In a 5-4 decision, over strong and compelling dissents, a majority of the Supreme Court of Canada in Canada v Power 2024 SCC 26, has effectively dismantled the doctrine of the separation of powers and begun chipping away at the foundations of parliamentary independence from court interference.
In 1996, Mr. Power was convicted of two indictable offences and served 8 month’s imprisonment. Following his release, he qualified as an x-ray technician, and began work in a provincial hospital. In 2011, his employer found out about the convictions and released him from employment. Unable to find work, in 2013 he applied for a record suspension (effectively a pardon). His application was denied on the basis that in 2010 the legislation relating to record suspensions had been amended to not allow suspensions for the type of offences he had committed. Various court decisions between 2017 and 2020 (none of them in actions brought by Mr. Power) found the amendments to be unconstitutional as retroactively adding to the consequences for committing crimes. Mr. Power then brought an action under s.24 of the Charter of Rights and Freedoms that allows for damages to be awarded to individuals for violations of Charter rights.
The basis of Mr. Powers’ claim was that he was entitled to damages as a result of Parliament having enacted a statute that violated his rights. The Attorney-General, as respondent to the action, conceded the unconstitutionality of the law, but argued that the Crown was immune from suit for Parliament enacting unconstitutional legislation. The Attorney-General posed the following two questions to be answered by first the trial court, then in subsequent appeals including the Supreme Court:
- 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?
- 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?
These two questions engaged issues of parliamentary privilege and the separation of powers. The first would, it was expected, ask the court to consider the different roles of the Crown as executive and as legislator, and whether parliamentary proceedings extended to preparatory materials, including bills. As part of the legislative process, the work would then be covered by parliamentary privilege. The second question raised the separation of powers issue of whether the Crown could be held liable for decisions and enactments of Parliament, itself composed of two independent Houses and the Governor-General in her legislating capacity. In essence, the courts were being asked to clarify the various roles and responsibilities of the Crown as executive government and legislator; the Crown’s constitutional protections of parliamentary privilege for its participation in proceedings; and whether the Crown has any legal responsibility to and for Parliament, other than to execute the laws Parliament enacts.
The answer received from the majority of the Supreme Court was anything but clarifying. Instead of addressing the roles of the various constitutional actors, it muddied and muddled the relationships between them to such an extent that it is now difficult to understand any of the roles and responsibilities of the various actors within our Westminster system of government.
Instead of addressing the questions posed to the court, the majority collapsed the two questions into one , resulting in the court confusing the accepted and understood doctrine, roles and responsibilities that undergird the separation of powers within the Canadian parliamentary system. At first instance, the trial judge had reduced the questions to “whether the state enjoys an absolute immunity in respect of the enactment of legislation[?]”. [para 15] . The Supreme Court accepts this approach: “Both questions ask whether the state may be liable for Charter damages for the enactment of invalid legislation”. [para 22]
In this oversimplified question, the majority court introduces a new and fundamental concept of “the state”, without defining what the “state” consists of and how it is to operate. It lumps all state actors and their constitutional responsibilities together without identifying which actor, in which capacity, is supposed to be doing what, and how they are responsible to each other.
Separation of Powers
The following extracts from the majority opinion illustrate not only the new approach to the constitutional architecture, but the breaking down of even the most fundamental, accepted understanding of the separation of powers inherent in the Canadian constitution.
Constitutional principles require that the state be afforded the legislative autonomy to govern effectively. [para 1]
This opening line of the majority judgment sets the tone by failing to properly identify the various and distinct branches of the state involved in legislating (Parliament) and governing (the Crown as Executive). The court also seems to suggest that the “state” governs through legislating. The roles of legislating and governing are collapsed within this new entity “the state.”
The majority then goes on to attribute legislating capacity to the state, with no reference to Parliament as having legislative responsibility. They also suggest that there may be some immunity for to the “state” but they do not address whether the immunity in question would apply to Parliament, and whether such immunity is founded in the existing immunities of parliamentary privilege.
The state is not entitled to an absolute immunity from liability for damages when it enacts unconstitutional legislation that infringes Charter rights… the defence of immunity will be available to the state unless it is established that the law was clearly unconstitutional, or that its enactment was in bad faith or an abuse of power. [para 4]
In a case that focuses on the effects of legislation the majority suggests that the government , i.e. the Crown, should be held accountable for the decisions of Parliament, and should not be shielded by the fact that a different, independent, branch of the state had been responsible for the potential constitutional infringement.
An absolute immunity fails to properly reconcile the constitutional principles that protect legislative autonomy, such as parliamentary sovereignty and parliamentary privilege, and the principles that require the government be held accountable for infringing Charter rights, such as constitutionality and the rule of law. Each of these principles constitutes an essential part of our constitutional law and they must all be respected to achieve an appropriate separation of powers. By shielding the government from liability in even the most egregious circumstances, absolute immunity would subvert the principles that demand government accountability. [para 5]
Although the majority hints at the need to respect the separation of powers, in these two paragraphs the court confuses and conflates the issue of the roles and responsibility of the distinct actors within the constitutional architecture. By lumping all state actors together it fails to identify who and how the “state” legislates, and further complicates the matter by failing to identify whose immunities are at issue and how they would work. While the first paragraph suggests that the immunities are issue are those of “the state” when it legislates, presumably through Parliament, the following paragraph speaks to the liability of the government, generally understood to be the Crown or the executive. Nor does the court address the issues related to the different immunities required for each of the different constitutional actors. For example, the Houses of Parliament enjoy parliamentary privilege, while the Crown enjoys certain Crown immunities, such as protection of cabinet confidences. These immunities operate differently and for different purposes.
While it might have been easy to see these statements as oversimplification for the purposes of introduction, the majority continues in a similar vein throughout its analysis without providing any real direction as to how to engage this new “state” and who is responsible for what within it.
Following the New Brunswick Court of Appeal decision, the majority, without any comment, seems to agree that
the government does not enjoy absolute immunity in exercising its legislative powers. [Para 16]
This is completely inconsistent with the accepted constitutional position that Parliament, not “the government” legislates. Governments govern as part of their executive functions. The majority continues along this conflated path that confuses Parliament with the government when it dismisses concerns relating to an affect on the law-making process. Such concerns, it states, would not have much effect on the government, which executes the law.
Canada submits that Charter damages would interfere with Parliament’s law-making functions, impeding the state’s ability to govern effectively. While this Court has held that good governance concerns may defeat an award of damages, we have also cautioned that the mere suggestion that damages will have a chilling effect on government is not sufficient to defeat the applicant’s functional entitlement to Charter damages …[para 45]
To address the view that even the “mere suggestion” of damages would deter potential legislation, the majority is of the opinion that if the threshold for liability is high enough for the enactment of unconstitutional legislation, this would not interfere with the “government’s’” legislative function. This repeats and re-enforces the majority’s confusion of the separation of powers and suggests some constitutional fusion of the executive role of government with the legislative role of Parliament.
However, respect for the legislative role requires a high threshold for liability for the enactment of unconstitutional legislation. The high bar for liability established in Mackin ensures that the judiciary does not unduly interfere with the government’s ability to carry out its legislative function. [para 81]
In the next paragraph the court at first suggests that the award of damages, or the threat of damages, might provide guidance to the legislature in its law-making considerations. However, the understanding of the legislature adopted by the majority merges the government with the legislative assembly, by indicating that the assembly is composed of “the government and its representatives”, when the assembly is not a body of government representatives. In our Westminster system of parliamentary democracy, members are representatives of their constituents, and the government, by the nature of responsible government and the requirement of confidence are in effect representatives of the assembly to the Crown.
Insofar as an award of damages provides any guidance to the legislature at all, it merely says that “the government and its representatives are required to exercise their powers in good faith and to respect the ‘established and indisputable’ laws that define the constitutional rights of individuals” [para 82]
This is not a minor slip-up by the majority. The perceived subservience of the House to the government is repeated and re-enforced a few paragraphs later, when, in a section of the judgment where the majority is looking at parliamentary immunities, the implication is that the Parliament is some sort of government agency. Bear in mind that the questions originally posed related to the Crown’s relationship to Parliament.
The nature of the remedy requires “the state (or society writ large) to compensate an individual for breaches of the individual’s constitutional rights” (Ward, at para. 22). For these reasons, the Attorney General for the Crown or a government agency is the appropriate defendant in Charter damages claims [para 84]
In the final section of the majority judgment, on the basis of liability, the concept of “the state” re-emerges. Since the major part of the judgment has focussed on law-making, the responsibility of Parliament, and “the government”, it is safe to assume that the majority is fusing these two branches into some concept of “the state”. Unless the courts develop this notion of “the state” as a concept, and who represents and acts for it, it becomes unclear what evidence, and whose knowledge of particular acts, will found liability. As indicated above, in the case of both the Crown and Parliament, different privileges and immunities, may impede or distort the search for such knowledge or bad faith. As will be seen in the next section, the majority suggests that these would become reconfigured as some sort of “state immunity”.
A finding of clear unconstitutionality will usually imply that the state either knew that the law was clearly unconstitutional, or was reckless or wilfully blind as to its unconstitutionality. [para 104]
[O]ther rare situations may require judges to ask whether there is evidence that the state acted in bad faith or abused its power in enacting the invalid law. [Para 105]
In its concluding paragraphs, the majority again places responsibility on an undefined “state” which is an amalgam of the separated powers in the present constitutional scheme. The majority is unable or unwilling to address the questions relating to how this “state” can be held liable and who within it is responsible for what. If the notion is that the government, or Crown, is liable for an invalid , then it follows that “the government” must be to be constitutionally responsible for that which it is liable, i.e., the legislation. This would be a significant change to the architecture of the Constitution and completely contrary to sections 91 and 92 of the Constitution Act 1867. It would also upset the relationship between the Crown and the elected Parliament, placing the Crown, rather than Parliament, back at the centre of both governing and law-making, thereby undoing centuries of Westminster government.
If the state enacts legislation that is subsequently declared invalid and that is clearly unconstitutional, in bad faith or in an abuse of power, good governance concerns can no longer justify shielding the government from liability for violating Charter rights. [Para 114]
State immunity for the exercise of legislative power remains limited. There is no absolute immunity for the enactment of legislation later found to be unconstitutional. This conclusion answers both of the constitutional questions posed by Canada. In reaching this conclusion, we have explained that the state may be liable for Charter damages for enacting invalid legislation only if it is clearly unconstitutional or was in bad faith or an abuse of power [para 115]
Until this decision the term of “the state” was unknown and undefined as a constitutional concept in Canada.
As a result of the Preamble to the Constitution Act, 1867, Canada is effectively a constitutional monarchy, a system with all authority flowing from, through the Crown. Originally this was based on personal authority of the monarch. But, over time some of the power shifted to Parliament, particularly following the English Civil War and adoption of the Bill of Rights, 1689. Further development in the last 175 years has resulted in responsible government where the Crown’s ministers (the government) are accountable to and must retain the confidence of the elected House of Parliament or of provincial legislative assembly. Finally, universal suffrage ensures full democratic participation and representation in the House that holds the governing executive, the Crown, to account. These organic developments resulted in a defined separation of powers, some of which is set out in the Constitution Act, 1867. Other provisions, such as the preamble, point us to the Westminster system and its history. Each constitutional branch, the Crown as Executive, Parliament, with its two separate and distinct Houses having exclusive legislation making authority- under section 91 of the Constitution Act, 1867 , and an independent judiciary, is identified and given its authority in distinct Parts of the Constitution Act, 1867. Each, therefore, derives its own powers and authorities directly from the constitution.
Within this constitutional framework there is no unified overarching “state”.
The Constitution Act, 1867 and the nature of the Westminster system of government, establish the separate branches with their own constitutionally distinct function, their own accountabilities and their own relationship to the other branches. These cannot be collapsed into one amalgamated concept of “the state”.
Yet, the majority has elevated the “state” from a broad colloquial, non-legal concept to an entity in which the various separate constitutional actors, or branches, become some sort of single, unified, amorphous whole. This new concept of “state” as a constitutional entity challenges the centuries-old understanding of the separation of powers within Canada’s inherited Westminster system of government. By imbuing the entity of “state” with specific and mixed powers the majority has opened the constitutional doors to arguments that would break down much of the constitutional architecture within which the governance of Canada has operated. The majority frequently uses broad and imprecise statements that confuses “the government”, which until now has meant the Crown or executive, with Parliament, particularly when referring to the legislative process. This despite the fact that the Constitution Act, 1867 gives exclusive constitutional authority to legislate to Parliament and Legislatures, not to “governments”. It also seemingly equates “government” with “the state”, thereby putting Executive or the Crown, not Parliament at the centre of Canada’s system of government, which would be contrary to our Westminster foundation.
How the apparatus of “the state” is to operate is left unknown and unstated. How each existing branch is to be responsible to the others, and responsible for each other’s actions and decisions has been left unexplored, presumably to be worked out through years of litigation.
And why did this come to pass? It would appear that the majority was concerned that certain aspects of the existing constitutional architecture, including foundational immunities and divisions of responsibility, might complicate or deny personal s.24 Charter remedies in certain instances. In previous jurisprudence the Supreme Court has been careful to suggest that the Charter is only part of the Constitution and is not to prevent other parts of the Constitution from operating as intended. No part of the constitution was to be subordinated to another, including the Charter. But in order to provide a remedy beyond striking down an Act of Parliament, the majority of the court thought it needed to reconfigure the architecture. The majority explains:
The Charter effected a “revolutionary transformation of the Canadian polity” under which courts were “mandated to bring the entire legal system into conformity with a complex new structure of rights-protection” [para 93]
The decision of the majority of the Court has clearly effected a “revolutionary transformation”. It has undermined the constitutionally settled doctrines of the separation of powers, and the privileges and immunities that maintained these separations, without any suggested alternative constitutional arrangement between the branches of “the state”. Years of uncertainty and unnecessary and complex litigation are likely to follow.
As will be outlined in subsequent blogposts this attack on the separation of power and parliamentary privileges was arguably unnecessary. There were alternate means, and constitutional doctrines that can facilitate appropriate Charter remedies without dismantling Canada’s constitutional architecture. But before discussing the way forward, it is necessary to examine the challenge to the independence of Parliament and its privileges that result from the majority’s opinion.
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COMING SOON
Supreme Court takes a Sledgehammer to Constitutional Architecture
Part II: Hammering at the Parliamentary Foundation
Part II will explore how the majority has diminished the central place of Parliament in our constitution, by reducing its independence and the privileges that protect that independence. The majority degrades the centrality of Parliament by undermining the constitutional protections of parliamentary privilege that “vouchsafe” that independence. By referring to parliamentary privilege and parliamentary sovereignty as constitutional “principles” rather than as being doctrine rooted directly in the constitution. In doing so, the majority is able to “balance” these “principles” with other principles such as the “rule of law”, and to subordinate them to the text of the Constitution Act, 1867, particularly the Charter. This, along with a test for damages based on legislating in bad faith, will allow the courts to effectively supervise and potentially interfere with the proceedings and agenda of the House. This could occur either directly through examination for “bad faith”, or indirectly by supervising and constraining how the government works with and within Parliament and its proceedings.
The next blogpost will also explore the ways that Parliament can push back, by relying on various other constitutional doctrines to challenge judicial interference in its work. Examination will be made of the use of Parliamentary materials in the courts, compelling courts to explain how examination for “bad faith” does not amount to “questioning or impeaching Parliament”. The fact that the two Houses are separate entities is also significant and overlooked in the decision. Also the courts will need to contend with two other fundamental aspects of the nature of the Houses of Parliament, and legislative assemblies. They have no legal personality or capacity to be sued, and most importantly, Parliament is ephemeral, in that each Parliament is separate from each other and that they come to an end with a dissolution and no longer exist. How a present ephemeral Parliament, that itself will likely be dissolved during any lengthy litigation, can be held liable for what a previous, dissolved, Parliament did, will present the courts with yet further challenges.