Court File No: 37543 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL OF QUEBEC) BETWEEN: JACQUES CHAGNON, ès qualités de président de l’Assemblée nationale du Québec APPELLANT (Respondent) 10 AND: SYNDICAT DE LA FONCTION PUBLIQUE ET PARAPUBLIQUE DU QUÉBEC (SFPQ) RESPONDENT (Appellant) AND: THE HONOURABLE SERGE JOYAL, P.C. and THE SPEAKER OF THE LEGISLATIVE ASSEMBLY OF ONTARIO INTERVENERS 20 FACTUM OF THE INTERVENER, THE HONOURABLE SERGE JOYAL, P.C. (Pursuant to Rules 37 and 42 of the Rules of the Supreme Court of Canada) THE HON. SERGE JOYAL, P.C., SENATOR CONWAY BAXTER WILSON LLP/s.r.l. 250 East Block 400-411 Roosevelt Avenue Parliament of Canada Ottawa, ON K2A 3X9 Ottawa, ON K1A 0A4 David P. Taylor Tel: 613-943-0434 Fax: 613-943-0441 Tel: 613-691-0368 Email: [email protected] Fax: 613-688-0271 Email: [email protected] Avocat à la retraite, Intervener Counsel for the Intervener, The Honourable Serge Joyal, P.C. ORIGINAL TO: SUPREME COURT OF CANADA THE REGISTRAR 301 Wellington Street Ottawa, ON K1A 0J1 COPIES TO: LANGLOIS AVOCATS, S.E.N.C.R.L. NOËL & ASSOCIÉS 13e étage, Complexe Jules-Dallaire, T3 111, rue Champlain 2820, boul. Laurier Gatineau, QC J8X 3R1 Quebec, QC G1V 0C1 François LeBel Pierre Landry Tel: 418-650-7022 Tel: 819-503-2178 Fax: 418-650-7075 Fax: 819-771-5397 Email: [email protected] Email: [email protected] Ottawa Agent for the Appellant ASSEMBLÉE NATIONALE DU QUÉBEC Édifice Pamphile-Le May 1035, rue des Parlementaires, bureau 3.54 Quebec, QC G1A 1A3 Ariane Beauregard Seigfried Peters Tel: 418-266-1101, exts. 70302 / 70290 Fax: 418-528-0993 Email: [email protected] [email protected] Counsel for the Appellant POUDRIER BRADET AVOCATS, SUPREME ADVOCACY LLP S.E.N.C. 100 - 340, rue Gilmour 100 - 70, rue Dalhousie Ottawa, ON K2P 0R3 Quebec, QC G1K 4B2 Geneviève Baillargeon-Bouchard Marie-France Major Tel: 418-780-3333 Tel.: 613-695-8855 Fax: 418-780-3334 Fax: 613-695-8580 [email protected] Email: [email protected] Counsel for the Respondent Ottawa Agent for the Respondent 2 BLAKE, CASSELS & GRAYDON LLP GOWLING WLG (CANADA) LLP Box 25 2600 - 160 Elgin Street Commerce Court West Ottawa, ON K1P 1C3 Toronto, ON M5L 1A9 Catherine Beagan Flood Jeffrey W. Beedell Emily Hazlett Tel: 613-786-0171 Christopher DiMatteo Fax: 613-788-3587 Tel: 416-863-2269 Email: [email protected] Fax: 416-863-2653 Email: [email protected] Ottawa Agent for the Intervener, Speaker of the Legislative Assembly of Counsel for the Intervener, Ontario Speaker of the Legislative Assembly of Ontario TABLE OF CONTENTS Description Page PARTS I & II – OVERVIEW AND QUESTIONS IN ISSUE 1 PARTS III – ARGUMENT 2 A. National Assembly employees have a statute-based employment 2 relationship B. The scope of parliamentary privilege in relation to the “management of 7 employees” is to be narrowly construed C. The Speaker’s authority regarding the exclusion of “strangers” cannot 9 override obligations otherwise set out in an assembly’s organizing statute PARTS IV AND V – ARGUMENT ON COSTS AND ORDER SOUGHT 10 PART VI – TABLE OF AUTHORITIES 11 PART VII – LEGISLATION 11 PART VIII — OTHER SOURCES 12 1 PARTS I & II – OVERVIEW AND QUESTIONS IN ISSUE 1. Parliamentary privilege plays a significant role in the Canadian constitutional architecture. It stands alongside other constitutional rights and principles, like judicial independence1 and responsible government,2 in ensuring that each branch of government fulfills its basic constitutional functions.3 However, this Court has been clear that parliamentary privilege is an ordinary part of Canadian law, not an exceptional field – lex parliamentaria – outside the cognizance of other actors and institutions. In keeping with this principle, this Court, in Canada (House of Commons) v. Vaid, eschewed approaches to parliamentary privilege that construe Parliament as an ‘enclave’ shielded from the ordinary laws of the land, and rejected categorical approaches for a functional one.4 2. The purposive approach to parliamentary privilege that this Court adopted in Vaid recognizes 10 that there are important limits to parliamentary privilege, and ties those limits directly to the functional role of legislative assemblies in Canadian democracy.5 3. This Court has articulated a clear division of responsibilities between the legislative and judicial branches as regards parliamentary privilege: the judiciary interprets and reviews the scope of parliamentary privilege (based on the criterion of necessity to an assembly’s legislative and deliberative functions), while the legislative branch is responsible for the exercise of recognized privileges.6 In addition, the judiciary must apply a heightened level of scrutiny to cases involving those who, much like the custodians who were dismissed in this case, are not legislators, as “a finding that a particular area of parliamentary activity is covered by privilege has very significant legal consequences for non-members who claim to be injured by parliamentary conduct”.7 This 20 heightened level of scrutiny is equally applicable to an assembly’s relations with its employees. 1 Reference re Remuneration of Judges of the Prov. Court of P.E.I.; Reference re Independence and Impartiality of Judges of the Prov. Court of P.E.I., [1997] 3 S.C.R. 3 at paras. 105-109. 2 Ontario English Catholic Teachers’ Assn. v. Ontario (Attorney General), 2001 SCC 15 at para. 65. 3 In Ontario v. Criminal Lawyers Association of Ontario, 2013 SCC 43 at paras. 27-29, a majority of this Court articulated the respective roles of the legislative, executive, and judicial branches as follows: (a) legislative branch: making policy choices, adopting laws, and holding the purse strings of government; (b) executive branch: implementing and administering the policy choices and laws made/adopted by the legislative branch; and (c) judicial branch: maintaining the rule of law and protecting the fundamental liberties and freedoms guaranteed by the Charter. 4 Canada (House of Commons) v. Vaid, 2005 SCC 30 at paras. 29(1), 29(3) and 66-70. 5 Vaid at paras. 43-46. 6 Vaid at para. 40. 7 Vaid at para. 30, see also at para. 29(12). SFPQ c. Chagnon, 2017 QCCA 271 at para. 8. 2 4. The Intervener reformulates the three questions stated by the Appellant Speaker and the Respondent Union as follows,8 to be dealt with in this order: a) Has the National Assembly defined, by statute, its relations to employees who have a close connection to its exercise of its legislative and deliberative functions? b) Do the employees at issue in this appeal perform functions integral to the National Assembly’s exercise of its legislative and deliberative functions such that their management falls within the scope of any privilege claim, as considered in Vaid? c) Is there a relationship between the privilege to exclude “strangers” from an assembly’s proceedings and the dismissal of employees who implement that privilege? 10 PART III – ARGUMENT A. National Assembly employees have a statute-based employment relationship 5. Canada’s federal and provincial legislative assemblies have defined their privileges by statute.9 In keeping with the rule of law, analyses of assertions of privilege ought to begin with these legislative provisions. Generally, statutory assertions of privilege take the form of a “general claim” of privileges, immunities, and powers, or “specific claims” dealing with particular subjects. In Quebec, the “general claim” to privilege is made by asserting, in section 42 of the Act respecting the National Assembly (“ARNA”), that “[t]he Assembly has the power to protect its proceedings against all interference”.10 Specific claims are made in sections 43-55.11 8 Appellant’s factum at pp. 6-8 [A.F.]; Respondent’s factum at pp. 8-10 [R.F.]. 9 See s. 4 of the Parliament of Canada Act, R.S.C. 1985, c. P-1, s. 4; Legislative Assembly Privilege Act, R.S.B.C. 1996, c. 259, s. 1; Legislative Assembly Act, R.S.A. 2000, c. L-9, ss. 8-15; The Legislative Assembly and Executive Council Act, 2007, S.S. 2007 c. L-11.3, ss. 23-32; The Legislative Assembly Act, C.C.S.M., c. L110, ss. 34-52; Legislative Assembly Act, R.S.O. 1990, c. L.10, ss. 35-53; Act respecting the National Assembly, R.S.Q., c. A-23.1, ss. 42-56; Legislative Assembly Act, R.S.N.B. 2014, c. 116, ss. 2, 4-6, 8-9, and 13-14; House of Assembly Act, R.S.N.S. 1989 (1992 Supp), c. 1, ss. 26-35; Legislative Assembly Act, R.S.P.E.I. 1988, c. L-7, ss. 12 and 27- 37; House of Assembly Act, R.S.N.L. 1990, c. H-10, ss. 6(3) and 8-19. 10 An Act respecting the National Assembly, R.S.Q., c. A-23, s. 42. In British Columbia and Alberta, the “general claim” is made with reference to the privileges, powers, and immunities of the House of Commons of the United Kingdom. Saskatchewan, New Brunswick, Nova Scotia, Prince Edward Island, and Newfoundland and Labrador make “general claims” with reference to the privileges, powers, and immunities of the House of Commons of Canada. For their part, Manitoba and Ontario define a series of specific privileges, powers, and immunities possessed by the legislative assembly, followed by a provision stipulating that nothing in these respective acts deprives the legislative assembly of any privilege, power or immunity it would otherwise be entitled to enjoy. 11 An Act respecting the National Assembly, R.S.Q., c. A-23, ss. 43-55. 3 6. As described in greater detail below, the ARNA also provides the Office of the National Assembly with the discretion to set employment conditions for certain employees that differ from those set out in the collective agreements that would otherwise apply.12 7.