissed with leave to the parties to address the Court on costs. Appearances: Mark J. Gruchy Appearing on behalf of the Applicant Andrea N. Williams and Amanda M. Nash Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: Canada (House of Commons) v. Vaid, 2005 SCC 30; New Brunswick Broadcasting Co. v. Nova Scotia(Speaker of the House of Assembly), (SCC), [1993] 1 S.C.R. 319; Chagnon v. Syndicat de la fonction publique etparapublique du Québec, 2018 SCC 39; Duffy v. Canada (Senate), 2020 ONCA 536; Harvey v.

New Brunswick (Attorney General), (SCC), [1996] 2 S.C.R. 876; Landers v. Woodworth (1878), 1878 CanLII 25 (SCC), 2 S.C.R. 158; Bradlaugh v.Gossett (1884), 12 Q.B.D. 271 (Eng. Q.B.), 50 L.T. 620; Temple v. Bulmer, (SCC), [1943] S.C.R. 265, 3 D.L.R. 649;Newcastle (Duke) v. Morris (1870), L.R. 4 H.L. 661, 23 L.T. 569; March v. Hodder, 2007 NLTD 93 STATUTES CONSIDERED: Nunatsiavut Constitution Act, CIL 31-12-2012 N-3; The Nunatsiavut Code of Conduct for Elected Officials Act, CIL 31-12-2012 C-2; Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11; Labrador InuitLand Claims Agreement Act, S.N.L. 2004, c. L-3.1; Nunatsiavut Assembly Act, IL 2005-09, s 43; Constitution Act, 1867, 30 & 31Victoria, c. 3 (U.K.); Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, being

Schedule B to the CanadaAct 1982 (U.K.), 1982, c. 11 TEXT CONSIDERED: Peter W. Hogg, Constitutional Law of Canada (Toronto: Thomson Reuters Canada Limited 2019) RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D REASONS FOR JUDGMENT Chaytor, J.: introduction [1] Rachel Saunders was elected as an Ordinary Member of the Nunatsiavut Assembly for the constituency of Hopedale. OnMarch 5, 2019, she was removed from office by a resolution of the Nunatsiavut Assembly. Ms. Saunders seeks judicial review of thatdecision. [2] Specifically, in the Application for judicial review, she seeks an Order that:

a) The decision to terminate her by the Nunatsiavut Assembly was unreasonable at law and therefore invalid;

b) The decision to remove her by the Nunatsiavut Assembly was sufficiently legally wrongful that it represents the exceeding of theAssembly’s jurisdiction and therefore certiorari should issue;

c) The directions and ultimate decision of the Nunatsiavut Assembly violated her freedom of expression under 2(

b) of the Charter ofRights and Freedoms that cannot be saved by s. 1; and

d) She was denied procedural fairness in the investigatory and discipline process and this requires the decision to be quashed orotherwise dealt with as the Court sees fit. [3] The Respondent is the Labrador Inuit parliament for Nunatsiavut as constituted pursuant to

part 4.1 of the NunatsiavutConstitution Act, CIL 31-12-2012 N-3 (the “Nunatsiavut Constitution Act”). [4] The Nunatsiavut Assembly contends that the decision to remove Ms. Saunders from office is protected by parliamentaryprivilege and therefore the Court lacks jurisdiction to review it.

[ 5 ] Both parties requested the Court to deal with the issue of parliamentary privilege before a full hearing on the judicial review Application. If the Court decides that parliamentary privilege is applicable, the parties agree that would dispose of the matter. [ 6 ] This is my decision on the preliminary issue. background [ 7 ] The factual background relevant to this issue is not contentious and is contained in the Record filed. [ 8 ] It begins with Ms.

Saunders’ attendance at a meeting of Hopedale Housing Committee (“the HHC”) on October 31, 2018. [ 9 ] The HHC is comprised of members of the community of Hopedale. It is a branch of the Torngat Regional Housing Association ("TRHA"). The TRHA is a corporation established to deliver social housing on behalf of Labrador Inuit to the communities of Nain, Hopedale, Postville, Makkovik and Rigolet. It is a separate legal entity from the Nunatsiavut Government.

The mandate of the HHC is to make decisions with respect to housing applications and allocations within Hopedale. [ 10 ] The meeting on October 31, 2018 took place in the Nunatsiavut Assembly building. Its purpose was to discuss the tenancy of a house in the community occupied by Ms. Saunders’ uncle. The house had been in the possession of Ms. Saunders’ family for many years and she considered it to be her ancestral home. [ 11 ] Ms. Saunders attended the meeting along with other members of her family. The Nunatsiavut Assembly concedes that Ms. Saunders attended the meeting in her personal capacity.

During the meeting, Ms. Saunders became upset and left abruptly. As she departed the building, she used profanity. This occurred in front of Nunatsiavut Assembly staff. [ 12 ] After the meeting, Ms. Saunders made the following post on social media: “Colonization and oppression at its finest. My grandparents home is took away. They were forced out of their home in Hebron and forced my family out of their home here.” [ 13 ] Discussion ensued on social media in response to Ms. Saunders’ posting. Ms.

Saunders also made other posts on the subject including one in which she apologized to her uncle and noted that the HHC would “stick to their policy.” [ 14 ] James Tuttauk, a member of the HHC and a constituent of Ms. Saunders' electoral district of Hopedale, submitted to the Speaker of the Nunatsiavut Assembly, an application for review of an official’s conduct under The Nunatsiavut Code of Conduct for Elected Officials Act , CIL 31-12-2012 C-2; (the “ Code of Conduct ”). The application concerned Ms. Saunders’ conduct at the HHC meeting and her subsequent social media post. Mr.

Tuttauk expressed that, as a residential school survivor, he took offense to her remarks about colonialism. [ 15 ] The Speaker found that the allegations by Mr. Tuttauk were sufficiently serious to warrant referring the matter for investigation and determination to an ad hoc discipline committee of the Nunatsiavut Assembly (the “Discipline Committee”) pursuant to the Code of Conduct . [ 16 ] The Discipline Committee comprised of the Speaker of the Assembly and two members of the Assembly conducted an investigation, which included interviews of Ms. Saunders, Mr.

Tuttauk, and witnesses. [ 17 ] Following its investigation, the Discipline Committee determined that Ms. Saunders had violated three sections of the Code of Conduct on the following basis: a.

Section 2.2: Every Elected Official shall act with integrity. Acting with integrity includes (

a) being honest; (

b) being truthful. ... The Facebook post by Saunders implied that an injustice had been perpetrated by the Hopedale Housing Committee (HHC) and that members of her family were the victims of that injustice. Saunders’ post ignored the fact that the HHC presented valid reasons for their decision and outlined policy which justified their conclusion and as such propagated a “half-truth”; b.

Section 2.4: Elected Officials must not engage in personal conduct that would tend to bring discredit to their offices. Avoiding discredit includes… (

f) promoting and supporting ethical conduct by leadership, by example, and by following the Code of Conduct. Saunders swore in the Assembly building and stomped out of the meeting that was in progress. Furthermore, she chose to air her frustrations on Facebook. None of these constitute behaviors which we expect and demand from our Elected Officials. Elected Officials must be beacons for ethical and appropriate behavior at all times. c.

Section 2.6: Elected Officials must treat colleagues, constituents, public servants, and members of the public with the courtesy and respect that is their due. Saunders used the term “colonizers and oppressors” when referring to the HHC. The HHC Board included elders and residential school

survivors who were understandably upset by this characterization. [ 18 ] The Discipline Committee imposed the following sanctions on Ms.

Saunders: 1) One week suspension without pay commencing December 3, 2018; 2) To write a letter of apology to the HHC and directed to those who served on the HHC at the time of the infraction; 3) To write a letter of apology directed to all members of the Nunatsiavut Assembly and read this letter at the next sitting of the Assembly; 4) To write a letter of apology to her constituents and post that letter on the Hopedale News Facebook page; and 5) To apologize to the Nunatsiavut Assembly staff who were present when Ms. Saunders “swore out loud” and “acted out” in the Assembly building. [ 19 ] Ms.

Saunders completed the suspension period but refused to apologize as directed. [ 20 ] Given Ms. Saunders’ non-compliance with all sanctions imposed, the Discipline Committee reconvened to consider its options. The Discipline Committee decided that Ms. Saunders’ refusal to apologize constituted an offence against the decorum and order of the Nunatsiavut Assembly. It decided that if Ms. Saunders continued to refuse to apologize, it would bring a motion that she be suspended at the January 2019 sitting of the Nunatsiavut Assembly.

Further, if she continued to refuse to comply, then the Discipline Committee would recommend her removal from office at the March 2019 sitting of the Nunatsiavut Assembly. [ 21 ] On January 22, 2019, the following motion was brought before the Nunatsiavut Assembly: NOW THEREFORE BE IT RESOLVED THAT the Ordinary Member for Hopedale by refusing to accept and follow the decision of the Discipline Committee has failed to conduct herself in a manner that is respectful of the Code of Conduct , this Assembly, the Speaker and the Members of the Discipline Committee, has acted in a manner that is detrimental to the order and decorum of this Assembly AND THAT THEREFORE the Assembly hereby ORDERS that the rights and privileges of the Ordinary Member for Hopedale are suspended with immediate effect; AND BE IT RESOLVED THAT the suspension shall continue until the start of the next siting of the Assembly unless before that time the Ordinary Member for Hopedale has complied with the sanctions imposed by the Discipline Committee; AND BE IT FURTHER RESOLVED THAT if the Ordinary Member for Hopedale has not complied with the sanctions imposed by the Discipline Committee by the commencement of the next Sitting of the Assembly, the Assembly shall consider a Motion under

section 17 of the Nunatsiavut Assembly Act to remove the Ordinary Member for Hopedale from office as a member of the Nunatsiavut Assembly for a serious breach of the Code of Conduct and contempt of the Nunatsiavut Assembly. [ 22 ] The Assembly debated the motion. Ms. Saunders was in attendance. She spoke on the motion by stating: Nakummek . I’ll make this a little bit easier… I am still refusing to write those apology letters, and I will continue to refuse until you remove me from office. Nakummek . [ 23 ] The Nunatsiavut Assembly passed the motion. [ 24 ] Ms. Saunders continued to refuse to issue the apologies.

On March 5, 2019, a motion for Ms. Saunders’ removal from office was brought and debated in the Nunatsiavut Assembly. [ 25 ] Ms. Saunders was present and given an opportunity to speak and did so. She stated: Thank you. I am an honest person. I don’t lie. I’m firm in my beliefs and I hold very high integrity and my morals and my values are that of my ancestors, the Inuit people. To me, this process was not fair and I stand proud in saying that I will fight for what I believe is right for me.

I was hoping that we had tabled a letter that came to you guys last evening, because I did retain a lawyer, because I feel that my rights have been violated and right now, and all along, I have said that I will not apologize for something I didn’t do. There are certain things that I did do, under the Code of Conduct , yes, and I owned up to that, but to me, this process was not fair. And I look forward to hearing your response to the letter that my lawyer has drafted and sent to you. Thank you. [ 26 ] The motion for Ms.

Saunders’ removal from office passed with the requisite 60% of members of the Nunatsiavut Assembly voting in favour. [ 27 ] The resolution read as follows: WHERAS Ms. Rachel Saunders, the Ordinary Member of the Nunatsiavut Assembly for the Inuit Community of Hopedale was found to have contravened sections 2.2, 2.4 and 2.6 of the Code of Conduct by a Discipline Committee acting under

section 5.5 of the Code of Conduct; AND WHEREAS the Discipline Committee required that the Ordinary Member for Hopedale write letters of apology to the Hopedale

Housing Committee, all members of the Nunatsiavut Assembly, her constituents and Assembly staffers who were present when she swore out loud and acted out in the Assembly building; AND WHEREAS the Ordinary Member for Hopedale refused to comply with the sanctions imposed by the Discipline Committee; AND WHERAS on 16 January 2019 [1] this Assembly ORDERED that i. the rights and privileges of the Ordinary Member for Hopedale be suspended; ii. the suspension continue until the start of the next Sitting of the Assembly unless before that time the Ordinary Member for Hopedale complied with the sanctions imposed by the Discipline Committee; and iii. if the Ordinary Member for Hopedale did not comply with the sanctions imposed by the Discipline Committee by the commencement of the next Sitting of the Assembly, the Assembly would consider a Motion under

section 17 of the Nunatsiavut Assembly Act to remove the Ordinary Member for Hopedale from office as a member of the Nunatsiavut Assembly for a serious breach of the Code of Conduct and contempt of the Nunatsiavut Assembly; AND WHEREAS the Ordinary Member for Hopedale has not complied with the Order of this Assembly; AND WHEREAS

section 4.3.7 of the Labrador Inuit Constitution and

section 17 of the Nunatsiavut Assembly Act state that a member of the Nunatsiavut Assembly may be removed from office by a Resolution of the Nunatsiavut Assembly adopted with a supporting vote of at least 60% of its members only and on the grounds of:

a) a serious violation of the Labrador Inuit Constitution or Inuit law;

b) becoming unable to perform the functions of office; or

c) unethical or immoral behaviour, including a serious breach of any code of conduct, including a code of ethics and conflict of interest guidelines, that may be established by the Assembly for its members; AND WHEREAS Ms. Saunders’ conduct:

a) is contrary to her Oath of Office to obey, respect and uphold the Labrador Inuit Constitution and all Inuit laws;

b) is inconsistent with the Principles set out in

section 1.1.3(

n) and 1.1.3(

y) of the Labrador Inuit Constitution ;

c) is a breach of sections 2.2, 2.4 and 2.6 of the Code of Conduct , as determined by the Discipline Committee; and

d) demonstrates contempt for the Nunatsiavut Assembly and is a breach of

section 55(

c) of the Nunatsiavut Assembly Act , NOW THEREFORE BE IT RESOLVED THAT Ms. Rachel Saunders, Ordinary Member of the Nunatsiavut Assembly for the Inuit Community of Hopedale, is hereby removed from office; AND BE IT FURTHER RESOLVED THAT Ms. Rachel Saunders be entitled to payment of appropriate severance, calculated to the date of this Resolution, not including any period(

s) of unpaid leave. [ 28 ] This is the resolution of the Nunatsiavut Assembly that is the subject of Ms. Saunders’ Application for judicial review. The Decision for which judicial review is sought [ 29 ] It is clear from the relief sought by Ms. Saunders that she is seeking judicial review of the resolution of the Nunatsiavut Assembly to remove her from office. The basis of the Application for judicial review, however, is largely a challenge to the actions and decisions of the Discipline Committee leading up to the resolution. [ 30 ] Ms.

Saunders challenges the authority of the Discipline Committee to order an apology and the nature of the apologies required. She takes particular umbrage with the multiple apologies she was required to make and the public nature of the apologies. She

submitted that to apologize for a finding of misconduct involving a breach of integrity would be tantamount to her acknowledging shehad been dishonest. Ms. Saunders further contests the process utilized by the Discipline Committee in reaching its recommendation forher removal from office. [31] Although the Discipline Committee recommended that Saunders be removed from office for refusing to comply with thesanction determined through the disciplinary process, the Nunatsiavut Assembly was not bound by that recommendation. The DisciplineCommittee could not remove Ms. Saunders from office.

Only the Nunatsiavut Assembly had that power. The decision to remove Ms.Saunders from office was passed by resolution of the Nunatsiavut Assembly. The Nunatsiavut Assembly was the ultimate decisionmaker, not the Discipline Committee. [32] The Discipline Committee was comprised of the Speaker of the Assembly and two other members of the Assembly. It derivedits authority to investigate Ms. Saunders’ conduct pursuant to the Code of Conduct. The Code of Conduct was established pursuant to theLabrador Inuit Constitution and

section 113 of the Nunatsiavut Assembly Act. The Speaker of the Nunatsiavut Assembly determined thatthe complaint against Ms. Saunders warranted an investigation. [33] I conclude that the Discipline Committee is a statutory delegate of the Nunatsiavut Assembly. Therefore, if I determine thatparliamentary privilege applies, to the extent relevant, the Discipline Committee would also be protected by the privilege held by theNunatsiavut Assembly. issueS [34] The issues to be determined are:

(1) Does parliamentary privilege apply to the Nunatsiavut Assembly?

(2) If the answer to (1) is yes, is the resolution to remove Ms. Saunders from office protected from judicial review because ofparliamentary privilege? This question involves consideration of the following sub-issues: (

i) The existence and scope of the privilege claimed; (ii) Whether the category of privilege has been statutorily curtailed? [35] I conclude that parliamentary privilege is applicable to the Nunatsiavut Assembly. Further, I conclude that in passing theresolution to remove Ms. Saunders from office, the Nunatsiavut Assembly was acting within a sphere of activity protected byparliamentary privilege namely its privilege over the regulation of its internal proceedings, including the privilege to regulate thestandards and conduct of its members. Therefore, the resolution is not subject to judicial review.

ANALYSIS Issue 1: Does parliamentary privilege apply to the Nunatsiavut Assembly? [36] Legislatures possess a set of powers and privileges that are necessary to their capacity to function as legislative bodies. Thesepowers and rights are known collectively as “parliamentary privilege” (Peter W. Hogg, Constitutional Law of Canada (Toronto:Thomson Reuters Canada Limited. 2019) at 1.7). [37] In Canada (House of Commons) v.

Vaid, 2005 SCC 30 at paragraph 29, Binnie, J. characterized parliamentary privilege inCanada as … “the sum of the privileges, immunities and powers enjoyed by the Senate, the House of Commons and provinciallegislative assemblies, and by each member individually, without which they could not discharge their functions.” [38] There is no question that in Canada, the Senate, the House of Commons and provincial legislative assemblies hold such powersand privileges. There is also no question as to the importance of these powers and privileges.

Parliamentary privilege is an essentialfeature of our constitutional democracy as it helps maintain the constitutional separation of powers between the legislative, executive,and judicial branches of government. [39] In New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), (SCC), [1993] 1S.C.R. 319, at paragraph 144, McLaughlin, J. (as she then was) noted the several branches of government and the importance of eachrespecting the role of the others. She wrote, “It is fundamental to the working of government as a whole that all these parts play theirproper role.

It is equally fundamental that not one of them overstep its bounds, that each show proper deference for the legitimate sphereof activity of the other.” [40] Therefore, when parliamentary privilege applies, the subject matter falls within the exclusive jurisdiction of the legislativeassembly. Decisions falling within the scope of parliamentary privilege cannot be viewed by an external body, including a court(Chagnon v.

Syndicat de la function publique du Québec, 2018 SCC 39 at para. 19). [41] The question that arises in this case is whether the Nunatsiavut Assembly holds parliamentary privileges similar to those heldby other legislative assemblies in this country. [42] The answer to that question requires an analysis of the creation of the Nunatsiavut Government. [43]

Section 35 of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, recognized andaffirmed treaty rights of indigenous people. These rights include rights that may be acquired by way of land claims agreements.

[ 44 ] In 2004, the Inuit of Labrador as represented by Labrador Inuit Association, the Province of Newfoundland and Labrador, and the Government of Canada, entered into the Labrador Inuit Land Claims Agreement (“the Agreement” ). The Agreement was ratified under the Labrador Inuit Land Claims Agreement Act , S.N.L. 2004, c. L-3.1 . [ 45 ] The Agreement sets out principles for the establishment of a free and democratic government for Inuit. [ 46 ]

Chapter 17 of the Agreement is entitled “Labrador Inuit Self-Government”.

Section 17.3 is entitled “Labrador Inuit Constitution”. It provides: 17.3.1 Inuit shall establish the Labrador Inuit Constitution. 17.3.2 The Labrador Inuit Constitution shall be effective as the fundamental law of Inuit to the extent that it is consistent with the Agreement. 17.3.3 The Labrador Inuit Constitution shall provide for the following matters: (

a) the establishment of a government for Inuit and Labrador Inuit Lands, to be known as the Nunatsiavut Government, and the legislative and executive institutions of the Nunatsiavut Government, including their composition, powers, and duties; (

b) subject to

part 17.40, the establishment of a local government for each of the Inuit Communities and matters related to their organization and administration, including the powers of the AngajukKak; (

c) a guarantee of the right of Inuit to participate in the institutions of Inuit Government; (

d) a requirement that the executive officers and the members of the legislative institutions of the Nunatsiavut Government be responsible to Inuit in accordance with principles of democracy; (

e) subject to

part 17.40, the establishment of the qualifications of and procedures for the selection of the executive officers and the election of members of the legislative institutions of Inuit Government; (

f) a requirement that the Nunatsiavut Government be financially accountable to Inuit; (

g) a requirement that Inuit Government establish rules respecting conflict of interest for executive officers, members of legislative institutions and officials and employees of Inuit Government; (

h) the establishment of procedures for challenges of an Inuit Law or a Bylaw; and (

i) amendment of the Labrador Inuit Constitution by Inuit, in accordance with principles of democracy. [ 47 ] The Nunatsiavut Constitution Act gives effect to the Labrador Inuit Constitution . [ 48 ]

Chapter 4 of the Nunatsiavut Constitution Act establishes the Nunatsiavut Assembly as the Labrador Inuit parliament for Nunatsiavut:

Part 4.1 A Parliament for Nunatsiavut Parliament to be known as Nunatsiavut Assembly . 4.1.1 There shall be a Labrador Inuit parliament for Nunatsiavut to be known as the Nunatsiavut Assembly.

[ 49 ]

Part 4.16 of the Nunatsiavut Constitution Act concerns privileges of members of the Nunatsiavut Assembly. The following are of particular relevance:

Part 4.16 Privileges of Members of the Nunatsiavut Assembly Constitutional Privileges of Members 4.16.1 The President of Nunatsiavut, members of the Nunatsiavut Executive Council and members of the Nunatsiavut Assembly have freedom of speech in the Assembly and in its committees and subcommittees subject to the rules and orders of the Assembly.

Liability for Statements made in the Assembly 4.16.2 The President of Nunatsiavut, members of the Nunatsiavut Executive Council and members of the Nunatsiavut Assembly are not liable to proceedings, penalties or damages under any Inuit law for anything that they have said in, produced before or submitted to the Nunatsiavut Assembly or any of its committees or subcommittees or for anything revealed as a result of any statement in, production before or submission to the Assembly or any of its committees or subcommittees.

Additional Privileges 4.16.3 Other privileges and immunities of the President of Nunatsiavut, members of the Nunatsiavut Executive Council and members of the Nunatsiavut Assembly may be prescribed by Inuit law. [ 50 ] The Nunatsiavut Assembly Act , IL 2005-09, s. 43 (the “ Nunatsiavut Assembly Act ”) specifically confers upon the Assembly parliamentary privileges normally recognized in Westminster democracies. The Legislation utilizes expansive language to ensure the Assembly has all privileges, immunities and powers necessary to allow it to function as an effective parliament. [ 51 ]

Section 42 of the Nunatsiavut Assembly Act, provides as follows: Jurisdiction of the Assembly 42. The Assembly has exclusive jurisdiction, subject to the Constitution and this Act in respect of (

a) the conduct of the internal proceedings of the Assembly and its Committees, (

b) the conduct of its internal budgetary and financial affairs, and (

c) the enactment of Inuit Laws in relation to matters within the jurisdiction of the Nunatsiavut Government under the Labrador Inuit Land Claims Agreement. [ 52 ] Sections 43 and 44 of the Nunatsiavut Assembly Act state as follows: Privileges, immunities and powers generally 43. In addition to the privileges, immunities and powers conferred by this Act but subject to the Labrador Inuit Land Claims Agreement and the Constitution, the Assembly and its Members, and the Committees of the Assembly and their Members, have all privileges, immunities and powers necessary for purposes of

section 42 and for the Assembly's capacity to function as an effective parliamentary institution. 44. Without restricting the generality of

section 43:

(

a) the President, the members of the Nunatsiavut Executive Council, the members of the Nunatsiavut Assembly and the members of Committees have freedom of speech in the Assembly and in its Committees, subject to the Standing Orders of the Assembly; (IL 2011-06) (

b) the President, the members of the Nunatsiavut Executive Council, the members of the Nunatsiavut Assembly and the members of Committees have immunity from legal proceedings for things said in debate; (

c) the Assembly and Committees have the power to exclude strangers, disruptive and dangerous persons from the precincts of the Assembly; and (

d) the Assembly has exclusive control of publication of its debates and proceedings. [ 53 ]

Section 54 of the Nunatsiavut Assembly Act provides the Assembly with the power to inquire into, adjudicate and punish breaches of privileges of the Assembly and instances of contempt of the Assembly: Breaches of privilege and Instances of contempt of the Assembly 54. The Assembly may inquire into, adjudicate and punish breaches of the privileges of the Assembly and instances of contempt of the Assembly. [ 54 ] The foregoing demonstrates that the Nunatsiavut Government has all the appearances of a government with inherent jurisdiction crafted largely in the Westminster tradition.

The privileges, immunities, and powers afforded to its parliamentary body, the Nunatsiavut Assembly, are similar to those normally recognized in Westminster democracies. [ 55 ] Furthermore, and significantly, it must be remembered that parliamentary privilege helps preserve the separation of powers and promote the proper functioning of a representative democracy. This is achieved by protecting some areas of legislative activity from external review including by courts.

In my view, it would be contrary to the principles underlying the Agreement , aimed at ensuring the Inuit’s right to self-government, to deny the Nunatsiavut Assembly similar parliamentary privileges as those held by other legislative assemblies in this country. These privileges enable legislative assemblies to effectively function as parliamentary institutions. [ 56 ] I conclude that the Nunatsiavut Assembly, as a legislative body, has i nherent parliamentary privileges flowing from its creation as a Westminster model of parliamentary democracy.

It holds the privileges, immunities, and powers necessary for it to function as an effective parliamentary institution. [ 57 ] I now turn to the question of whether the resolution of the Nunatsiavut Assembly with respect to Ms. Saunders falls within a category of parliamentary privilege so as to immunize it from judicial review. Issue 2: Is the resolution to remove Ms. Saunders from office protected from judicial review because of parliamentary privilege?

Burden of Proof to Establish the Applicability of Parliamentary Privilege [ 58 ] The Nunatsiavut Assembly, as the party seeking to rely on the immunity provided by parliamentary privilege, has the onus of establishing its existence and scope ( Vaid at para. 8 ). The Test to be Met [ 59 ] Not all activities of a legislative assembly are protected from judicial review.

Rather the historical foundation of every parliamentary privilege is necessity. [ 60 ] The necessity test requires that the Assembly show that the sphere of activity for which privilege is claimed is so closely and directly connected with the fulfilment by the Assembly of its functions as a legislative and deliberative body that outside interference would undermine the level of autonomy required to enable it to do its work with dignity and efficiency ( Vaid at para. 46 ). [ 61 ] More recently in Chagnon , at paragraph 30 , the Supreme Court emphasized that the necessity test thus demands that the sphere of activity over which parliamentary 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. [ 62 ] Proof of necessity is required only to establish the existence and scope of a category of privilege. Once the category is established, it is for the legislative assembly, not the courts, to determine whether in a particular case the exercise of the privilege is necessary or appropriate ( Vaid at para. 29 (9)). [ 63 ] In Vaid , the Supreme Court of Canada set out a two-step test for parliamentary privilege at the federal level.

The first part of the test is to ask if the privilege has already been authoritatively established by precedent. If so, there is no need for the Court to continue to step two which is to ask whether the privilege is supported as a matter of principle under the necessity test. [ 64 ] In Vaid at paragraph 29 (10), the Supreme Court clearly acknowledged disciplinary authority over members as an established

category of parliamentary privilege. Hence, in this case, the Nunatsiavut Assembly submitted that as discipline of members of alegislative assembly is a recognized and well-established category of parliamentary privilege, there is no need to meet the necessity test.I disagree. [65] In my view, the Nunatsiavut Assembly’s position that the inquiry ends at step one of the Vaid test if the privilege isauthoritatively established, applies only to parliamentary privilege asserted at the federal level. [66] The distinction in this case is that (unlike the privileges held at the federal level) the privileges claimed by the NunatsiavutAssembly do not find their underpinning in

section 18 of the Constitution Act, 1867, 30 & 31 Victoria, c.3 (U.K.). [67] In my view, this case concerns inherent parliamentary privileges more in keeping with those of provincial legislativeassemblies. [68] In New Brunswick Broadcasting, the Supreme Court considered the recognized parliamentary privilege of a provinciallegislative body excluding strangers from its chamber.

Although the privilege had been well-established, McLaughlin J. nonethelessexplored whether it continued to be necessary to the current functioning of the legislature. [69] At paragraph 139, McLaughlin, J. wrote: The fact that this privilege has been upheld for many centuries, abroad and in Canada, is some evidence that it is generally regarded asessential to the proper functioning of a legislature patterned on the British model.

However, it behooves us to ask anew: in the Canadiancontext of 1992, is the right to exclude strangers necessary to the functioning of our legislative bodies? [70] The question of the applicability of step one of the Vaid test in dealing with parliamentary privilege at the provincial level wasaddressed by the Ontario Court of Appeal in Duffy v.

Canada (Senate), 2020 ONCA 536, at paragraphs 99 and 100 where Jamal, J.A.wrote: 99 Step one — whether the privilege is authoritatively established by British or Canadian precedent — applies to parliamentaryprivilege at the federal level but not to legislated parliamentary privilege at the provincial level because s. 18 of the Constitution Act,1867 authorizes Parliament to enact laws defining the privileges of the Senate and the House of Commons.

Parliament has done sothrough s. 4 of the Parliament of Canada Act by defining those privileges by reference to the privileges of the House of Commons in theUnited Kingdom. There is thus no need to inquire into the necessity of federal parliamentary privileges — the "main body" of which arelegislated — because the constitutional status of those privileges has been put beyond question by express constitutional and legislativeenactments in s. 18 of the Constitution Act, 1867 and s. 4 of the Parliament of Canada Act: Vaid, at para. 36.

This is not true of legislatedparliamentary privileges at the provincial level, which would likely have to meet the necessity test. 100 Binnie J. also explained in Vaid that inherent parliamentary privileges at the provincial level must always meet the necessity test,at para. 29(6): When the existence of a category (or sphere of activity) for which inherent privilege is claimed (at least at the provinciallevel) is put in issue, the court must not only look at the historical roots of the claim but also to determine whether the categoryof inherent privilege continues to be necessary to the functioning of the legislative body today.

Parliamentary history, while highlyrelevant, is not conclusive. [71] This

interpretation is consistent with the Supreme Court’s statement in Chagnon, at paragraph 31, that even if a category hashistorically been considered subject to parliamentary privilege, it may only continue to be so if it remains necessary to the independentfunctioning of our legislative bodies today. [72] In my view, the second step set out in Vaid – the necessity test – must be met by the Nunatsiavut Assembly in establishing theexistence and scope of the privilege claimed. [73] In this

interpretation of the Vaid test, I adopt the reasoning and conclusion of the Ontario Court of Appeal in Duffy, atparagraph 102: To summarize the direction from Vaid: (1) at the federal level, the two-step approach applies to both legislated and inherentparliamentary privilege; (2) at the provincial level, inherent parliamentary privilege must always meet the necessity test, while alegislated parliamentary privilege would likely have to do so.

Sub-issue 2(i): The existence and scope of the privilege claimed The Existence of the Category of Privilege Claimed [74] The Nunatsiavut Assembly asserts that its decision, and by extension the actions of the Discipline Committee, is protected byparliamentary privilege.

Specifically, the claimed category of privilege is the Nunatsiavut Assembly’s disciplinary authority over itsmembers including the regulation of the standards and conduct of its members. [75] Discipline of members of a legislative assembly has long been held to be within the sphere of parliamentary privilege relatingto controlling the assembly’s own proceedings and setting standards (Harvey v. New Brunswick (Attorney General), (SCC), [1996] 2 S.C.R. 876, at paragraphs 61-62). [76] In Harvey, McLachlin, J. at paragraph 64, stated, “The history of the prerogative of Parliament and legislative assemblies to

maintain the integrity of their processes by disciplining, purging and disqualifying those who abuse them is as old as Parliament itself.” [ 77 ] Although it is not sufficient to establish the existence of a privilege by pointing to the fact that it has historically been recognized, proof of the continuing necessity of the privilege may rest, in part, on evidence that it has been long acquiesced in and exercised ( Vaid at para. 29 (8) citing Stockdale v.

Hansard , at p. 1189). [ 78 ] I am satisfied that the ability of a legislative assembly to regulate its internal affairs, including the conduct of its members, is an established category of parliamentary privilege. I further accept that this privilege continues in contemporary times, to meet the necessity test. It is necessary for the Nunatsiavut Assembly’s fulfillment of its function as a legislative and deliberative body.

If members could resort to the Court to intervene whenever the Assembly invoked its privilege to discipline members, this would undermine the level of autonomy required to enable it to do its work with dignity and efficiency. In this regard, the immunity sought from judicial review is necessary to the Assembly’s role as a parliamentary institution. [ 79 ] The existence, however, of the category of privilege to discipline members is not the key issue in this case. Rather, it is the scope of the privilege and whether it covers the factual circumstances surrounding Ms. Saunders’ removal from office.

I now turn to a consideration of that question. The Scope of the Privilege Claimed [ 80 ] It is the Court’s role not only to determine whether a privilege exists but also to delimit its scope. [ 81 ] In Chagnon , although the privilege of the provincial legislative assembly to exclude strangers was acknowledged to have long been recognized, it was not necessary to the legislative body to perform its constitutional functions for the scope of the privilege to include the decision to dismiss employees (security guards) who implemented the privilege on the assembly’s behalf.

Therefore, while existence of a category of privilege may be established, the Court still must examine its scope and ensure that it only extends so far as is necessary. [ 82 ] In Chagnon , Karakatsanis J., writing for the majority, emphasized the importance of a purposive approach in assessing claims of parliamentary privilege. Given the inherent nature of parliamentary privilege, its existence and scope must be strictly anchored to its rationale.

The scope of parliamentary privilege should extend only so far as is necessary for the proper functioning of a constitutional democracy ( Chagnon at paras. 2 and 27 ). [ 83 ] Ms. Saunders contends that the scope of the privilege to discipline her as a member of the Nunatsiavut Assembly was exceeded in (1) the type of behavior targeted; and (2) the type of sanction imposed. [ 84 ] On the other hand, the Nunatsiavut Assembly submits that the issues raised by Ms. Saunders go to the exercise of the privilege, not its scope.

It contends that it is for the Nunatsiavut Assembly to determine whether, in the particular circumstances, the exercise of the privilege is necessary or appropriate. [ 85 ] As noted in Vaid at paragraph 47 , “The distinction between defining the scope of a privilege, which is the function of the courts, and judging the appropriateness of its exercise, which is a matter for the legislative assembly, may sometimes be difficult to draw in practice.” [ 86 ] For the reasons that follow, I agree with the position of the Nunastviuat Assembly: the points raised by Ms.

Saunders go to the exercise of the privilege, not its scope.

(1) The type of behavior targeted [ 87 ] Ms. Saunders accepts that the privilege of the Nunatsiavut Assembly to discipline her as a member is established. She contends however, that the scope of the privilege should not extend to her conduct while acting in a personal capacity outside the Assembly nor when she is expressing herself on a social media platform. Such a scope, Ms. Saunders submits, would extend the privilege beyond what is necessary for the Nunatsiavut Assembly to carry out its legislative and deliberative functions. [ 88 ] Although the conduct for which the Discipline Committee sanctioned Ms.

Saunders did not occur within the Assembly, or while she was acting in her official capacity, it was investigated as a breach of the Member’s Code of Conduct . Unless ultimately I were to find that parliamentary privilege is not applicable, I must be careful at this stage, not to delve into a review of the decision to discipline. For the purposes of addressing Ms. Saunders’ point that her personal conduct should not be caught by the privilege, I note one of the provisions of the Code of Conduct for which she was found to be in breach was

section 2.4. That

section states that elected officials must not engage in personal conduct that would tend to bring discredit to their offices. [ 89 ] In Harvey , McLachlin J. (as she then was), concurring with the majority in the result, affirmed that a provincial legislature’s power to disqualify from office a member convicted of an illegal practice under provincial elections legislation involves an exercise of parliamentary privilege, and was immune from judicial review. [ 90 ] Further, at paragraph 67 of Harvey , McLaughlin, J. stated, “It is thus clear that Parliament and the legislatures of Canada are not confined to regulating procedure within their own chambers, but also have the power to impose rules and sanctions pertaining to transgressions committed outside their chambers.” [ 91 ] I find that the parliamentary privilege of the Nunatsiavut Assembly to discipline members is not limited to imposing sanctions for conduct that occurs inside the Assembly or its committees.

Nor is it limited to whether Ms. Saunders was acting in her official capacity at the time of the initial transgressions for which the Discipline Committee sanctioned her. The governance of members’ conduct is integral, and thus necessary, to maintaining the dignity and independence of the Assembly.

[ 92 ] The Nunatsiavut Assembly, through its discipline process, examined the nature of the impugned conduct and concluded that it fell within the conduct governed by the Code of Conduct , and Ms. Saunders’ oath of office. The Nunatsiavut Assembly determined that it was appropriate to exercise its privilege to discipline. [ 93 ] In challenging the type of behavior subject to sanction, Ms.

Saunders is asking the Court to look beyond the determination reached by the Nunatsiavut Assembly and conduct its own assessment of whether her behavior was such to have warranted the exercise by the Assembly of its privilege to discipline her as a member. [ 94 ] I conclude that this would not be an examination of the scope of the privilege but rather a review of the Nunatsiavut Assembly’s decision to exercise its privilege to discipline based upon the investigation conducted by the Discipline Committee. The Court must not cross the line into the Assembly’s arena by reviewing that decision.

(2) The type of sanction imposed [ 95 ] Ms. Saunders submits that the imposition of a type of discipline that required her to apologize publicly in several forums exceeded the scope of the privilege in that such a sanction is not necessary for the effective functioning of the Assembly. This argument presupposes that the punishment imposed goes to the scope of the privilege – not its exercise. [ 96 ] Ms. Saunders relies on Landers v. Woodworth (1878), 1878 CanLII 25 (SCC) , 2 S.C.R. 158 .

In Landers , a member of the House of Assembly of Nova Scotia was ordered, by resolution of the Assembly, to apologize for making an unfounded accusation of misconduct against the Provincial Secretary. The apology was to be given in public at the bar of the House with the doors open and in words crafted by the House. Mr. Landers refused to apologize and was forcibly removed from the Assembly. Mr. Landers successfully brought a civil action against the Speaker of the House and fellow members for damages.

The Supreme Court upheld the decision on the basis that the legislative assembly, without prescription or statute, did not have the power to punish a member for contempt. [ 97 ] I find Landers to be distinguishable in that in the case before me,

section 54 of the Nunatsiavut Assembly Act provides the Nunatsiavut Assembly with the power to inquire into, adjudicate and punish breaches of privilege and contempt of the Assembly. [ 98 ] In its resolution to remove Ms. Saunders from office, the Nunatsiavut Assembly found, amongst other things, that her conduct demonstrated contempt for the Assembly and constituted a breach of 55(

c) of the Nunatsiavut Assembly Act. [ 99 ]

Section 55(

c) of the Nunatsiavut Assembly Act further provides as follows: 55. Without restricting the generality of

section 54 the following acts by Inuit or Members constitute breaches of privilege or instances of contempt of the Assembly to which that

section applies and are prohibited: … (

c) the refusal or failure of an officer of the Assembly, or other person, to obey a rule or resolution of the Assembly or an order of the Speaker, Deputy Speaker or Committee chair. [ 100 ]

Section 56 of the Nunatsiavut Assembly Act , sets out the penalties to be imposed on a person found to have committed contempt of the Assembly. It states as follows: Penalties 56. Every person who is found by the Assembly to have committed a breach of privilege or an instance of contempt of the Assembly under sections 50-55, inclusive, in addition to any other penalty or punishment to which the person may be subject by law, is liable to: (

a) a penalty in an amount, not exceeding $ 2,000.00, determined by resolution of the Assembly and by order of the Speaker; and (

b) in the case of a Member, the suspension of the Member's right to sit and vote in the Assembly or a Committee permanently, indefinitely, for a stated period or until the fulfillment of a condition in the order. (IL 2018-05) [ 101 ]

Section 57 of the Nunatsiavut Assembly Act provides that “the imposition of a penalty under

section 56 is final”. [ 102 ] Furthermore, the Nunatsiavut Assembly found that Ms. Saunders’ conduct not only constituted contempt of the Assembly but was also contrary to her oath of office to obey, respect and uphold the Labrador Inuit Constitution and Inuit laws and that it was inconsistent with the Principles set out in

section 1.1.3(

n) and 1.1.3(

y) of the Labrador Inuit Constitution . [ 103 ]

Section 1.1.3 (

n) and 1.1.3. (

y) of the Labrador Inuit Constitution provide as follows: (

n) the understanding that the status, powers and functions granted to leaders and representatives of the Inuit of Labrador are entrusted to them for the benefit of all Inuit of Labrador in the expectation that leaders and representatives of the Inuit of Labrador will lead lives deserving of respect, be respectful and considerate of all people, give guidance, act wisely, fairly and surely in the exercise of

their powers, seek balance and agreement in their decisions, avoid conflict, and serve without showing favour or prejudice and withoutpursuing personal gain; … (

y) acknowledgement of the rule of law. [104]

Section 4.3.7. of the Nunatsiavut Constitution Act and

section 17 of the Nunatsiavut Assembly Act allow for the removal of amember of the Assembly from office by resolution of the Assembly adopted under a supporting vote of at least 60% of its members onlyon the grounds of:

a) a serious violation of the Labrador Inuit Constitution or Inuit law;

b) becoming unable to perform the functions of office; or

c) unethical or immoral behaviour, including a serious breach of any code of conduct, including a code of ethics and conflict ofinterest guidelines, that may be established by the Assembly for its members. [105] The Nunatsiavut Assembly decided that Ms. Saunders’ conduct was contrary to the Code of Conduct, her oath of office, and inviolation of the Labrador Inuit Constitution and Inuit law such as to deserve removal as a member of the Assembly pursuant to Section4.3.7. of the Nunatsiavut Constitution Act and

section 17 of the Nunatsiavut Assembly Act. That decision falls squarely within theparliamentary privilege of the Nunatsiavut Assembly to regulate the standards and conduct of its members. [106] Ms. Saunders further asked the Court, in assessing the scope of the privilege, to consider the effect on her freedom of speech inimposing a sanction that compelled her to apologize in the manner directed. Ms. Saunders submits that this constituted a breach of herfreedom of speech pursuant to

section 2(

b) of the Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, beingSchedule B to the Canada Act 1982 (U.K.), 1982, c. 11. [107] In Chagnon at paragraph 28, Karakatsanis J. discussed the approach to be taken in circumstances where a claimed privilege couldimpact Charter rights: Where the privilege that is claimed could undermine the Charter rights of people who are not members of the legislative assembly, apurposive approach helps to reconcile parliamentary privilege with the Charter. Neither the Charter nor parliamentary privilege“prevails over the other” (Harvey v.

New Brunswick (Attorney General), (SCC), [1996] 2 S.C.R. 876 (S.C.C.), at para.69). They “enjo[y] the same constitutional weight and status” (Vaid, at para. 34 (emphasis deleted)). Accordingly, when conflictsbetween the Charter and parliamentary privilege arise, “the proper approach is not to resolve the conflict by subordinating one principleto the other, but rather to attempt to reconcile them” (Harvey, at para. 69)…. [108] Karakatsanis J. continued by stating, “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.” [109] In making the comments, found at paragraph 28 of Chagnon, Karakatsanis J. is referring to the court’s role in assessing the scopeof the privilege – not its exercise.

The importance of delimiting the scope of the privilege including consideration of Charter implicationsis because once the existence and scope of the privilege is determined, the court has no role to go further and examine the exercise of theprivilege. [110] This point is articulated by Karakatsanis J. at paragraph 24 of Chagnon: [24] When tethered to its purposes, parliamentary privilege is an important part of the public law of Canada (see Vaid, at para. 29(3)).The insulation from external review that privilege provides is a key component of our constitutional structure and the law that governs it.Judicial review of the exercise of parliamentary privilege, even for Charter compliance, would effectively nullify the necessaryimmunity 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). [emphasis added]. [111] In my view, Ms.

Saunders’ issue with the type of sanction imposed by the Discipline Committee, in the factual circumstances ofthis case, goes to the exercise of the privilege, not the scope of the privilege. The Assembly decided to invoke its privilege to disciplineone of its members. The ultimate decision to remove Ms. Saunders from office fell within the jurisdiction of the Assembly. Theresolution for removal was debated in the Assembly where Ms.

Saunders was afforded an opportunity to speak and address anyshortcomings she may have perceived in the disciplinary process, which preceded and laid the foundation for the Assembly’s resolution.This would include raising any issue with respect to the initial sanction imposed by the Disciplinary Committee and whether it infringedher right to freedom of speech. [112] If Ms. Saunders has been dealt with harshly or unfairly, she was not without recourse. Ms. Saunders’ argument that having to

apologize in multiple forums and in a manner that, in her view, would cause her to declare herself to be dishonest was an issue for debate, deliberation, and decision by the Assembly. Beyond that forum, her recourse lies with the electorate – not the Court. Sub-Issue 2 (ii): Has the Nunatsiavut Assembly’s privilege to discipline members been statutorily curtailed? [ 113 ] Ms. Saunders contends that the privilege to discipline has been curtailed by

section 5.5 of the Code of Conduct in that it prescribes: (1) the type of sanction that could be administered by the Discipline Committee; and (2) the disciplinary process that was to be undertaken. [ 114 ] With respect to the first point, Ms. Saunders contends that the decision by the Discipline Committee to have her apologize was not a sanction available under the Code of Conduct . [ 115 ]

Section 5.5(

h) of the Code of Conduct sets out the penalties available if the Discipline Committee finds a member guilty of misconduct. The penalties relevant to this case are as follows: (

h) if the Discipline Committee finds a member guilty of misconduct, it must impose one of the following penalties: (

i) a reprimand, or (ii) a suspension from office without pay; or (iii ) a recommendation for removal from office; and … [ 116 ] With respect to the second point, Ms. Saunders submits that her refusal to apologize should have constituted a second formal complaint against her and should have been dealt with in accordance with the specific disciplinary process set out in the Code of Conduct . [ 117 ] Sections 5.5(

f) and (

g) of the Code of Conduct outline the procedure that the Discipline Committee is to follow: (

f) the Discipline Committee must: (

i) review the application and all responses received from the member and the applicant, (ii) ensure that a copy of the member's response is sent to the Applicant who may present further information and arguments after reading the member's response, and (iii) give a further opportunity to the member to respond to anything the applicant may say; (

g) when all the responses have been received, the Discipline Committee must consider both the application and the responses, may make further inquiries and conduct formal hearings, and on the basis of the information before it make one of the following decisions: (

i) the information disclosed does not support a finding of misconduct, (ii) the information discloses conduct meriting counseling as to proper conduct in accordance with the code of Conduct, or cautioning, or both, or (iii) the information disclosed by the investigation supports a finding of misconduct; [ 118 ] Ms. Saunders contends that these sections of the Code of Conduct limit the scope of the category of privilege over the discipline of a member by the Assembly by dictating, through the use of mandatory language, the specific disciplinary process that must be followed. Specifically, Ms.

Saunders submits that a new Discipline Committee should have been constituted to investigate whether she was guilty of misconduct by refusing to apologize and the disciplinary process mandated by the Code of Conduct should have been

followed. [119] Overall, Ms. Saunders submits that the decision of the Assembly to legislate through the Code of Conduct, the specific sanctionsthat could be imposed and the disciplinary process to be followed represents a self-imposed limitation of the scope of the parliamentarypower of the Assembly to discipline its members. This limitation, Ms. Saunders contends, renders the disciplinary decision of theAssembly susceptible to review by the Court. [120] For its part, the Nunatsiavut Assembly submits that although an apology may not be specifically mentioned as a penalty undersection 5.5(

h) of the Code of Conduct, an apology is ancillary to a reprimand, which is specifically prescribed. More broadly, theNunatsiavut Assembly contends that there is nothing in the language of the Code of Conduct to delimit the scope of its privilege withrespect to either point raised by Ms. Saunders. It submits that even if the Discipline Committee committed an error of law in interpretingits mandate, it is not for the Court to intervene as the privilege to discipline rests exclusively with the Nunatsiavut Assembly. [121] In making her submission, Ms.

Saunders relies upon comments made by Rowe J. in Chagnon (a decision in which he concurred inthe result but for separate reasons from the majority). Writing for the majority in Chagnon, Karakatsansis J. concluded that there wasnothing in the legislation, which was the subject of that case, that abrogated the legislative assembly’s inherent privilege. [122] The comments of Justice Rowe that Ms. Saunders relies upon are contained in paragraph 66 of Chagnon: 66 Parliamentary privilege should not, however, be invoked to bypass the application of a statute enacted by the legislature to govern itsown 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's privilege.It is not an impediment to the functioning of a legislature for it to comply with its own enactments.

Accordingly, when a legislature hasset out in legislation how something previously governed pursuant to privilege is to operate, the legislature no longer can rely oninherent privilege so as to bypass the statute. Thus, I would distance myself from Stephen J.'s views in Bradlaugh v. Gossett (1884), 12Q.B.D. 271 (Eng. Q.B.), 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". [123] In the comments relied upon by Ms.

Saunders, Rowe J. distanced himself from the rule of Bradlaugh v. Gossett (1884), 12 Q.B.D.271 (Eng. Q.B.), 50 L.T. 620, at p. 278. That rule was earlier adopted by the Supreme Court in Temple v. Bulmer, (SCC),[1943] S.C.R. 265, 3 D.L.R. 649, and recognized by the majority of the Supreme Court in Vaid, at paragraph 34, where Binnie J. wrote: Historically, the legislative source of some privileges (e.g., art. 9 of the Bill of Rights of 1689) did not diminish the jurisdictionalimmunity they attracted. In Bradlaugh v. Gossett (1884), 12 Q.B.D. 271 (Eng.

Q.B.), Stephen J. stated, at p. 278: I think that the House of Commons is not subject to the control of Her Majesty’s Courts in its administration of that part of thestatute-law which has relation to its own internal proceedings . . . [Emphasis added.] The same rule was adopted in Canada (Temple v. Bulmer, (SCC), [1943] S.C.R. 265 (S.C.C.); Carter v. Alberta (2002),222 D.L.R. (4th) 40, 2002 ABCA 303 (Alta. C.A.), at para. 20, leave to appeal refused, [2003] 1 S.C.R. vii (S.C.C.)).

The immunityfrom external review flowing from the doctrine of privilege is conferred by the nature of the function (the Westminster model ofparliamentary democracy), not the source of the legal rule (i.e inherent privilege versus legislated privilege). The doctrine of privilegeattaching to a constitution “similar in Principle to that of the United Kingdom” under the

preamble to the Constitution Act, 1867 is notdisplaced by the wording of s. 32(1) of the Charter. As pointed out in New Brunswick Broadcasting, parliamentary privilege enjoys thesame constitutional weight and status as the Charter itself. . . . [124] Assuming for purposes of consideration of Ms. Saunders’ submission that the view expressed by Rowe J. with respect to the rulein Bradlaugh is accepted, I do not find that the comments by Rowe J. at paragraph 66 in Chagnon applicable to the circumstances of thecase before me.

This is because in Chagnon, the nature of the legislation being considered by the Supreme Court was constitutional. TheCode of Conduct in the case before me is not of such nature. [125] At paragraph 69 of Chagnon, Rowe, J. describes the type of legislation under consideration as “the legislature’s organizingstatute”, an enactment that “determine[s] the composition, powers, authority, privileges and duties of the legislative [branch]” and as“constitutional in nature”. [126] The Code of Conduct is not the Nunatsiavut Assembly’s organizing statute.

Nor is it the enactment that determines thecomposition, powers, authority, privileges, and duties of the legislative branch. I do not find that it is constitutional in nature.

[ 127 ] On the other hand, I find that the Nunatsiavut Assembly Act is the organizing statute for the Nunatsiavut Assembly and conveys powers on the Nunatsiavut Assembly for the punishment of members. It was pursuant to that legislation that Ms. Saunders was removed from office. [ 128 ] I now turn to the consideration of the appropriate rule of

interpretation to be applied in analyzing the wording of the Code of Conduct in terms of the type of sanction or the process to be followed in the investigatory and disciplinary process. [ 129 ] At common law, the rule of Newcastle (Duke) v. Morris (1870), L.R. 4 H.L. 661, 23 L.T. 569, at page 668, held that parliamentary privilege was not “struck at unless by express words in the statute.” [ 130 ] This is the rule of

interpretation that has historically been followed in the Court when dealing with parliamentary privilege. In March v. Hodder , 2007 NLTD 93 , at paragraph 86 , Orsborn, J. stated that, “an area of privilege may be indeed circumscribed by statute, but, as the authorities point out, clear wording is required to achieve this.” [ 131 ] The Newcastle rule of

interpretation appears, however, to have been qualified by the Supreme Court in Vaid where it described the rule as being out of step with modern principles of statutory

interpretation. At paragraph 80, Binnie J. wrote on behalf of the majority: 80 The appellants argue that the Canadian Human Rights Act "has no application to the House of Commons and its members because it does not so expressly provide" (Duke of Newcastle v. Morris) . This argument cannot be accepted for a number of reasons. Firstly, the argument presupposes the prior establishment of a parliamentary privilege, which has not been done. Secondly, the "presumption" suggested by Lord Hatherley 135 years ago is out of step with modern principles of statutory

interpretation accepted in Canada, as set out in Driedger's Construction of Statutes (2nd ed. 1983): Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament [p. 87]. This approach was recently affirmed in Bell ExpressVu Ltd. Partnership v. Rex , [2002] 2 S.C.R. 559, 2002 SCC 42 (S.C.C.) , at para. 26 , and R. v. Sharpe , [2001] 1 S.C.R. 45, 2001 SCC 2 (S.C.C.) , at para. 33 , and is reinforced by s. 12 of the

Interpretation Act , R.S.C. 1985, c. I-21 , which provides that every enactment "is deemed remedial, and shall be given such fair, large and liberal construction and

interpretation as best ensures the attainment of its objects". Such interpretative principles apply with special force in the application of human rights laws. [ 132 ] In Chagnon , at paragraph 69 , Rowe J. expressed the view that the rule in Newcastle could still operate in certain circumstances. He did not apply the rule in that case, however, because of the nature of the legislation under consideration - the legislature’s organizing statute. [ 133 ] If I were to apply the rule of Newcastle to the

interpretation of the Code of Conduct , express language would be required to abrogate the privilege. In my view, this would be a more stringent test and if it were applied, I would find that it had not been met in this case. [ 134 ] I will instead apply the modern principles of statutory

interpretation to the Code of Conduct . Such an

interpretation includes reading the words of the Code of Conduct in its entire context and harmoniously with its scheme, its object, and the intention of the Nunatsiavut Assembly. [ 135 ] I begin with the stated purpose of the Code of Conduct as set out in

section 1.4: 1.4 The purpose of the Code of Conduct is to (

a) affirm that service in the Nunatsiavut Assembly, on the Nunatsiavut Executive Council, in an Inuit Community Government, and in an Inuit Community Corporation is a public trust; (

b) maintain confidence in the integrity and value of Inuit self-government and its officers and institutions; (

c) hold Elected Officials to standards that place the public interest ahead of private interests; (

d) provide the means by which questions relating to the conduct of elected Officials may be addressed; and (

e) ensure that Elected Officials are held accountable for violating the Code of Conduct. [ 136 ] The purposes of the Code of Conduct include maintaining confidence in the integrity and value of Inuit self-government and to

ensure that members are held accountable for violating the Code of Conduct . In my view, these purposes reinforce, rather than abrogate, the privilege of the Assembly to discipline its members. If the Court were to be permitted to second-guess the Assembly’s decision in disciplining members, this would undermine its privilege and risk creating a loss of confidence in Inuit self-government. [ 137 ] Further, in giving the Code of Conduct a fair, large, and liberal

interpretation as best ensures the attainment of its objects, in my view, includes reading it together with the provisions of the Nunatsiavut Assembly Act which speak to the powers to the Assembly regarding discipline of its members. [ 138 ] As noted above,

Section 54 of the Nunatsiavut Assembly Act provides the Nunatsiavut Assembly with broad powers to “inquire into, adjudicate and punish breaches of privileges of the Assembly and instances of contempt of the Assembly.” [ 139 ] Ms. Saunders was sanctioned, in part, by the Nunatsiavut Assembly by way of

section 55 of the Nunatsiavut Assembly Act which, without restricting the generality of

section 54, sets out the acts by members that constitute breaches of privilege or instances of contempt of the Assembly. Ultimately, Ms. Saunders was removed from office pursuant to the powers afforded the Assembly through

section 17 of the Nunatsiavut Assembly Act . [ 140 ] Although the Discipline Committee recommended that Saunders be removed from office for continuing to refuse to apologize, the Nunatsiavut Assembly was not bound by that decision. The Nunatsiavut Assembly made the final decision to remove Saunders from office.

It did so through its powers as prescribed under the Nunatsiavut Assembly Act . [ 141 ] It is acknowledged that the language of the Code of Conduct setting out the disciplinary process to be followed and the sanctions available to the Discipline Committee appears mandatory as noted by the use of the word “must”. This does not mean, however, that the autonomy of the Assembly over discipline of its members has been curtailed or relinquished such that the Court can intervene if the legislated disciplinary process or sanctions were not followed.

There is nothing in the language of the Code of Conduct that removes the privilege to discipline from the Nunatsiavut Assembly. [ 142 ] If the Discipline Committee did not follow the process or exceeded its mandate by imposing on Ms. Saunders a sanction that was not authorized by the Code of Conduct , that is a matter that falls within the jurisdiction of the Nunatsiavut Assembly to adjudicate as this goes to the exercise of the privilege. It is not a matter of concern for the Court. This is so even if there were issues, as alleged, of procedural fairness or errors of law in the

interpretation of the legislation. [ 143 ] Duffy is a recent example of the court’s lack of jurisdiction when parliamentary privilege applies - even in the face of alleged deliberate wrongful acts. Mr. Duffy commenced a civil action, which included alleged unlawful and potentially criminal interference in an investigation that led to a decision by the Senate to reprimand him. Notwithstanding those serious allegations, the Ontario Court of Appeal upheld the trial judge’s decision that the court had no jurisdiction to hear the case.

This was because adjudication by the court would unavoidably call into question the disciplinary and internal decisions taken by the Senate on matters that ordinarily fall within established categories of parliamentary privilege ( Duffy at paras. 80 and 81 ). [ 144 ] I conclude that the Nunatsiavut Assembly’s privilege to discipline its members has not been curtailed. The parliamentary privilege to discipline Ms. Saunders, including her removal from office, remained with the Nunatsiavut Assembly. Ms.

Saunders’ recourse in terms of addressing any perceived transgressions in the process leading up to her removal lay within the jurisdiction of the Nunatsiavut Assembly. Conclusion on Issue 2: Parliamentary Privilege Applies [ 145 ] The Nunatsiavut Assembly’s parliamentary privilege over the regulation of its internal affairs, including its privilege to regulate the standards and conduct of its members, applies to the resolution of the Nunatsiavut Assembly to remove Ms. Saunders from office.

SUMMARY AND DISPOSITION [ 146 ] The Nunatsiavut Assembly, as a legislative body, holds all privileges, immunities, and powers necessary for it to function as an effective parliamentary institution. [ 147 ] I am satisfied that the Nunatsiavut Assembly has met the onus of establishing on a balance of probabilities that its parliamentary privilege over the discipline of its members applies to its resolution to remove Ms. Saunders from office. Therefore, the Court has no jurisdiction to review the resolution or the disciplinary process that led to it. [ 148 ] The Application for judicial review is dismissed.

The parties have leave to address the Court on costs. _____________________________ Sandra R. Chaytor Justice