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

• Author: Dufresne, Philippe

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

Introduction

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

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

Background

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

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

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

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

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

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

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

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

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

In Chagnon, the Supreme Court confirmed that parliamentary privilege is not outside the law but is an important part of the law, and indeed of the rule of law...