Author: adminSC

In a televised address on Wednesday evening, UK Prime Minister Teresa May blamed Members of Parliament for the apparent failure to obtain an agreement on withdrawal from the European Union. In the course of her address she made two remarkable statements. First, she indicated that members of Parliament, all of whom had been elected in 2017, were acting against democracy and the democratic will of the people and that she alone was acting in their interests. Secondly, in a thinly veiled attack on the Speaker of the House of Commons, she blamed her inability to move forward on “arcane procedural rows”.

 

The reference to arcane procedures is clearly directed at the decision of Speaker John Bercow who had determined that the government could not introduce, a third time, the same proposal to the House of Commons that had been rejected by the House on two previous occasions. In making his ruling the Speaker relied on 400 years of precedent. These precedents are firmly rooted in concepts of parliamentary sovereignty, responsible government, and checks on attempted abuses of authority by the Crown. Parliament is a check on government power not a checkbox for its exercise. It is not permissible for the Crown (the government) to browbeat elected representatives into submission.

 

In addition to the difficulties in moving the Brexit file forward, the Prime Minister has attempted to diminish the significance of Parliament, which is the anchor for the British Constitution. The concept of parliamentary sovereignty whereby Parliament makes the laws as well as holds the government to account is considered by many as the foundational guiding principle for the British constitution. For the Prime Minister to attack that institution as being undemocratic and unrepresentative of the people of United Kingdom is to attack the British Constitution itself.

 

The attacks by Prime Minister May on Parliament and its ability to thwart the will of the government, or at least to support the government’s agenda or position on a particular issue or policy is not unique to the United Kingdom. The government of former Canadian Prime Minister Stephen Harper was found in contempt by the House of Commons and lost a vote of confidence on that finding. In the early days of the subsequent election campaign the position of the House of Commons was dismissed by him as a mere procedural speed bump. The dismissal of elected representatives and the institutions that they are elected to as mere obstacles to government and that are only interested in procedural game-playing is to attack democracy and the people themselves. It undermines the Constitution and the confidence that the population needs to have in their representative institutions as both legislators and checks on overreaching authority of governments.

 

It may be argued that this is now somewhat less significant in Canada since individuals have the ability to curb the abuses of government by challenging government decisions in the courts on the basis that such abuses constitute an infringement of individual constitutional rights. The Canadian Charter of Rights and Freedoms, enacted in 1982, provides some judicial backstop for the protection of individual rights and freedoms as against certain acts by the government. Since then there has been a marked shift in public perception and approach to major constitutional issues from Parliament to the courts. This, along with the centralization of authority in the Prime Minister’s office and social media with its perceived democratization, has strained relationships between prime ministers and the House of Commons. It also seems to have diminished respect for the House of Commons as an institution. But at least, some will argue, the courts have been brought into the constitutional equation to fill the gap left by a perceived lessening of parliamentary accountability.

 

With Brexit, the same cannot be said the United Kingdom. It is only because of United Kingdom’s membership in the EU and the European Commission that the rights of individuals in United Kingdom are legally protected from government abuse through the Human Rights Act, 1988. Assuming that Brexit occurs, the intention or consequence will be that recourse to such rights protection may be lost or altered significantly. As a matter of constitutional law in United Kingdom will primarily revert to a constitutional system in which parliamentary sovereignty, in some shape or form, will become once again the cornerstone of the British Constitution. The same institution that the Prime Minister denigrated and attacked will become the institution responsible for the protection of rights freedoms and liberty of the people of the UK and its “arcane procedures” will be the bulwark of protection of those rights freedoms and liberty. To attack the institution and its centuries old procedures designed to protect against the abuses of authority when it will be the primary institution responsible for establishing the way forward for the protection of rights and the accountability of government as a result of Brexit espoused by the government seems somewhat perverse.

 

It is important that the UK Parliament continue to take its role seriously and to ensure that its rules, practices, and procedures are respected now. If Parliament cannot use its “arcane procedures” to protect itself and the people its Members collectively represent from the abuses of government then there is no telling how future bullying by government will be met. If Parliament fails to adhere to its own practices and procedures and allows the government to belittle and undermine its authority and sovereignty now, one must ask how it will maintain or recapture its authority once Brexit has occurred. Nothing but how the rights freedoms and liberties of the UK population will be protected, and by whom, is at stake.

An allegation of potential wrongdoing has been made against the government.  The government denies the allegation and attempts to frustrate inquiry into the allegations.  The opposition immediately demands a public inquiry.  How often have we heard such demands?  Does anyone stop to consider when and why such demands, and a resulting inquiry, are not appropriate;  when such an inquiry threatens, rather than aids, accountability?

A recent story in the Globe and Mail alleges that there may have been interference by the Prime Minister, or individuals in the Prime Minister’s Office, in the prosecution of the large Quebec engineering company SNC-Lavalin.  It is alleged that they attempted to influence the then Attorney General Jody Wilson-Raybould to direct the Public Prosecutor’s Office to use a recently enacted diversion program to allow SNC-Lavalin to avoid criminal prosecution.  Whether or not such interference took place, no such direction was issued.  Both the Clerk of the Privy Council and the former Attorney have testified before the House of Commons Standing Committee on Justice.   The Prime Minister and the former Attorney General take different positions on whether the interactions between the various public officials and the then Attorney General were “inappropriate”. The allegations, if true, and considered inappropriate, could have serious political consequences for those who exerted the influence.

As one would expect, the Opposition, fulfilling its role, has sought a full examination of the allegations.  In addition to the avenue of Question Period, they have brought a complaint to the Ethics Commissioner (which has been accepted for investigation) and have convinced the Standing Committee on Justice of the House of Commons to review the matter.  In order to allow the former Attorney General to testify the government has substantially waived both solicitor-client privilege and cabinet confidence restrictions.  However, the Committee, a majority of whom are government members, has not accepted the entire list of witnesses proposed by the opposition members, nor are they prepared to ask the government to extend the waivers to cover the period after the former Attorney General was moved to a different cabinet position and her resignation from cabinet.  Frustrated by the decisions of the Committee, at least one party in the opposition is seeking a public inquiry.  There is also a movement by opposition party Senators for a Senate committee to investigate.

The demands for alternate investigations, particularly the demand for a public inquiry is not appropriate and would distort the constitutional accountability framework for addressing alleged political misconduct.  The Supreme Court of Canada in Vaid v Canada (House of Commons) 2005 SCC 30 undergirded the centuries old democratic principles of responsible government by recognizing the constitutional functions of Parliament (particularly the House of Commons) as “legislating and deliberating, including holding the government to account.”   For Members of Parliament to immediately jump to a position that a public inquiry is the only way to “get to the bottom” of an issue of political accountability and alleged misbehaviour by a Prime Minister or those acting on his behalf is to suggest that Parliament abdicate its constitutional functions.

Despite the attempted comparison with the Sponsorship Inquiry (Gomery), this situation is in no way equivalent.  In that instance, the matter involved not only the examination of a government program, from a government perspective, but alleged political party connections and business dealings, as well as witnesses from outside the government.  In the present case, all of those involved are inside the government, or under the direction of, or accountable to, a Minister (including the Prime Minister) and through a Minister to the House of Commons.  This is a clear and contained question of ministerial and prime ministerial accountability for decisions that they or those responsible to them made. The decision in question was within the mandate of the Minister of Justice, and Attorney-General, pursuant to at least two statutes—the Department of Justice Act and the Criminal Code.  The situation further involves alleged pressure by cabinet colleagues, including the Prime Minister, on the person responsible for making those decisions.  This is the stuff of Parliament, not an administrative decision maker, which a Commissioner under the Inquiries Act is, or the courts.

When considering a public inquiry, one must also be aware that there are huge constraints and problems that come with the establishment of a public inquiry, particularly for addressing accountability.  First is the fact that an inquiry is established by the government.  The Governor in Council establishes the inquiry and sets its mandate.  Indeed, the function of an inquiry is to provide a report with findings to the Governor-in-Council (i.e., the very cabinet ministers whose actions are under examination). Second, there is considerable cost and delay in the establishment of an inquiry since not only must the mandate be established, a commissioner must be found and the entire supporting administrative apparatus put in place and financed.   The process itself will often take significant time to set up and where interests of individuals may be at stake, everyone “lawyers up”.   From that point forward the entire process becomes legal in nature, involving stricter rules of evidence, and relevance.  Document production, standing determinations and witness lists can all take a long time to complete.  The proceedings will become quite complex if there is going to be any finding of wrongdoing or responsibility.  An inquiry cannot establish, nor suggest, criminal culpability (neither can a parliamentary committee). As regards privileges, in addition to solicitor client privilege and cabinet confidentiality, there is likely to be added the issue of parliamentary privilege since a Member of Parliament, including a Minister, can assert the privilege of not being required to answer a summons for forty days before and after a session of Parliament.  Although this can be waived, it must be done by the entire House.   And the entire process is subject to judicial review.  Finally, from an accountability perspective, a parliamentary inquiry keeps the issue alive and in parliament on a daily basis.  The government cannot hide behind the time-honoured practice of kicking the can down the road and over the fence to a public inquiry then argue that they cannot comment since doing so would interfere with an external process.

“But”, those who insist on a public inquiry cry, “it is not possible for a parliamentary committee to get to the bottom of these issues.”  This is not true.  They cite as “facts” that a parliamentary committee cannot delve into these matters because of the composition of the committee (government controlled by numbers), the committee processes (short rounds of questioning and partisan posturing), and the apparent lack of powers and resources (no way to compel answers or make decisions stick, and little administrative support).  However, none of these constraints are imposed or fixed by any external legal or constitutional imperative.  They are all concerns that arise within Parliament and can be remedied by Parliament.  Parliament has all the tools and powers it needs to address its own concerns.   Parliament has full authority over its own constitution, including its committees.  It can establish whatever committee it chooses. It can mandate the committee to inquire into whatever Parliament wants with respect to the government that is accountable to it, or it can allow the committee to establish its own agenda.  It can set the committee’s composition which does not have to be based on proportions of seats in the House, nor chaired by a government member (see for example the Public Accounts Committee).  Each committee can set its own process for questioning and tailor that process to the matter at hand.  It may be that chopped-up rounds of questioning are not appropriate.  The House of Commons has its own lawyers and clerks to assist it in putting its proceeding together and preparing requests for witnesses and documents.  A committee could engage counsel to assist it in preparing organizing and preparing questions.   Questions are not limited by legal constraints and rules of evidence and can stray into tangential political considerations.  Committees have full powers to send for people and papers, and if necessary, can have the papers subpoenaed, or warrants issued for a witness’ attendance (for example, when examining Airbus pay-back scheme, a warrant was issued to have an incarcerated witness, Mr. Schrieber, brought before a Committee).  It can compel any documents within the government even in the face of claimed statutory protections (for example the House order that government documents relating to Afghanistan detainees be produced over the objections of the government that they were protected from protection because of a national security exemption found in statute).  It can compel otherwise privileged information, albeit while courting considerable pushback (see recent UK Parliament decisions to compel Attorney General’s advice to UK Cabinet concerning Brexit).  It can compel attendance of internal government witnesses by holding Ministers in whose department they work accountable for non-attendance.  They can protect witnesses by parliamentary privilege, again holding ministers accountable for any reprisals.  Most importantly, they can quickly establish a process and have public hearings within days using existing tools, resources and powers.  Finally, their proceedings or findings are not reviewable in the courts.

The issues, concerns and questions raised about committees are internal to Parliament and can be fixed by Parliament if it so decides.  The way to address these concerns is, I suggest, to consider such “reforms” to allow the House and its committees to perform their role in holding the government to account, rather than abdicating these functions to others.  There will always be a tension between the government, that enjoys the confidence of the House, often with a majority of seats, and the opposition that generally exercises the lion’s share of the responsibility to hold the government to account.  And the middle of a “crisis” or parliamentary proceeding may not provide the best timing to introduce changes.  But when the dust settles, it may be time to consider the best way to approach how any government can better be held accountable to the House.   If everyone stops for a moment and considers that those in government will likely find themselves in opposition some day and vice versa, it is in everyone’s interest to put a better framework in place to allow for Parliament to carry out this role.

When doing so, the House may consider the fact that the holding of government to account for its actions or inactions, is different from legislating and holding the government to account for its legislative agenda.  There is some logic to the way committees are structured and function at present in light of the perceived need for efficiency and expediency of the government fulfilling its mandate though legislation.  Many of the rules of the House and its committees were put in place to assist in the legislating process and it can be argued it is the government’s prerogative to use its majority to fulfill its legislative agenda.  The same cannot, and should not, be said for the processes required to hold the government accountable.  This is already, to an extent, recognized by those committees that have an oversight role— the Standing Committees on Public Accounts, on Access to Information, Privacy and Ethics, and on Government Operations and Estimates. In those Committees, for example, the Chair of the Committee is a member of the opposition.  Perhaps a change to the Standing Orders should at least provide that when dealing with non-legislation matters and the conduct of a Minister, the Chair should be a member of the opposition.  Consideration could be given to also ensuring that there is an equality of seats on the committee between the opposition and the government (plus the chair).   In addition, the processes within the committee could be quite different so that continuity of questioning is not lost.  Although modest, these changes might at least be a start.

It is worth noting that the Committee and the opposition members have already been able to push the agenda and obtain considerable progress in a public way on this file despite the perceived constraints.  Within a couple of weeks, the committee has established public hearings, heard testimony from the Clerk of the Privy Council, pressured the government to substantially waive both solicitor-client privilege and cabinet confidence (an historic concession) and established significant concern within the body politic over the propriety of the actions of a Prime Minister, senior public servants and the former Attorney General.   Although some might suggest that it is, or would have been, better for someone else to inquire and decide, I respectfully disagree.  This is a matter of appropriateness and political decision making and pressure.   It is up to Parliament, and ultimately the public through the election process to determine whether lines have been crossed to the point that a government should be replaced.  In our system of government this is how it is supposed to work.

All of this is not to suggest that the question of potential interference in prosecutorial discretion is not serious or important.  There are many reasons for the principle against political interference in such decisions.   In addition to the political backstop outlined above there are cases where the courts have stayed charges in the underlying case, and where there has been consideration of criminal charges, in the right circumstances, of obstructing justice and breach of trust.  But these are matters for the police and the courts.  As for the political issues, these are a matter for parliamentary and political oversight, conclusions and consequences.  It is the responsibility of parliamentarians through their processes, and the public through elections, to judge and decide the fate of those involved.

The Canadian Federal Court of Appeal, in Board of Internal Economy of the House of Commons v Boulerice et al. 2019 FCA 33 has recognized, as a matter of parliamentary privilege, the right and ability of the Board of Internal Economy of the House of Commons to establish the regime of allowances and resources for Members of Parliament, to determine whether the use of such resources was proper, and to demand repayment for misspending.  As a result, the Federal Court, or any other court, lacks jurisdiction to judicially review decisions of the Board.

In 2014, in a series of decisions, the Board of Internal Economy of the House of Commons (“the Board”) found that certain Members had improperly used their allowances for mailing political rather than parliamentary material, renting space and employing staff for political purposes, and improperly claiming a per diem allowance.  The Board also decided that the misspent funds were to be reimbursed.  The Members sought to judicially review the decisions in the Federal Court claiming they were denied natural justice and that the decisions were not reasonable in that they were politically motivated.  The House of Commons responded with a motion to dismiss the applications on the basis that the decisions of the Board were proceedings in parliament and were a matter of internal affairs protected by parliamentary privilege.  As a result, the courts lacked jurisdiction to judicially review the decisions of the Board.

At first instance, the Federal Court dismissed the motion and found that the Board was like any other Board and its decisions were subject to judicial review (2017 FC 942).  The Federal Court of Appeal, unanimously disagreed and concluded that the decisions of the Board are protected by parliamentary privilege and that the courts do not have jurisdiction to review decisions of Board relating to Members and how they use the allowances provided to them to carry out their parliamentary functions.

As a matter of constitutional law, parliamentary privileges are constitutional in nature and protect the independence of the House of Commons, the Senate, and Legislative Assemblies to carry out their parliamentary functions without interference by the Crown or the courts.   In other words, if a matter is covered by parliamentary privilege it is solely for the House itself to fully determine the matter and any decision made in the exercise of the privilege is not reviewable by the courts.   In the 2005 Supreme Court of Canada decision in Vaid (2005 SCC 30) the Court determined that courts could determine the existence and extent of any claimed parliamentary privilege but not review the exercise of it.  As a result, once it is established that a claimed privilege exists and covers the subject matter at issue, that is the end of the courts’ jurisdiction.

In the present case, the House of Commons asserted three privileges: the proceedings of the Board were a proceeding in Parliament and pursuant to Article 9 of the Bill of Rights, 1689 they could not be questioned or impeached in a court; the determination of allowances and resources available to Members to carry out their parliamentary functions was a matter of internal affairs and directly related to the carrying out of the constitutional functions of the House; and, the House has the exclusive authority to discipline its Members.  The Federal Court of Appeal agreed on all three bases.

The essence of the lower level court’s decision was that the Board’s proceedings were not proceedings in Parliament, and that privilege was effectively restricted to protecting speech in the House and its committees.  The Federal Court of Appeal found this definition far too restrictive.  The Federal Court had not only erred on the question of the extent of proceedings. It had also failed to appreciate the independence of Parliament from the courts and what the implications of that independence were.  The Federal Court of Appeal then proceeded to analyse the the three claimed privileges.

The Court of Appeal reaches its conclusion that proceedings of the Board should be considered proceedings in Parliament on three inter-related premises.  At its simplest the court states “In many respects, the Board is an extension of the House.  It performs functions which would otherwise be performed by the House itself.  The actions taken when acting in that capacity are in a very real sense taken by the House itself.  The decisions in issue, insofar as they delineate the means and resources which must be made available to Parliamentarians in order to allow them to perform their core parliamentary functions, can properly be viewed as proceedings in Parliament.”[Para 117]

The second line of analysis is somewhat similar.  The court finds that the matters considered by the Board are so intrinsically related to proceedings in the House that they enjoy the same protection.  They note that Article 9 of the Bill of rights 1689 “encompasses the right to legislate, deliberate and generally hold the government to account …[and}..[t]he category can extend to matters which take place outside the House if they are ‘so closely and directly connected with proceedings in Parliament that intervention by the courts would be inconsistent with Parliament’s sovereignty as a legislative and deliberative assembly’” [Para 104]   For the court the connection between the work of the Board relating to allowances and resources for Members to carry out their parliamentary functions, and those functions was “obvious”, and pre-dated confederation [Para 105]. To state the “obvious” the court finds:

[H]ow could Members of Parliament vote responsibly on proposed legislation or ask relevant questions in holding the government accountable without having the staff and the resources allowing them to be properly informed or represent their constituents in the House without having access to the means by which they can communicate and report? In short, proceedings in Parliament cannot take place without Parliamentarians having the means by which they can discharge their parliamentary functions.

I do not believe that one needs to go any further to show that when deciding matters of the type in issue here, proceedings before the Board are so directly and closely connected to proceedings in Parliament as to warrant being treated the same way. [Paras 110-111]

Finally, the court notes the recent amendment to the Parliament of Canada Act that recognizes proceedings of the Board are proceedings in Parliament and concludes that, at least insofar as they relate to Parliamentarians, this is a correct statement of the law.

On the question of whether the ability to establish and determine the appropriateness of allowance falls within the privilege over internal affairs the court notes that

We are dealing with the right of the House of oversee rules governing the use of public funds made available to its Members in order to allow them to discharge their parliamentary functions, and to impose compliance. These activities involve Parliamentarians acting as Parliamentarians concerning parliamentary functions and obligations. [Para 75]

Following earlier jurisprudence in Villenueve v Northwest Territories  2008 NWTSC 41 and Filion c Chagnon 2016 QCCS 6146 dealing with internal management of parliamentary resources, the Federal Court of Appeal concludes that:

The unanimous case law on point and this historical acquiescence lead to the conclusion that the privilege claimed here– i.e., the House’s exclusive right to oversee and debate matters pursuant to internal rules governing the use made of funds and resources provided to Members of the House for the purposes of allowing them to perform their parliamentary functions—comes within the established category relating to internal affairs. [Para 94]

The third privilege identified, closely related to management of internal affairs, is that of “discipline” in the sense of the House of Commons’ authority to control its own Members by establishing and enforcing internal rules.  Being a Member of Parliament requires the Member to adhere to the rules and requirements of the House, including the financial rules set by the House itself.  These rules, and the enforcement of them are necessary to ensure the integrity of the House and its processes. [Para 102]

It is also worth noting the comments of the court on the question of necessity since necessity is the basis of all privileges and the primary focus of any analysis for provincial legislative assemblies which must rely on inherent privileges.  The reasoning of the court on necessity also form the overarching summary of the reasoning of the court on the relationship between the courts and legislatures.   The court writes:

It appears to me that allowing courts to oversee decisions regarding the allocation and use made of parliamentary resources in the context of judicial reviews would seriously challenge the dignity and efficiency of the House.

First, looking at the matter from the angle of discipline, we need only refer to the opinion of McLachlin J. in Harvey according to which the dignity and efficiency of the House would be imperiled if courts were allowed to oversee the limits and qualifications which Parliamentarians impose on themselves in the exercise of parliamentary functions.

Considering the matter from the perspective of internal affairs, it belongs to Parliamentarians to decide for themselves what they need and how to allocate funds and resources in order to carry out their parliamentary functions. In my view, allowing courts to have the last word over the handling of these affairs would intrude on the autonomy of the House and demean its constitutional role.

…

[A]llowing the courts to opine on what Parliamentarians need in order to perform their core parliamentary functions would also impact on the dignity and efficiency of the House by demeaning the role of Parliamentarians. [Para 123 to 126]

This decision of the Federal Court of Appeal once again highlights two things.  Legislatures and their Members are independent of the courts and that Members are responsible for their own internal governance.  But being responsible also means that one must act responsibly.  There is no judicial backstop, as it should be, so it is incumbent for Members to take matters of internal affairs seriously and to treat each other fairly.  There is however a political backstop, and political judgments by the electorate can be considerably more severe than those of the courts.

As one who follows the work of Parliament and Legislatures, I read with interest the Report of Speaker Plecas to the Legislative Assembly Management Committee Concerning Allegations of Misconduct by Senior Officials of the British Columbia Legislative Assembly.  The Report outlines numerous allegations of misspending of funds by the Clerk and Sergeant-at-Arms relating to travel, benefits and personal expenses made using funds of the Legislative Assembly.   On reading the report one can easily focus on the particulars and whether the expenditures were appropriate, and if inappropriate what should happen to the individuals in question.  It would be easy to end there.  But what struck me was the question of how the Legislative Assembly got to this point. It finally struck me at page 64 of the 73 page report –“Moreover, it appears historically to have been the case that LAMC [Legislative Management Committee] rarely met; as early as then-Auditor General John Doyle’s report in 2012, strengthening LAMC oversight was identified as an area of urgent requirement in the interests of good governance.”

 

This single line is quite revealing.  It would appear that the Legislative Assembly let slide its responsibility to oversee the management of the administration of the Assembly.  There is little indication that the Assembly had established and maintained the necessary oversight required of the Administration.  This lead those who were at the apex of the management structure to be able to operate without accountability.  Such a failure by the Assembly allowed those responsible for the administration to either put in place deficient policies, policies that benefited certain higher-level officials or to deviate from the policies without repercussion since they were not held accountable for their personal failure to adhere to the policies.

 

It is not difficult to understand how this could have occurred.  Members of the Assembly are focused on other matters.  They see themselves as having been elected to legislate, govern or hold the government to account, and represent their constituents’ interests.  They have little or no understanding of, nor have they likely given any thought to, their collective responsibility for oversight of the management of the Administration that supports them in their legislative functions.  They trust others to take care of the management of the “behind the scenes” support that the Administration plays.  And, if the situation has gone on for a number of years, because of changed membership and inertia, it just becomes the way things are and “out of sight, out of mind”.  Clearly, it is assumed, the issue is someone else’s business.

 

But it is not.

 

One of the hallmarks of the Canadian constitutional system of government is that the legislature is independent of the Crown (government) and the courts.  For the purpose of administration, the independence from the Crown is most important.  Legislative Assemblies and their Administrations are not government departments.  Administration employees are not government employees, nor do government policies and accountability frameworks apply.  The administration is not, and cannot be, accountable or answerable to a Minister of the Crown, since the administration must be absolutely loyal to the Legislature which has a constitutional responsibility to hold the government to account.  Nor is the government responsible for the failure or shortcomings of the Legislature’s Administration.  Legislative Assemblies must establish their own Administration, including an administrative framework, accountability framework, along with their own financial, information, security and human resources policies.   They may incorporate some government policies, but in doing so the policy becomes a policy of the legislature, not the legislature becoming part of the government. In doing so, the Assembly will recognize that the role of the legislature is different from that of the government and business, and that there may be unique needs and some unique policies.  But this is not an excuse for lax accountability.   In the end, the Legislative Assembly is responsible and accountable for the administration.  Members cannot distance themselves from the failures of a system they are responsible for.

 

The carrying out of the responsibility for its administration by the Legislative Assembly takes some care and attention.  It requires a fair degree of trust accompanied by appropriate accountability.  A Legislative Assembly is composed of its members and can only act collectively.  Its Members are elected, and each election results in a new and distinct Assembly.   As a body composed of a large number of members and which changes each election, there is a need for a stable, continuing supporting structure.  This is usually found in the permanent officers and the Administration that supports the Assembly.  In order to function and provide for the necessary continuity, the legislature has two options.  It can rely on the Speaker as a servant of the Legislative Assembly to single-handedly carry out management responsibility in addition to all of his or her constitutional functions, or it can assume its collective responsibility by establishing a committee to act on its behalf.  In Canada all jurisdictions, usually by statute, or through its Standing Orders, Legislative assemblies create an administrative framework with a body (often styled as a Committee or Board) composed of Members of the Assembly, to be responsible for the administration.  This body will have the authority of the Assembly to put in place the necessary internal governance and accountability structures for the Administration to function and to be accountable to the Assembly as a whole (again usually through this body).  In most jurisdictions the Committee is composed of members representing all parties and is chaired by the Speaker.  The Committee thereby manifests the authority and responsibility of the entire Assembly.  It also provides for continuity if the government changes since the members of the Committee represent their caucus regardless of whether formerly in the government or the opposition.  It can also provide a degree of non-partisanship in its operations.

 

Because of the complexity of the Administration, and to avoid the Committee becoming entangled in the minutiae of the day to day decision making, Committees will normally authorize the Clerk, as chief administrator, or a Management group with the Clerk as the Chair, to carry out the necessary day-to-day operations of the Administration, including the establishment of the necessary financial, contracting, expenses and procurement policies.  In most cases the Committee will either approve the policies, or at least the policy principles to establish appropriate good governance practices.  They will also retain the ability to give direction or modify the policies as they deem appropriate.  They often retain the sole discretion to allow for exceptions to policies, particularly when the exception involves members or those who report to it.  The policy framework will allow the Committee the standards against which to hold those responsible for implementing the policies accountable.  In addition, the Committee should expect to have a meaningful reporting relationship with the Clerk (or Chief Administrative Officer) on a regular basis.  Finally, the legislation, or the Committee, will need to establish an independent audit process that reports to the Committee, and through the Committee the House.   Timely reporting and auditing insure probity and accountability.

 

The failure of a Legislature to establish and maintain the operations of such a Committee results in the Assembly failing to carry out its “management” function.  It does not result in the ability to claim that they are not responsible since they did nothing.  The responsibility is inherent in the constitution.  What they may be able to take some solace in is the fact that all members, regardless of party or status are equally responsible.  Both the responsibility and any fault is collective.

 

The recent events in British Columbia demonstrate the potential consequences of neglect.  At the same time, it allows the British Columbia Legislative Assembly the ability to conduct a review and to put in place the necessary governance framework that will allow it to fulfill its responsibilities.  It should also act as a wake-up call to all legislative assemblies, that now have a reason to review, reflect and renew their own relationships to their Administrations.

 

Recent and on-going events in the United Kingdom provide insights into the effects of true fixed election legislation on the Westminster system of government.  Those familiar with the Westminster systems of government must be looking on in wonder as the government of Teresa May suffers defeat after defeat as it attempts to steer Brexit legislation and agreements (the raison d’être of Prime Minister May’s government) through the UK Parliament.  First the House of Commons denied the government the ability to negotiate and sign an agreement with the EU without first presenting any agreement to the House for its approval.  More recently, the House voted to receive the full legal opinion of the Attorney General, over the objections of the government.  When the government continued to withhold the opinion, the House of Commons found various senior Minister in contempt of Parliament.  On the same day the government lost two further motions on how the future Brexit process will be subject to greater Parliamentary scrutiny and oversight.  On December 10, 2018 the Prime Minister delayed a planned vote on the Brexit Agreement, with the Prime Minster admitting that the government would lose the vote. And on January 9 a majority on the House of Commons, expecting the vote on the Brexit agreement to be lost voted to allow the government only three days following a negative vote to return to the House with a plan B  By any traditional view of this series of events, it is clear that the government does not enjoy the confidence of the House of Commons.  Yet the government, the House and the Parliament continue, as a result of the fixed date election law in place in the UK.

 

This post examines how the fixed-date election law in the UK has affected how the House of Commons operates and behaves and suggests that in some ways the law provides a good counter-balance to the evolved state of centralized authority in party leader’s offices, particularly the Prime Ministers’ office, and excessive party discipline.   The fixed date election law has enhanced the independence of the House of Commons and Members, both within the House, and within caucus. At the same time, the rule can make it difficult for the government to govern and constrict the use of the safety valve of elections to resolve political impasses.

 

The United Kingdom has more stringent fixed date election laws than Canada.  Whereas Canadian fixed date election laws retain the prerogative of the Governor-General or Lieutenant-Governors to dissolve Parliament, on the advice of the Prime Minister or Premier, the UK legislation constrains this prerogative so that Parliament itself must take positive action to trigger an early election.  As was demonstrated in 2008, Canadian Prime Ministers can still consider any matter one of confidence and if defeated in the House, request that Governor-General dissolve Parliament triggering a general election.  By contrast the UK fixed date election law requires either a specifically worded non-confidence vote, followed by a 14-day period for the House of Commons to determine whether another government is possible; or, a two-thirds vote of the House of Commons to have an early election (as was the case in 2017).  Absent one of these two specific motions and votes, the UK Parliament will continue, regardless of the number of defeats a government may suffer in the House of Commons.

 

The result of the UK legislation has been to strengthen the role of Parliament in determining its continued existence.  No longer does the government control the timing of elections, nor can it dangle the non-confidence sword of Damocles over Members to force support at the risk of triggering an election.

 

The most evident consequence is that the government will lose more votes in the House of Commons, both on matters of procedure and on matters of substance.  In the case of Brexit, which is the signature initiative of the Conservative government, the House of Commons has dictated the process for endorsing any agreement with the EU, and is, at the writing of this post, likely to defeat the currently proposed agreement.  There have also been several significant defeats on the legislation intended to implement Brexit, resulting in the government making significant amendments to legislation.  Faced with possible defeats and amendments to legislation, without the ability to threaten dissolution and election the government is forced to work with the opposition to implement the government’s agenda.  This is even the case when the opposition parties may be down in the polls and the government would gain in the election.  The government is required to work with the Parliament that resulted from the last election, not orchestrating the next one.   Poison Pill provisions aimed at forcing the opposition to choose between supporting such provisions or defeating the government are no longer an available option , as the government only risks defeat of the legislation, not the government.  In minority situations the opposition is strengthened, and the government is forced to co-operate with the opposition for the entire Parliament, or be defeated at a time of choosing of the opposition (presumably when the opposition parties believe they have greater electoral support).

 

There is also more room under a fixed date regime for Members that support the government to voice their concerns openly and from time to time vote against the government without the risk of triggering an election.   While the Prime Minister may still wield considerable power over some Members of the government caucus in terms of potential cabinet and parliamentary jobs, and concerning their candidacy at elections, these tools are of little or no effect against Members who will not be seeking re-election, or who represent safe seats with strong constituency associations and ties.

 

The result is that the government must be more willing to work more closely with Parliament and Members of all parties, in order to achieve its legislative agenda.  And, as Brexit demonstrates this is particularly the case when the issues to be resolved are of major public concern and Members of each caucus are divided on the issue.  This is evident in the Brexit scenario where remainers and leavers populate the benches on both sides of the House.  In Canada these issues are sometimes resolved by allowing free votes (as was the case for same sex marriage) but more often are resolved by whipped votes, with the confidence card fixed up the Whip’s sleeve.   Without the constant threat of a defeat constituting a real or deemed loss of confidence resulting in an election, all issues are treated as free-votes.

 

This does not mean that the House of Commons will dissolve into a free for all.   Since caucuses are composed of Members elected from the same political party who were elected on the same platform reflecting common objectives, they are likely to vote on party lines on the majority of issues.  In addition, constant defeat of the government, or defeat on a major issue, will make the government look weak and ineffective, thus diminishing chances of future electoral success.  Members will still want to demonstrate that their “party” is strong and effective.

 

However, what it does do is empower Parliament.  It requires the government to be more cognizant of risk that its legislation may be amended or defeated.  Members of all parties, including Members of the government caucus, may be encouraged to work to better legislation by proposing and considering amendments without the risk of the result being seen as a matter of confidence.

 

On the positive side, Parliament is strengthened and remains at the centre of the British constitution.  Governments no longer can dictate legislative results using the threat of elections.  On the other hand, governments are deprived of the traditional means to address parliamentary impasses.  The ability to seek a mandate by allowing the electorate to be involved in determining the issue has been severely limited.  Political impasse is left to fester within Parliament so long as the opposition sees the government, and not itself or Parliament generally, as the target of public discontent.

 

The movement to limit the power of the Prime Minister to request the dissolution of Parliament based on the politically opportune time for the government, and the shifting of power and the timing of “early” elections to the Parliament elected in the previous election is a welcome change, as is the increased ability of Parliament to  amend and defeat government proposed legislation without the fear of such defeats being seen as a trigger or excuse for elections.  But a law that is so strict as to result in a stagnant, ineffective government and Parliament is not the answer.  A workable middle ground that allows for the resolution of a true parliamentary and political impasse, such as that evidenced by the Brexit “debate”, should be developed.

“…Proceedings in Parlyament ought not to be impeached or questioned in any Court…”

Article 9, Bill of Rights, 1689

 

Senator Duffy was found by the Senate to have made inappropriate expenditures.  These included expenses for a secondary residence in Ottawa since he claimed his cottage-like property in Prince Edward Island as his primary residence.  As a result of the finding of the finding of inappropriate expenditures and the charges, the Senate sought repayment of the expenses and suspended the Senator.   The Senate also referred the matter to the police and Crown, who laid various fraud and breach of trust charges against the Senator.  The charges were eventually dismissed.  In the reasons for dismissing the charges the trial judge indicated that the Senator ”committed no prohibited act, violated no Senate rules and did not in all circumstances commit the actus reus of fraud.”  Senator Duffy was then returned to his seat in the Senate.

 

Senator Duffy sought reimbursement of the amount of the claim, his allowance, pension accrual and his legal fees.  The Senate did not respond to these requests.  He then brought a civil action against the Senate seeking damages, claiming that the committee report and the resulting Senate decision to suspend him were “politically motivated, unconstitutional, procedurally unfair and contrary to his rights under the Canadian Charter of Rights and Freedoms.”   The Senate responded by bringing a motion to dismiss the claim against it , relying on four recognized parliamentary privileges: administration of the Senate’s internal affairs; discipline of its own members; control of its own proceedings; and freedom of speech within parliament.

 

In her decision in Duffy v Senate of Canada and the Attorney General of Canada 2018 ONSC 7523. Justice Gomery accepted that the case against the Senate had to be dismissed on the bases of all four claimed privileges.  The judge first provides an overview of the bases for privileges generally, and the manner in which the courts are to approach claimed privileges. She accepts and applies the Supreme Court’s analysis in Vaid v House of Commons, 2005 SCC 30 in which the courts can determine the existence, scope and extent of a parliamentary privilege, but not its exercise. In reviewing the existing jurisprudence, she also recognizes that at the federal level privileges are derived from two constitutional sources, the preamble of the Constitution Act 1867, and for which necessity must be demonstrated, and section 18 of that Act.  Privileges derived from the Preamble require a demonstration that they are necessary for the proper functioning of the legislature.  Privileges derived from section 18 and the legislation passed under it, such as in section 4 of the Parliament of Canada Act, will be recognized if proven to be in existence for the UK House of Commons at the time of confederation.

 

She then sets out how each of the four claimed privileges apply to the circumstances.  Following the precedent of Harvey v NB [1996] 2 SCR 922, and earlier precedents she recognizes the Senate’s privilege to discipline its own Members, and accepts that the suspension was an exercise of this privilege.

 

Differing from the recent Federal Court decision Boulerice v Canada 2017 FC 942 (appeal to Federal Court of Appeal, A-332-17, heard November 14, 2018) Justice Gomery concludes that the role of the Senate Committee on Internal Affairs, Budgets and Administration is not merely administrative; rather, “its decisions may be critical to a senator’s ability to perform their parliamentary functions adequately” (para 83).  Decisions of the CIBA to grant or withhold expenses therefore fall within the privilege of the Senate to manage its internal affairs.

 

The third privilege recognized is the privilege of a legislature to control its own proceedings, and the fact that “the existence of this privilege generally prevents courts from enforcing procedural constraints on the parliamentary process (Mikisew Cree First Nation v Canada 2018 SCC 40)”.  As a result the court would not able to grant relief for failure of process including any failure to act fairly or in accordance with the Charter.

 

Finally the court examines the privilege of freedom of speech, both for senators and witnesses during proceedings.  Since the words spoken during proceedings are protected by this privilege the judge strikes all paragraphs in the pleadings that make references to anything said in any proceeding of the Senate or its CIBA.

 

The judge concludes as follows:

I conclude that Senator Duffy’s legal claim against the Senate is based on actions and speech that fall squarely within the scope of established parliamentary privilege.  The decision to suspend Senator Duffy is subject to the Senate’s privilege to discipline its members.  The investigation of his living allowance and claims for reimbursement are protected by the Senate’s privilege to manage its internal affairs.  The CIBA investigation and the decision to suspend Senator Duffy fall within the Senate’s privilege over its proceedings.  As a result, this court has no role in judging their lawfulness or fairness. (para 119)

 

The allegations in Senator Duffy’s statement of claim about statements and reports  in the Senate are furthermore subject to the Senate’s privilege over freedom of speech…As a result, all such allegations must be struck….There would be no point in granting Senator Duffy leave to amend his statement of claim, because there would be no way for him to assert his claim absent reference to privileged speech.

 

As a judgment on the application of specific privileges, that of Justice Gomery follows the analytical framework set by the Supreme Court.  However, this analysis was not necessary and, as a result, the judge may have complicated the relationship between the courts and legislatures.  Her judgment may lead some to believe that where a particular privilege cannot be fully proved to apply, or if there is no identifiable privilege engaged, the courts could review the decisions of a legislature   This is not the case.  Under no circumstances can a court review proceedings in Parliament or a legislature, regardless of whether one can prove that a particular privilege has been infringed.

 

The questions raised in this case are not merely questions of privilege with the analysis of necessity, scope and exercise that such questions require.  These privileges rest on a more fundamental principle of constitutional architecture, the separation of powers and limits on the jurisdiction of the courts set out in Article 9 of the Bill of Rights, 1689.  Although Justice Gomery cites this provision as part of the history of privilege, she fails to fully grasp its significance as a constitutional constraint on the jurisdiction of the courts.  She only sees the provision as a “immunizing certain parliamentary activities from consideration by the courts” (para 24).   The provision was intended to do more than this.  It precludes any proceeding in Parliament from being questioned or impeached in any court.”  This is a complete and absolute constitutional limit on the jurisdiction of the courts.

 

A finding that what was sought to be questioned or impeached buy Senator Duffy was a proceeding should have been the beginning and the end of the inquiry.  There is no question of necessity nor of extent or scope that needs to be decided other than whether the matter under consideration was part of a proceeding.  Senator Duffy was suspended by a decision of the Senate taken as part of its proceedings.  This decision is not reviewable in the courts, whether or not there is a particular identifiable “privilege” to discipline by way of suspension or otherwise.  Similarly, the CIBA, a committee of the Senate, made decisions relating to expenditures during committee meetings that are proceedings in Parliament.  This too should be the end of the inquiry.  The nature of what was discussed is irrelevant when examined from the perspective of Article 9.

 

Justice Gomery, by deciding the case on a privilege by privilege basis, embarked on a somewhat tortuous path of defining the privilege trees in the independence forest, rather than recognizing the fact that there was no ability or need to enter the forest at all.

 

Article 9 is not a statement of privilege. It is a statement of independence.  Protection from judicial scrutiny for the Senate’s proceedings, particularly as they relate to itself and its Members (who are the constituent parts of the Senate as a whole) is the essence of that independence.  Regardless of the process or outcome of decisions of the Senate in its proceedings Article 9 precludes any review, questioning or impeaching in any court on any basis.  And that should have been the beginning and end of this decision. At the very least, it would have put the analysis of the privileges considered on a firmer constitutional footing.

Like others, I have no information on why the Clerk and Sergeant-at-Arms of the British Columbia Legislature are being investigated and what possible consequences for all involved may or may not follow.  I too have been watching events unfold and following the comments made by journalists, commentators, and lawyers.  In doing so, it has become apparent that the unique nature of the legislature is not fully understood and this has lead to somewhat incorrect statements and concerns that if left unnoted can lead to further misunderstandings and could cause legal and constitutional difficulties in the event that legal action is warranted following the investigations.  This post is intended to  point out the legal and constitutional framework in which the investigation is proceeding

 

It is paramount that it is understood that the legislature is not the government.  It is independent of the government.

 

From this important constitutional foundational principle it follows that the decisions taken are those of the Legislative Assembly not the government.  The choice to investigate should not be taken by the government, nor should its advice necessarily be followed by the Assembly.   Until the police were advised and information was  provided to them that allowed them to further the investigation, the internal decisions were those of the Assembly (or Speaker acting on behalf of the Assembly).  It was not a government investigation, it is not now a government investigation, it is now a police investigation combined with an investigation internal to the legislative branch.  At no time is the investigation that of the government, nor can the government direct or influence either investigation.  To do so would be to interfere with the independence of the Assembly.  The government can no more interfere in the internal investigation of the Assembly, or the police investigation of the Assembly’s officers, than it could an investigation of those ofa company, business, or individual.

 

The second point is that the Clerk and Sergeant-at-Arms are not public servants, nor are they government employees.  Also, because of the constitutional nature of their positions, they are not employees of the Assembly in the same way that others such a s human resource officers, cleaning staff, and administrative staff are.  They are servants of the Legislative Assembly itself.  In the case of the Clerk, his responsibilities are to keep the business of the legislature flowing and to ensure the records required by the constitution are kept.  By nature of internal governance rules, established by the Members he has been given responsibility to manage, like a CEO, the financial and administrative affairs of the legislature separate from those of the government.  The Sergeant-at-Arms carries out a number of functions, including providing security and enforcing the privileges that the Assembly needs to carry out its proceedings free from physical, and more recently electronic, interference.    The constitutional functions of managing the business and security of the Assembly are undertaken at the behest of the Members of the Legislative Assembly and no-one else.   Since these functions are carried out on behalf of the Members, it was necessary that the “suspensions” of the two officers with pay pending investigation be made with the approval of the Members of the Legislative Assembly.  They either had to give their approval directly, or indirectly by directing the Speaker to take the necessary decisions on their behalf.  In either case the Members had to make a collective decision on the matter.  Either there would be a direct motion, on little information, to suspend (which they did), or they would have needed to direct the Speaker to do so.  There was no way, given the constitutional position of the Clerk and the Sergeant-at-Arms, that the suspensions could have been taken without some involvement of the Legislative Assembly as a publicly accountable body.  The process, in all cases, would necessarily be public.  The implication is also that further steps, if any, or vindication will also likely need to involve the Legislative Assembly.  Since it was a decision of the Assembly to suspend, the decision to “unsuspend”, either by disciplining or re-instating ,would need to be take by the legislature.  The only outcome that would not require the Assembly re-visiting the issue would be resignations.

 

The decision to suspend someone with pay to allow an investigation is not unusual.  This is to allow an investigation to proceed without those who are the subject of an investigation being present to influence “witnesses” or to interfere, destroy, or modify evidence.  This protects those who might provide evidence against “their superiors”, protects records, and also protects those who are the subject of the investigation from possible allegations down the road that they tampered with “witnesses” or evidence.  What will be important is that the subjects of the investigation be given a full opportunity to address the preliminary findings before any final decisions are made.

 

Investigations within a Legislative Assembly are not easy.  They must be carried out in a manner that does not interfere with the work of the Assembly or its Members. They must also be conducted in a manner that protects the privileges of Members and the Assembly and  that allows the constitutional business of the Assembly and its Members to be conducted without interference.  It will be necessary that the investigation be managed in such a way as to not interfere with privilege.  This should not be considered an obstruction of the investigation, but rather a possible limit on its means or scope until the issue of accessibility or privilege is resolved.  In the same way that investigations cannot infringe constitutionally protected Charter rights, they cannot infringe the constitutionally protected privileges of the Assembly and its Members. These two principles must be carefully balanced.

 

It is understandable that various Members are anxious because they do not have “all the facts”.  As a result a means will need to be found to either fully empower Speaker to proceed without further instructions or at least keep the leadership of the various parties (or their representatives) informed of what is occurring.  This will allow the leadership of the parties to decide whether they will advise their caucuses to continue to support the continuing investigation.  At the same time, those informed  will have the responsibility of keeping the matter from becoming public if the disclosure of the information would interfere with the investigation.    They will also need to be involved in deciding what and when information is disclosed.  Since the Legislative Assembly is independent of the government, and is composed of all Members, the investigation should proceed in a manner that involves the leadership of all the parties.  In the end it is the Assembly of all Members that will decide the future status of those being investigated (but not the issue of criminal or other charges).  A means must therefore be found to proceed “collectively” and in a manner that is responsible and not political.

 

The independence and proper functioning of the Legislature depends on it.

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.

 

J

 

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.

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.

 

Only at the municipal level can democratic rights of voters and candidates be limited by a government without protection from the courts.  Instead of exploiting a gap in the Charter that allows democracy to be undermined, Doug Ford should guarantee these rights.  If he won’t then MPPs should exercise their free vote to do so.

 

Never before has the government of Ontario asked the Legislative Assembly to use the notwithstanding provision of the Charter of Rights to exempt legislation from review for Charter compliance.  Premier Ford is now asking it to do so in circumstances that may be technically permissible but only because the election being interfered with is municipal.   If similar attempts were made to interfere with a provincial election, the Act would similarly have been declared unconstitutional by the Superior Court, but the notwithstanding provision could not be invoked.

 

On September 10, 2018, the Superior Court decided that the Better Government Act, which effectively halved the number of Toronto City Council seats in the middle of the municipal election, violated the freedom of expression rights guaranteed by subsection 2(b) the Charter.   It found that legislation that changed the rules of an election, in the middle of that election, interfered with the freedom of expression that is the cornerstone of democracy in Canada.   The court relied on several Supreme Court of Canada cases dealing with democratic rights under section 3.   In most of these cases, the violation of democratic rights was closely tied to violations of the freedom of expression.   There is no doubt that had the court been able to do so, it would have found that the democratic rights enshrined in the Charter had also been violated since democracy was at the heart of the case. However, the court could not do so because the Charter only protects democratic rights for federal and provincial elections, not municipal ones.

 

One of the foundational principles of the Constitution is democracy.  Not democracy in the narrow majority rules sense; but, in a broad exchange of ideas, and representation sense, both during and between elections.    Rights and freedoms such as the freedom of expression and association are intrinsically connected to democracy.

 

As for the connection between democracy and elections, section 3 protects the right of Canadians to run and vote at provincial and federal elections.  This right has been found to embrace all of what democracy is about.  Most important for the present debate, these democratic rights under the Charter are considered so fundamental that they are not, like most other rights, subject to reasonable limits under section 1, nor can they be overridden by section 33’s notwithstanding clause.   Democratic rights in Canada are so fundamental that they cannot be subject to limits or override by legislatures, no matter the size of majority of members or the recentness of an electoral mandate.

 

Democracy at the municipal level of no less importance.  As the expression goes, all politics is local.  The closer the level of government to the electors, the greater the need for democratic principles to apply.

 

It may be that on a narrow reading of the democratic rights provisions, the provincial legislature, at the direction of the government, can use the notwithstanding clause because municipal elections are not specifically listed.   It is disconcerting that democratically elected MPPs, who benefit from constitutionally “super protected” democratic rights are being asked to use an extra-ordinary provision of that same constitution to deny that same protection to candidates and the voters of Toronto.   MPPs when considering their free vote should think hard and long before using the notwithstanding clause in this instance.  To use the notwithstanding clause in this case is not an exercise in democracy. It clearly denies and undermines it.

 

It may be that Toronto Council needs reform.  It may be that there should be fewer wards and greater efficiency.  But to achieve this at the expense of democracy should be rejected by those who, themselves, should be the embodiment of democracy.