No Court Enforceable Duty to Consult in Preparation, Introduction and enacting Legislation; But what role for Parliament?

On October 11, 2018 the Supreme Court of Canada in Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40 determined that the duty to consult indigenous peoples flowing from section 35 of the Constitution Act, 1982 did not apply to the work of Ministers in the preparation and introduction of legislation.  The court also held that the duty to consult did not apply to legislatures and the legislative process.  For the courts to allow for review for and of consultation during the preparation and enactment of legislation would infringe on the separation of powers and parliamentary sovereignty.


In coming to its conclusion, the court made it clear that the preparation and introduction of legislation by the government (Ministers) was not part of their executive functions, which are subject to the duty to consult, but rather part of their legislative functions.  Since the courts cannot interfere with legislative functions and processes, the manner in which the government prepares legislation, including the manner and degree to which they consult,  is immune from judicial review.


Justice Karakatsanis, writing for herself, the Chief Justice and Justice Gascon wrote:

I conclude that the law-making process — that is, the development, passage, and enactment of legislation — does not trigger the duty to consult. The separation of powers and parliamentary sovereignty dictate that courts should forebear from intervening in the law-making process. Therefore, the duty to consult doctrine is ill-suited for legislative action.



The development of legislation by ministers is part of the law-making process, and this process is generally protected from judicial oversight. Further, this Court’s jurisprudence makes clear that, if Cabinet is restrained from introducing legislation, then this effectively restrains Parliament [cite omitted] This Court has emphasized the importance of safeguarding the law-making process from judicial supervision on numerous occasions.


Applying the duty to consult doctrine during the law making process would lead to significant judicial incursion into the workings of the legislature, even if such a duty were only enforced post-enactment.  The duty to consult jurisprudence has developed a spectrum of consultation requirements that fit in the context of administrative decision making processes.  Directly imposing such executive requirements into the legislative context would be an inappropriate constraint on legislatures’ ability to control their own processes.


I conclude that no aspect of the law-making process — from the development of legislation to its enactment — triggers a duty to consult. In the duty to consult context, “Crown conduct” has only been found to include executive action or action taken on behalf of the executive. I would not expand the application of the duty to consult doctrine to the legislative process.




Justice Rowe, concurring, on behalf of himself and Justices Moldaver and Cote, and furthering the reasoning of Justice Brown, were even firmer in their reliance on the conclusions and their reliance on the separation of powers and parliamentary sovereignty.  Whereas the majority may have left some wiggle room, these Justices were concerned that the speak definitively on this issue to avoid any future uncertainty.  He forcefully concludes:


Vindicating s. 35 rights does not require imposition of a duty to consult in the preparation of legislation. Indeed, the imposition of such a duty would be contrary to the distinction between the Crown and the legislature. It would offend the separation of powers. It would encroach on parliamentary privilege. It would involve the courts in supervising matters that they have always held back from doing. In short, imposing such a duty would not provide needed protection for s. 35 rights. Rather, it would offend foundational constitutional principles and create rather than resolve problems.


Justices Abella and Martin, although concurring on narrower grounds, would apply judicial review to the legislative branch on the question of Crown consultation.  For them, “the honour of the Crown infuses the entirety of the government’s relationship with Indigenous peoples, the duty to consult must apply to all exercises of authority which are subject to scrutiny under s. 35. This includes, in my view, the enactment of legislation.”   They fail to acknowledge and accept the damage to the constitutional architecture that judicial incursion into the legislative process would bring.  The waffling on the protections of Article 9 of the Bill of Rights, 1689 that precludes courts questioning or impeaching parliamentary proceedings, if it had been adopted by the majority, would have unduly constrained the legislative processes and the independence of the legislature.


The concerns of these judges is, I suggest, rooted not so much in a failure to understand the separation between the Crown in Parliament and the Crown as the executive (although for convenience they side step this apparent collapsing of roles) but rather in the adequacy of possible avenues for indigenous peoples to protect the constitutional imperative of consultation throughout the operations of the entire of constitutional machinery.   Although the remaining justices are clear in stating that the separation of powers and the underlying constitutional system of parliamentary sovereignty preclude the courts imposing and supervising any of the legislative process, they are all concerned enough about the possible effects of their decision (no direct judicial review) to identify numerous ways that indigenous litigants can bring the issue to court when challenging legislation once enacted, and any government or Crown actions, including regulation making, taken under any enacted legislation.


The reason the court struggles with the fallout of their judgement is they focus primarily on the role that the courts play in holding the government (Crown) to account for the failure to consult.  They identify the means that the courts can use to address consultation concerns after enactment of legislation.  They make this assessment based on the correct constitutional analysis that they cannot concern themselves with the legislative process.  This ex post facto result may suggest to some, including Justice Abella, that there is a constitutional gap and that the courts needed to plug it, and they failed to do so.


But there is no constitutional gap, what there is is a recognition that different constitutional actors are responsible at different points for the carrying out of constitutional analysis and “consultation”.   Not all of the work of oversight and constitutional accountability lies with the courts.  The first and most important line of accountability is that of the legislatures themselves.  The Supreme Court was correct in identifying the fact that Ministers in the preparation and introduction of legislation are carrying out a legislative function.  As such they are fully accountable to the legislature for the way in which they carried out, or failed to carry out, their legislative functions.   It is up to the legislature to hold the government to account for both the content of legislation as well as the means adopted by the government in preparing the legislation.  The legislature has a responsibility to require of the government an explanation of how it carried out its consultations.   At the same time, there is a responsibility of indigenous groups to bring their concerns to the legislature.   There are, or should be, mechanisms put in place by legislatures that will allow for these matters to be brought to the attention of legislatures.   The role of the legislature in this case is not to be a substitute consultative body (although it could choose to carry out its own consultations independent of government) but rather to hold the government to account for its failure to consult.   If legislatures are concerned with protecting the rights of indigenous peoples they have a responsibility to do their job in holding the government to account for carrying out its constitutional duties to indigenous peoples.   They should develop a robust process for examining how the Crown carried out its obligations and where it is not satisfied, require the government to fulfill these responsibilities before it is prepared to consider the government’s proposed legislation.   If legislatures accept this challenge, not only will it ensure that governments do fully consult, it will involve all Canadians, through their elected representatives, in discussions of the effect of legislation on indigenous groups, and result in legislation that more consistent with Canada’s constitution.


As Justice Rowe points out, the enactment of legislation is complex and time consuming.  But when the right questions are asked, and the responses considered throughout the legislative process, not only are the rights enshrined in the constitution protected, but the democratic institutions are strengthened.

For more on the ways in which legislatures can act to hold the government to account and protect rights see Steven Chaplin “Political and Parliamentary Accountability as an Aspect of Public Law”, 10 Journal of Parliamentary and Political Law 277.

A New Approach to Parliamentary Privilege for Employment Matters of Legislatures?

In 2005 the Supreme Court of Canada set out a comprehensive framework for examining claims of parliamentary privilege.  Courts could examine whether a matter over which privilege was claimed fell within a recognized category of privilege or could be demonstrated to be necessary for a legislature to carry out its constitutional functions.  Courts could determine the scope and extent of any claimed privilege and whether the matter at issue fell within the scope of the claimed privilege.  If it was established that it did, the courts could not inquire into the exercise of the privilege (i.e., how or why the matter was determined as it was).  In this earlier case of Vaid (2005 SCC 30) the Court determined that the management of employment matters was not, in an of itself, covered by the parliamentary privilege of legislatures to manage their internal affairs.  It did however leave open the possibility that certain employees and employment decisions might be covered by other privileges and therefore not be amenable to general labour and employment laws .  In that case the court stated that “ I have no doubt that privilege attaches to the House’s relations with some of its employees, but the appellants have insisted on the broadest possible coverage without leading any evidence to justify such a sweeping immunity, or a lesser immunity, or indeed any evidence of necessity at all.” (Vaid para 75).


In its recent decision in Chagnon v Syndicat de la function publique et parapublique du Quebec  (2018 SCC 39) the Supreme Court once again struggled with the relationship between employment decisions and parliamentary privilege, and once again refused a blanket application privilege over employment decisions, even though the employees carried out function that might have fallen within a recognized privilege. Chagnon is a case where the Court was asked to determine whether security personnel were such employees, and therefore fell within the category of “some employees” contemplated by the Court in Vaid.  In doing so the court, the court added a functional gloss to its earlier categories theory of activities covered by privilege.


The facts in Chagnon are straight forward.  Security personnel at the Quebec National Assembly were using surveillance equipment to peer into rooms in hotels near the Assembly.  They were dismissed, and they grieved this decision.  The Speaker of the Assembly claimed that the arbitrator did not have jurisdiction to inquire into the Speaker’s decision since to do so would infringe two privileges enjoyed by the Assembly.  First, the legislature has the privilege to ensure its own security and since these were security personnel, they were a category of employees that fell within the definition of “some employees” referred to in the Vaid decision.   In addition, the Speaker argued the related privilege of the legislature to exclude strangers.  Security personnel were required to assist the Speaker and the Assembly in carrying out this protected security measure and therefore were required to be trusted to be able to do so.  In both instances the arguments were based on the reasoning of the Court Vaid that focussed on categories of matters being the underlying structure for privilege and the focus of the question of who constituted “some employees” was also a question of categorization or grouping of employees. If this was the case, then privilege would apply to all decisions relating to such employees.


The Court, in Chagnon, recognized that the framework set out in Vaid was not nuanced enough.  Attempts to group, or distinguish, employees and all decisions relating to those employees into watertight containers was not possible.  Although all the Justices were prepared to acknowledge that the provision of security was a category of privilege, they were divided on whether this should be the basis to deny all personnel who carried out security functions recourse to the courts or labour boards for all decisions regarding them, including employment decisions. The Court puts the issue this way ” The present case highlights the difficulty with trying to recognize a category of privilege that includes all aspects of the management of a group of employees and decisions with regards to all functions these employees perform.“ (para 37)

The way around this problem, for the majority, was to shift the focus from categorization of work to classify groups of employees (in this case security) to one of the function or purpose of the decision under review.


This functional or pragmatic approach has two aspects.  First the Court focuses on the different types of decisions that may be required of managers (including the Speaker) that may affect employees. Some decisions are operational and relate to the work to be performed, and others are related to employment matters and other personnel management functions.  Decisions that are more operational or go to the carrying out of the function that is protected by privilege, such as the providing of security itself, or are intrinsically connected to these functions will be protected by privilege.  Those of a more managerial nature will not be protected.


[I]t may be necessary, to maintain order in the National Assembly’s chamber itself, for the President to have the absolute right to oversee certain functions exercised by a given group of employees or certain aspects of their employment relationship. But it does not necessarily require the recognition of a broad privilege over their management. Employees often perform diverse duties and many aspects of managing their employment relationship would have no bearing on the protection of the Assembly’s constitutional role. Unreviewable authority over all functions and absolute power over all aspects of how this group of employees is managed is not necessary in light of the purpose of inherent legislative privileges.  (para 45)


A second aspect of the approach is to ask whether the decision requested of the decision maker will have the effect of interfering with the privileges of the legislature.  In this case one would ask whether hearing a grievance of a dismissal interfers with a privilege—ie security or a decision related to security.


The necessity test also requires that the immunity that is sought from the executive and judicial branches of government — here a privilege over the management of the security guards — be necessary, in that “outside interference would undermine the level of autonomy required to enable the assembly and its members to do their work with dignity and efficiency” (Vaid, at para. 46).(Chagnon para 41)


The question for the Court essentially becomes twofold: the nature of the decision– or to use the category language of the Vaid decision, the category of the subject matter of the decision; and the effect of the decision on the constitutional functions of the legislature, or matters recognized as falling within parliamentary privilege   In Chagnon there was no evidence that the decision was anything other than a matter of employee discipline.  The decision itself appears to have no connection to the provision of security as such.  This was a mere garden variety labour decision that any employer might have to make. As a result, the first aspect of the pragmatic and functional approach was not met. Since the case was based on jurisdiction, there was no determination on the merits so there is no way to determine whether any final decision might have an impact on security itself.  This would be a matter for the Speaker to argue at any future hearing on remedy, assuming the dismissal was not warranted.  Therefore, there was no basis on which to consider the second aspect of the approach.


In many ways the decision in Chagnon is consistent with, and a clarification of, Vaid.  It reconciles and refines the earlier decision by recognizing that the usual concerns that animate labour law also occur within the legislative workplace. These include the fact that employees may carry out a multitude of functions, and that there is a distinction between employment decisions and operational ones.   The court however also recognizes that the operational decisions of the legislature are of a different order and where the operational decision is one that falls within privilege, the courts and adjudicators cannot directly or indirectly interfere with the exercise of those decisions.


The approach of the court may be pragmatic and sensible based on the clear-cut distinction in this case between an employment and an operational decision  However, as is the case with other employers, including the government, cases will arise that have both operational and employment dimensions.  These could include contracting out, levels of staffing, shift schedules, equipment, and even possible discipline related to the carrying out of operations.  In the parliamentary context these may present a unique problem since the operational decision might be protected by privilege.  In such cases balance will have to tip in favour of the legislature.  As Justice Rowe states in his concurring reasons “The legislature is not like a department or a regulatory agency; it is the central pillar of representative democracy. Profound deference should be shown as to how it chooses to operate.” (para 74)


Whether this decision is a mere clarification of Vaid or whether it opens the door to courts examining the exercise of privilege by questioning the claimed purpose of the decision under review remains to be seen.


Courts, adjudicators, and those who may wish to push this decision beyond clear cases of employment decisions may need to be reminded that if the decision is one that can be based on a category of privilege, then that is the end of the matter.  The exercise of that decision-making power, and the reasons for such an exercise of the privilege are not reviewable. To protect against the possible expansion of this decision, legislatures, and those who exercise decision making powers may have to provide a clear indication of the purpose of the decision, at the time that the decision is made.  Not only is this this good management, but it may provide the necessary basis and evidence upon which to found a claim of privilege.  There are enough bases for careful and proper claims based on privilege.  And as this case demonstrates overbroad claims, and attempts to stuff matters into categories without examining the “true” underlying basis for a decision, will not only fail, but risks the courts seeking a means to address what it perceives as inequities and providing possible new avenues to infringe upon the independence of legislatures.