This question arose in the New Brunswick case of Power v AG Canada 2021 NBQB 107, appeal dismissed 2022 NBCA 14, with the court determining that there may be circumstances when Parliament could be held liable for enacting legislation later found to be unconstitutional, or so it seems.
Mr. Power was convicted of certain offences in the 1990s. He served 8 months and was released from prison in 1996. He then went to college and became a radiation technologist. He found work and was accredited with the appropriate provincial bodies. At the time he was sentenced and completed his sentence he would have been eligible to obtain a pardon under the then applicable Criminal Records Act. In 2011 an anonymous tip was made to his employer indicating that he had a criminal record. He was suspended from his job as a risk to the Health Authority. In 2013 Mr. Power applied for a pardon (now referred to as a record suspension). His application was rejected on the basis that he was no longer eligible for a pardon (or suspension) since changes to the legislation relating to pardons and record suspensions in 2010 and 2012 had rendered the offences for which he had been convicted no longer pardonable. In 2017 the retroactive application of the legislation was declared unconstitutional on the basis that the consequences of convictions (which included both a sentence and the possibility of pardon) prior to the 2010 and 2012 enactments had been made harsher by the exclusion of the possibility of pardon.
In 2018 Mr. Power brought an action against the Attorney General of Canada, acting for both the Crown and Parliament, alleging that “the imposition of the [provisions of the new legislation] by the government were clearly wrong, taken in bad faith and an abuse of process”. In essence Mr. Power was claiming that when Parliament enacted the provisions in question it was acting in bad faith and was effectively abusing its authority. This is evident from the way that the Attorney General argued its case. The Attorney General posed the questions before the court as:
1- Can the Crown, in its executive capacity, be held liable in damages for government officials and Ministers preparing and drafting a proposed Bill that was later enacted by Parliament, and subsequently declared invalid by a court pursuant to s. 52(1) of the Constitution Act, 1982? and
2- Can the Crown, in its executive capacity, be held liable in damages for Parliament enacting a Bill into law, which legislation was later declared invalid by a court pursuant to s. 52(1) of the Constitution Act, 1982?
The Court of Appeal summarizes Canada’s argument as follows [para.20]:
As for Mr. Power’s claim for damages under s. 24(1) of the Charter, Canada maintains that the Parliament of Canada and the Executive branch of government (i.e. Ministers and staff) – when performing an essentially legislative function, such as proposing and drafting legislation – are protected from liability. Canada argues that the state, in exercising its legislative functions, is subject to what it describes as “absolute immunity” (or something approaching it) in respect of the enactment of legislation. To further clarify, Canada maintains that the mere enactment of legislation by Parliament (and with the assistance of the Executive branch) which is later deemed to be unconstitutional cannot give rise to any entitlement to damages under 2. [sic] 24(1) of the Charter because of this immunity, founded upon the principles of Parliamentary privilege and the constitutional division of powers as between the Legislative, Executive and Judicial branches of government.
The Attorney General argued that because of the separation of powers, the government should not be held liable for the enactment of legislation, since Parliament is a separate constitutional actor from the government. It also argued that, based on Mikisew Cree First Nation v Canada (Governor General in Council) 2018 SCC 40, the role of government officials and Ministers in introducing and promoting the legislation through the Houses was part of the legislative process and therefore protected by parliamentary privilege and not reviewable by the courts.
The result of these two arguments was summarized by the Court of Appeal [para 22] into the following question “does the state enjoy an absolute immunity in respect of the passage of legislation? In effect, is there absolute state immunity with respect to the legislative function?” By framing the questions in terms of “passage of legislation” and “legislative function”, the court was led into an analysis that confuses the distinction between government and Parliament, misconstrues the nature of Parliament and could result in other claims relating to alleged “bad faith and abuse” in legislative processes thus infringing the independence of Parliament.
These issues all stem from attempts to examine the problem through the lens of private law causes of action based on “individual” responsibility, rather than as a fundamental question of constitutional law and remedy. Instead of asking the simple question of “whether (and when and how) damages are available under section 24 when legislation is declared unconstitutional under s.52?” the court embarks on an examination of various potential common law tort claims (e.g., acting in bad faith, abuse of power, abuse of authority) that then have to apply to a particular institution, in this case Parliament, exercising some form of malicious intent. This in turn leads to various claims of privilege, immunity and trying to place responsibility onto others – the government looking to Parliament and the possibility of hiding behind Parliament’s immunities.
To follow this path is a fool’s errand and may cause more damage to the constitutional architecture than would result from addressing the real issues. To try to ascribe any liability to “Parliament” presents numerous constitutional and legal problems. Parliament is not a legal personality or entity as is the Crown. It is composed of three separate and distinct constitutional bodies; the House of Commons, the Senate, and the Queen as represented by the Governor General. It is only when all three act to reach the same conclusions that one can say that Parliament has acted. So, which of these entities is the court speaking of? And even if the court is speaking of only the House of Commons, which is not Parliament, the House of Commons as a legislating body has no legal personality. Nor does the Senate.
Also, even if it could be said that “Parliament” is a legal and culpable body, what Parliament would be liable? At the time of writing Canada’s Parliament is legally and constitutionally the 44th Parliament, and the legislation at issue was enacted by the 40th and 41st Parliaments. Each Parliament is separate and distinct from each other Parliament. At the end of a Parliament, the particular Parliament is dissolved and ceases to exist. In the same way that a Parliament cannot bind its successors, its successors cannot be liable for the “actions” of its predecessors. This is contrasted with the government, or executive, that has a continuing personality since it represents the Crown as the state, which has continued existence.
Another problem is the necessary search for the directing mind(s) that would allow for a court to find the necessary maliciousness, bad faith, or abuse for a decision taken by over 400 independent constitutional actors, with varying political backgrounds, making decisions for various personal and political reasons, often based on majority votes (implying negative votes) taken within separate institutions. Even assuming one settles on the Minister who introduced the Bill as providing the basis for founding the intent of the Bill that became an Act, to carry this notion to the extent that one could infer a malicious intent on the institutions that constitute Parliament would be to diminish the institutions and their members to constitutional meaninglessness. All the democratic underpinnings of legislative bodies composed of multifaceted political, geographical, personal and representative interests combing views through debate and compromise would be collapsed into the minister or government which only comprises a portion of each House. The Crown, as represented by ministers, does not form Parliament. In the extreme this is the antithesis of democratic parliamentary government.
The framework argued for by the plaintiff (Mr. Power) and essentially endorsed by the court is one that does not fit, and should not be made to fit, litigation seeking damages for legislation found to be unconstitutional. To stretch the common law causes of action and responsibility to this extent distorts the constitution and fails to recognize the unique place of parliamentary institutions within the constitutional architecture. At the same time, the state should not be able to hide behind the consitutional protections that ensure the independence of parliamentary institutions from intrusions by the Crown (government) and the courts to protect the executive (government) from the consequences of laws found to be unconstitutional. The Crown’s relationship with the courts is between those branches of the State. Parliamentary privileges only come into play to protect the parliamentary institutions and their proceedings.
That the legislative and legislating function of parliamentary may be protected by privilege and constitutional architectural reasons from direct legal action, does not mean that the Crown in its capacity as representing the State cannot be held liable for potential damages suffered by citizens at the hand of the State. What is important is to recognize that these infringements of rights are not caused by private actors and therefore any alleged damage caused should not be remedied through private law causes of actions. They should be addressed through public law processes that respect the constitutional roles of each branch including the various factors, privileges, powers and authorities required of each to carry out constitutional functions. In the same way that judicial review is different from an action in contract, tort or property, with standards, factors and remedies that are tailored to the place of the executive in the constitution, any court review of potential remedy flowing from laws found to be unconstitutional must respect the unique place and role of Parliament in the constitutional order. The answer does not, and cannot, lie in trying to fit any “liability” into a common law framework designed for private claims, or even claims against the Crown as executive.
An unintended consequence of allowing damages based on private law tort concepts is that although initially applied to constitutional damages, it could become the basis for future non-constitution based claims for legislation argued to be in “bad faith” or enacted as a result of an “abuse of process”. There is little in the judgment that indicates that any such tort-based analysis is uniquely applicable to a finding that the legislation was first declared unconstitutional. By using a tort analysis, the court opens the door to expanded claims not necessarily related to the enactment of unconstitutional legislation.
If there is a need to deal with damages that flow from a law being declared unconstitutional, that framework must respect the constitution and the roles, nature, and function of the parliamentary institutions, yet at the same time provide for remedies that address the situation. This can only be done if the right question is directly posed and directly answered. Trying to fit the “problem” into a framework designed for other legal problems, or to try to avoid answering the issue by applying principles not intended for the purpose asserted can only lead to a distortion of the constitution with potential for unknown consequences. There may be a basis for seeking damages for the application of laws later found to be unconstitutional. However, any such analysis should be anchored in constitutional and public law concepts and principles not private or common law ones.