Month: August 2024

In the first blog in this series on the Supreme Court of Canada Decision in Canada (Attorney General) v. Power, 2024 SCC 26, I wrote that in order to attribute liability for Charter damages flowing from an unconstitutional statute the majority of the Court collapsed the separation of powers into a amalgamated construct of “the State”. The “State”, to this point in time, is an unknown concept to Canadian constitution.  (See https://lexparl.com/2024/07/23/supreme-court-takes-a-sledgehammer-to-constitutional-architecture-part-i-demolishing-the-walls-of-separation-of-powers/ )  In a second blog I discussed how this resulted in the majority of the Court making all “state” actors who are responsible for legislation liable for the enactment of the Act in question, including Parliament.  I wrote how attaching liability to Parliament would infringe parliamentary privileges that protect the independence of Parliament and upset the various constitutional principles and doctrines that underpin the system of Westminster government in Canada. (See https://lexparl.com/2024/08/01/supreme-court-takes-a-sledgehammer-to-constitutional-architecture-part-ii-hammering-at-the-parliamentary-foundation/ ).

None of these innovations by the Court was necessary. A proper understanding of the history and development of the constitution provides a simpler answer which would have caused little or no harm to the doctrine of the separation of powers or the independence of Parliament.

The concept of the “State” is unknown to the Canadian constitution. It is a concept that derives from, and is necessary for, republican systems of government.   Canada is not a republic.  It is a constitutional monarchy with a Westminster system of government.   The adoption of the Charter in 1982, did not change the basic foundations of the constitution or its architecture. As a result, the Crown remains at the centre of the constitution and for most purposes the Crown is the embodiment of the state.

Not only does the Preamble of the Constitution Act, 1867 proclaim that Canada is to have “a Constitution similar in Principle to that of the United Kingdom”, the text of the Constitution Act, 1867 clearly indicates how that is to be institutionally achieved.  In clear terms, “The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen [now the King], ” [s.9]  The King is represented by the Governor-General who primarily acts on the advice of the Privy Council (his ministers). [s.11] Similarly, each Parliament consists of “the King, an Upper House styled the Senate, and the House of Commons.” [s.17] Every Act of Parliament makes this evident with the enactment recital that states “His Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows…” In constitutional terms laws are enacted by the King in Parliament.  Finally, the superior courts continued by section 96 of the Constitution Act, 1867 have inherent jurisdiction and continue to exercise their powers as His Majesty’s courts.  In many provinces, including New Brunswick where the Power case was heard at first instance, the superior courts are styled as the Court of King’s Bench.

The failure to understand the distinction between “the State” and the “Crown” was a critical error that led the majority astray.  Had the majority recognized and accepted this fundamental difference the answer to the problem before them would have been much more obvious and straight forward.  The nature of the Crown, and the role of the law officers of the Crown, primarily the Attorney General, are known and definable.  At the same time the relationship between the Crown and the other constitutional actors continues to evolve, as does the nature of the law and the constitution.  This evolution has required the courts, in light of constitutional changes, to re-examine the evolving responsibility of the Crown.   One example since the adoption of the Charter is the development of the duty of the Crown in its relationship with indigenous peoples.

There is no debate that the powers and prerogatives of the Crown flow from the constitution and that its powers and prerogatives are shaped and confined by the constitution and the law.  This is consistent with the constitutional principles, identified by the majority in Power, of respect for the rule of law and constitutionalism.   To ensure that these obligations are met the ancient office of Attorney General was established to provide the necessary legal advice to the Crown to carry out its functions in a manner that respects both the formal constitution and the relevant constitutional values.   The role of the Attorney General has been broadly defined as to advise to the Crown and to advocate on behalf of the Crown, within a more general obligation to ensure that the Crown acts in the public interest.  In the context of Charter rights this includes ensuring that the Crown considers and respects these rights when carrying out all its functions, executive and otherwise.

In Canada, at the federal level, the role of the Attorney General has been divided between the Minister of Justice and the Attorney General, but this in no way diminishes the Crown’s constitutional roles and responsibilities. Anyone, regardless of their title, who legally advices or represents the Crown has the obligation to do so in a way that ensures that the Crown acts in a manner that is constitutional.

The broad historical role of the Attorney General is set out in subsection 5(a) of the Department of Justice Act. The Attorney General “is entrusted with the powers and charged with the duties that belong to the office of the Attorney General of England by law or usage, in so far as those powers and duties are applicable to Canada.”  Other duties and functions of the Minister of Justice and Attorney General are enumerated in that Act as:

1. 1. 4. The Minister [ex officio Attorney General] is the official legal adviser of the Governor General and the legal member of the Queen’s Privy Council for Canada and shall

(a) see that the administration of public affairs is in accordance with law;

(b) have the superintendence of all matters connected with the administration of justice in Canada, not within the jurisdiction of the governments of the provinces;

(c) … generally advise the Crown on all matters of law referred to the Minister by the Crown;

 

1. 1. 5.  The Attorney General of Canada

(b) shall advise the heads of the several departments of the Government on all matters of law connected with such departments;

…

(d) shall have the regulation and conduct of all litigation for or against the Crown or any department, in respect of any subject within the authority or jurisdiction of Canada; …

 

While there may be some debate about where the executive functions of the Crown end and its legislative functions begin, there is a clear obligation on the Crown to examine its policies and any proposed Bill or statutory instrument complies with the Charter.  The Department of Justice Act sets out both the obligation and the expected practice for the Minister of Justice in relation to Charter compliance.

4.1 (1) … the Minister shall, in accordance with such regulations as may be prescribed by the Governor in Council, examine … every Bill introduced in or presented to the House of Commons by a minister of the Crown, in order to ascertain whether any of the provisions thereof are inconsistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms and the Minister shall report any such inconsistency to the House of Commons at the first convenient opportunity.

Charter statement

4.2 (1) The Minister shall, for every Bill introduced in or presented to either House of Parliament by a minister or other representative of the Crown, cause to be tabled, in the House in which the Bill originates, a statement that sets out potential effects of the Bill on the rights and freedoms that are guaranteed by the Canadian Charter of Rights and Freedoms.

Purpose

(2) The purpose of the statement is to inform members of the Senate and the House of Commons as well as the public of those potential effects.

The Charter statement is prepared for Parliament, and it is designed so that Parliament is able to assess the constitutionality of a proposed Bill.  It allows Parliament to hold the government to account for its legislative agenda.  As a statement to a House of Parliament for parliamentary purposes, challenging or trying to enforce this obligation in the courts raises numerous parliamentary privilege issues that are addressed in my earlier blogpost ( https://lexparl.com/2024/08/01/supreme-court-takes-a-sledgehammer-to-constitutional-architecture-part-ii-hammering-at-the-parliamentary-foundation/ ).    However, the obligations set out in the Department of Justice Act provide a basis for supporting an obligation on the Crown to consider Charter issues in all aspects of its work. This obligation is clearly grounded in the responsibility of the Minster of Justice and Attorney General for the administration of justice and the duty to act in the public interest.  And it is the failure to meet these obligations in the face of an enactment that is “clearly unconstitutional” which imposes liability on the Crown, including the possibility of s. 24 damages.

Since Parliament is independent of the Crown, it is constitutionally impermissible for the courts to hold the Crown directly liable for the decisions Parliament, including the enactment of unconstitutional legislation.  However, once a law is enacted the law is s responsible for enforcing and the law in in a manner consistent with the constitution.  This obligation logically includes addressing and remedying any constitutional flaws in the laws.   Responsibility for the administration of justice in a manner that is consistent with the constitution is not a static responsibility, since the constitution, as a living tree, is always speaking.  It is neither unreasonable nor a constitutional stretch for the courts to find that there is an obligation on the Crown to be ever vigilant and to take the necessary steps to address and rectify any law or enforcement of a law that would lead to potential constitutional harm or require a constitutional remedy.  The liability would not be for the enactment of the unconstitutional law, since that would infringe on the independence of Parliament.  It would be for the failure of the Crown to address the unconstitutional aspects of the law.

The first obligation of the Crown in the context of potentially unconstitutional legislation is to keep a constant supervision of all Acts (and regulations) with a view to identifying any constitutional issues, and where possible to take proactive steps to mitigate any possible effects.   This ongoing analysis includes weighing all laws against the prevailing Charter jurisprudence, and whether the Crown can defend the law under s.1 of the Charter.   While it is true that the Crown’s constitutional role is to execute the laws enacted by Parliament, and that the Crown cannot dispense with any law, there is a question as to whether a law that is unconstitutional (or that the Crown cannot reasonably defend under s.1 of the Charter) is a law.  Even if one stubbornly holds to the premise that a law is constitutional and has normative effect unless and until either repealed or found to be inconsistent with the constitution by a court of competent jurisdiction, there are numerous tools available to the Crown to determine the constitutional applicability of a statute in a timely way.

While it may seem simple to suggest that the next course of action is to require the Crown to introduce legislation to resolve the constitutional issue, this is easier said than done.  Although it might be a good practice for the Crown to prepare a Bill to address the issue on a case by case, or perhaps by an annual omnibus bill, there is a risk of delay combined with the challenge of the scarcity of parliamentary time.   This could also raise the potential for courts being seen to interfere in the workings of Parliament.  At the same time, consideration of legislative change is a part of the Crown’s vigilance in the administration of justice.

In lieu of focussing on the functions of the Crown and the legislative process, there are other functions, roles and responsibilities of the Crown in its executive and advocacy capacities that can be expeditiously exercised once a law has been determined by the Attorney General of Minister of Justice to be “clearly unconstitutional.”

In accordance with Article 3 of the Bill of Rights, 1689, and the rule of law, the Crown cannot dispense with or refuse to execute laws passed by Parliament.  However, a law that is determined by a competent authority to be unconstitutional is not a law.  The Crown has numerous tools to have the constitutionality of a law determined, without engaging the legislative process.   And as part of the executive function of the Crown, the courts would have the capacity to consider whether the Crown took any of these steps, or omitted any options that would avoid the application of a law found to be unconstitutional. In addition, timely action to address the constitutional status of the law could be seen as either fulfilling the Crown’s obligation to the point of avoiding liability is found, mitigating any s. 24 damages.

In many cases laws are executed and applied through administrative agencies and government officials.  This was the situation in Power.  Mr. Power could file an application for an administrative pardon, even though the Act precluded the granting of a pardon in his situation. Mr. Power could have raised the issue of the constitutionality at that point. This would have engaged an administrative decision maker in determining the constitutionality of the prohibition, before granting or rejecting the pardon.   In many instances an administrative decision maker has the capacity to determine constitutional questions in exercising their powers, including considering the constitutionality of the statute that grants them their powers.   Also, where there is potential doubt, the decision maker can seek the advice of its legal advisors who are lawyers acting for the Crown.  At that point the Crown can advise on both the constitutionality of the legislation and the jurisdiction of the decision-maker to not follow the statute on constitutional grounds.   If there is a question as to whether the decision maker has jurisdiction, or if it is decided that they do not have jurisdiction to not follow a law on constitutional grounds, there is still an expeditious way to determine the question of the constitutionality of the act.

Pursuant to s. 18.3(1) of the Federal Courts Act, “[any body, person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament] may at any stage of its proceedings refer any question or issue of law, of jurisdiction or of practice and procedure to the Federal Court for hearing and determination.”  This means that the decision maker, on their own, or on the advice of counsel (often, but not always employed in the Department of Justice and Attorney General), could delay their decision in order to refer the question of constitutionality to the Federal Court.  Additionally, s.18.3 (2) provides that “ [t]he Attorney General of Canada may, at any stage of the proceedings of a federal board, commission or other tribunal, …, refer any question or issue of the constitutional validity, applicability or operability of an Act of Parliament or of regulations made under an Act of Parliament to the Federal Court for hearing and determination.”  There is an expeditious way to have the matter of the constitutionality of an Act determined summarily by the Federal Court, which, as a court of competent jurisdiction, has the power to declare any federal law unconstitutional under s. 52.   The test of the majority of the Supreme Court in Power, is that to obtain a remedy under s.24, the provisions of the Act must be “clearly unconstitutional”.  If its is determined that this threshold is met either by counsel bringing the application or the Attorney General, any application to the courts under s.18.3 within this context, should be able to be resolved quickly and in a summary fashion.

If the question of the constitutionality of a statute does not come through an administrative process, but directly to a court, by way of an application for a declaration of constitutional invalidity, or in a action, the Attorney General has the opportunity, if they determine the law is “clearly unconstitutional”, to concede the issue at the earliest opportunity, again avoiding or limiting any potential s.24 damages.   The ability to address the issue at an early stage is evident from the procedures of the Federal Courts Act where the federal Crown, and in some cases the Attorney General, must be the named respondent in any action or application brought, and the Attorney General must be served with a copy of every judicial review application filed in the Federal Courts. This gives the Attorney General the opportunity to intervene and bring any motion within the application, including motions on the constitutionality of and legislation in question.   In addition, where a constitutional issue arises in any case, not only must the Attorney General of Canada be provided notice, but so must the Attorneys General of all provinces and territories.  Similar provisions are found in the rules of practice in most provinces and territories.  Once served or notified the Attorney General is required to turn his mind to whether the Act is “clearly unconstitutional” and to concede the issue, or bring a motion to concede the issue, at an early stage in the proceedings.  Since the Federal Courts, as well as the Superior Courts of the provinces and territories, are courts of competent jurisdiction, they have the jurisdiction to both declare legislation inconsistent with the Charter and to grant any administrative remedies or damages as s.24 remedies.

The Crown also has the capacity to bring a refence to the Supreme Court of Canada to address the constitutionality of any statute or proposed law pursuant to s.53 of the Supreme Court Act.  While not likely where a proposal or statute would be “clearly unconstitutional”, this provision is another indicator of the role and capacity of the Crown to involve the courts in determining the constitutionality of legislation or proposed legislation.

Once a statute has been found to be unconstitutional, it may be possible for the Crown, in its executive capacity, to revisit the files and applications that applied the constitutional law and either grant the application or to advise those who had applied and were denied for constitutional reasons to resubmit their application.

At the grant of Royal Assent, a law is enacted, and Parliament is functus.  At that point the Crown is responsible for the enforcement and administration of the statute in a manner that is constitutional.   The crown has various means and tools to have the courts determine any question of interpretation, application or constitutionality of the statutes enacted by Parliament.  All the actions and functions outlined above fall within the scope of the Attorney General’s responsibility for the administration of justice, advising the Crown to carry out its functions in a manner that is consistent with the constitution, and his responsibilities to act in the courts in on behalf of the Crown.  The decisions and omissions of the Crown are justiciable and failure to carry out these functions resulting in a violation of the constitution can make the Crown liable for constitutional remedies for its failings.

The determination of a remedy through the courts has many aspects.  There are both legal and practical considerations in addressing the question of liability and remedies.  First, is the right or obligation one that is justiciable in the courts?  Second, is the capacity of the person or body against whom the right or obligation is imposed, and a remedy sought, subject to the jurisdiction of the court?  Are they a “legal person” or do they enjoy immunity from   the court’s jurisdiction?  Third, as an aspect of the rule of law and its procedural fairness aspects, does the respondent have the capacity to participate in all aspects of a legal proceeding in order to defend itself, including determining the obligation, arguing the facts and law, negotiating any settlement, and presenting arguments on all procedural issues that arise in the course of litigation?  Finally, do the courts have the jurisdiction to make and enforce an order against the respondent?

As explored in my earlier blogposts. Parliament lacks the capacity to be a party in a legal proceeding.  First, Parliament is tri-partite, composed of three distinct constitutional bodies that can only be recognized as a Parliament when they act together. Second, the Houses that compose parts of the Parliament are not themselves entities, but rather a collective of individual constitutional actors as Members or Senators.  Third, each Parliament, and the House of Commons within it, is ephemeral.  They are time limited and come to an end with a dissolution when they cease to exist.  Each Parliament is succeeded by a new, separate and distinct Parliament.  The Crown, by contrast is unified at each level of government, and it endures during and between Parliaments.  Similarly, Ministers of the Crown (the government), including the Minister of Justice and Attorney General, remain in place after dissolution of a Parliament to carry out the obligations of the government and the Crown until the Governor General calls on the person having the confidence of the House of Commons in the next Parliament to form the next Ministry.

I explored the first two questions in the earlier blogs.  The third question, being the ability and capacity of a House of Parliament to participate in litigation also deserves to be explored.   As a collective decision-making body, composed of hundreds of equally elected (or appointed) constitutional actors, there is no directing mind able to provide instructions or input into a legal proceeding brought against the House acting in its constitutional legislating capacity.   Each decision throughout the litigation process would have to be made or endorsed by the entire House.  In addition, again as a matter of respecting the rule of law and the right of all litigants to counsel, a means would have to be found to have each of these decisions taken in a manner that respects the solicitor-client privilege and any litigation privilege.  Legal matters, litigation, strategy and advice normally take place in a legally protected, privileged and private space.  For this legal protection to be achieved in a body that is fundamentally transparent and normally sits in public and for which the public will hold its members accountable, is impossible.  The House, even if it could collectively make the necessary decisions, would be at a severe legal and litigation disadvantage.

Any suggestion that litigation could be managed through the management boards and committees of each House, or the Speaker, is a misunderstanding of the constitutional and legal roles and limits on each of these bodies or individuals to act in legal proceedings brought against a House for carrying out a constitutional function.  The Boards and committees of management are limited to acting on matters of finance (i.e. budgetary and sending of budgets) and administration.  They have no capacity to speak or act for the House on matters that fall within the constitutional functions or the privileges of the House.  As for the Speaker, he has no ability to act on his own to represent or act for the House.  He only acts in a manner that carries out any direction or decision of the House.  As was so eloquently stated by Speaker Lenthall in 1642, “I have neither eyes to see nor tongue to speak in this place but as this House is pleased to direct me”.  In short, all decisions would still need to be taken by the entire House, and then communicated through the Speaker.

All of these constitutional, legal and litigation challenges, and resulting immunities, apply only to “Parliament” and its constituent Houses.  They do not apply to the Crown.  Although there are some limited Crown prerogatives and privileges, the Attorney General specifically has the capacity and responsibility to act in litigation brought against the Crown.  Not only does the Crown bear the liability, it has the means, capacity and internal management tools to conduct the litigation required.

Since the advent of constitutionally enforceable human rights, particularly in the adoption of the Charter, additional obligations have been placed on the Crown to ensure that its actions and polices meet these obligations.   There has also been a developing concept of the rule of law and constitutionalism which has also placed more responsibility on those who govern, i.e. the Crown and their legal advisors.  This has resulted in shift is our understanding of the Crown, that is reflected in statutory changes, such as the addition of ss,. 4.1 to 4.3 of Department of Justice Act, and aspects of the Federal Courts Act, that provide various mechanisms for the Crown to take steps early in litigation (or even before litigation) to address constitutional questions and concerns, many of which emanate from legislation enacted by Parliament.    These are obligations and responsibilities of the Crown, not Parliament.  While the issues may have been created by Parliament, it is the Crown that has the ability, capacity and responsibility to resolve the issues raised.

To have the constitutional questions raised in the Power case addressed as an aspect of a function or role of the Crown respects both the separation and the independence of Parliament.  More importantly it does no damage to the constitutional architecture. It was not necessary and may have been a mistake for the majority of the Supreme Court in Power to create a new concept of “the State”, when what it should have done was to examine the roles and responsibilities of the existing separate constitutional actors and to assign the necessary obligations and responsibilities to the “person” who had both the constitutional and practical capacity to address the issues raised.  And that is the Crown.

 

In addition to distorting the separation of powers, the majority of the Supreme Court of Canada, in Canada (Attorney General) v Power 2024 SCC 26, also degraded parliamentary privilege and the independence of Parliament.

The two questions posed to the court were essentially based on parliamentary process and the independence of Parliament from both the government and the courts. The Crown argued that when Ministers, and those supporting them, are preparing bills to introduce into parliament, and are engaged in the House of Commons through the legislative process, the Crown is carrying out a legislative, not executive, function. As such, they enjoy the protections of parliamentary privilege. They, like all participants in parliamentary proceedings enjoy the protections of Article 9 of the Bill of Rights, 1689. The Article provides “That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”. In its earlier decision in Canada (House of Commons) v Vaid 2005 SCC 30, the Supreme Court indicated that “[p]arliamnetary privilege was partially codified in art. 9 of the U.K. Bill of Rights, 1689…”. From this the court concludes that both the freedom of speech and control over proceedings were categories of activities beyond the reach of the courts to “question or impeach” or otherwise interfere with. The Crown also relied on Mikisew Cree First Nation v Canada (Governor General in Council) 2018 SCC 40, in which the Supreme Court determined that the duty to consult indigenous people did not apply when the Crown was preparing and proposing bills to introduce into Parliament, since the preparation of bills formed part of a parliamentary proceeding and was therefore protected by parliamentary privilege.

The Crown also relied on the jurisprudence of the Supreme Court that establishes that no part of the constitution can abrogate another part of the constitution, and that there is no priority or hierarchy of constitutional provisions, written or unwritten. Parliamentary sovereignty flows from the preamble of the Constitution Act, 1867. Parliament’s sovereignty and independence is the foundational cornerstone of the Westminster system of government. Although the Chater placed further jurisdictional limits on legislation, the advent of the Charter did nothing to alter the architecture of the constitution, including the doctrine of parliamentary sovereignty.

Although not considered by the majority in the Power decision, there is clear post-Charter jurisprudence that the doctrine of parliamentary sovereignty, as a matter of jurisdiction, is still part of the constitution. An aspect of this doctrine, when combined with parliamentary privilege, is that courts are precluded from examining into the motivations for the Crown introducing bills and for Parliament enacting legislation. This is even the case where “Parliament has been induced to enact legislation by the tortious acts and omissions of Ministers of the Crown.” [Turner v Canada [1992] 3 FC 458, cited by Jamal J in his partial dissent in Power para. 224]. This justiciability question is founded in the decision of the House of Lords in Pickin v British Railways Board, [1974] AC 765 to the same effect. The Pickin decision was cited by the Supreme Court of Canada as supporting this aspect of parliamentary sovereignty in Vaid para. 45.
Until Power, these doctrines were generally accepted in Canada, the UK, and throughout the Commonwealth. However, with its decision, the majority upsets these doctrines that support the independence of Parliament in three interrelated ways.

First, it collapses the distinction between government and Parliament, thereby making government responsible for law-making despite the fact that section 91 of the Constitution Act, 1867 specifically and exclusively assigns this responsibility to Parliament. “Joint” responsibility now has the potential for the government to further interfere in the business of the House in order to manage or mitigate the government’s liability. By merging the “government” with Parliament, the decision has the potential to diminish both the legislating and the accountability functions of Parliament. While there is a premise in the Westminster system that the House of Commons will allow the government to govern and to have priority for the introduction of legislation, the government only exercises these functions and powers as long it has the confidence of the House. In addition, it is one of the constitutional functions of Parliament, particularly the House of Commons, to hold the government to account. Both functions point in the opposite direction from the majority decision in Power. It is Parliament that is paramount in these domains, not the government. The majority places government at the forefront of the relationship, whereas Westminster government gives primacy to the elected House of Commons. How far government will be able to, or be required by the courts to, take on more responsibility at the expense of Parliament and the House of Commons, is yet to be determined. For those who have feared the concentration of power in the Prime Minister’s Office and the Privy Council (cabinet) office, this decision will just add to that concern.

More significantly, the majority in Power would have the courts be able to “[hold] the legislature liable for Charter damages”, [para. 82] thus placing the House and legislative assemblies under judicial supervision for their legislating function. They recognize that this will involve the courts in interfering in the legislative process, but note that making “the legislature” subject to this extent “does not constitute undue judicial interference in the legislative process.” [para. 82 -emphasis added] They add the “while the separation of powers demands a core of legislative autonomy, it also demands legislative accountability through the role of the courts.” [para 82] Presumably, what constitutes “a core of legislative autonomy”, and whether the interference by the courts is “undue” will be left to be determined by the courts. The notion that Parliaments can be held liable by the courts for its behaviour runs counter to the foundational constitutional independence of Parliament. Although the majority states that this interference in Parliament is only intended to apply to s.24 remedies, if history is any indication, the matters for which Parliament, its Houses and members can be held liable will undoubtedly expand, as courts determine that there would not be “undue” interference to correct all manner of perceived wrongdoing and personal “harm”.

Determining liability for unconstitutional legislation necessarily involves the court in ascertaining the motive for legislating. Judges will become involved in examining into the proceedings by which legislation is enacted to determine whether the legislature “seriously misus[ed] its legislative power” or legislated in “in bad faith” [paras. 82 and 105]. It is impossible to see how any judicial inquiry into allegations of “misuse” of legislative power or “bad faith” will not involve the courts in questioning or impeaching either or both of free speech and proceedings in parliament, contrary to Article 9.

In order to minimize the courts’ risk of being seen to be interfering in proceedings, the majority narrows what constitutes a proceeding in parliament, to exclude protection for preparation of materials, specifically bills. In Mikisew, the SCC had determined that the preparation of material for the purpose of use in a parliamentary proceeding, was considered part of a proceeding and therefore, in accordance with Article 9, was immune from judicial intervention. In that case the question was whether indigenous people were entitled to be consulted during the preparation stage of bills that could affect their constitutional rights. The court found that since the preparation of bills was part of a proceeding the courts could not intervene and require a particular step in the preparation of the materials. The majority suggest here that there is a distinction between Mikesew, and the Power case since the consultation concerned in Mikesew is procedural, whereas Power involves substance in the form of motive. The majority seems to confuse procedure with proceeding [paras 72, 83, 85]. Proceedings in Parliament do not only involve procedural matters and decisions. Proceedings encompass all the work of each House and their committees do in considering and voting on legislation as it moves though Parliament and in holding the government to account. Proceedings include both procedural and substantive work. By reading down Article 9 to only protect speech and primarily procedural aspects of proceedings, the majority will have further diminished the independence of Parliament and its importance in the constitution.

In addition to potentially shrinking the nature of proceedings, the majority has limited the extent of proceedings. The majority finds that proceedings does not include all preparatory work for the purpose of proceedings, including the preparation of proposed legislation. In doing so , the court has reopened the question of where to draw the line for the beginning of parliamentary proceedings. Contrary to the broad approach of Mikisew, the majority in Power has shortened the chain of development to not even include the drafting of bills. By not specifically overruling Mikisew, the majority has left us with two standards. If the effect of interference by the courts would have procedural implications, then the chain is longer. But, if court review focusses on a substantive question, such a “bad faith”, the chain is short, if not non-existent.

This approach threatens the long-standing jurisprudence of the Court whereby courts can examine the scope or extent of privilege, but not its exercise. The courts effectively recognize, or determine spheres or categories, of activities and functions covered by the claimed privilege and whether matter falls within the category or scope of a privilege. Once that determination is made, that is the end of the involvement of the courts. Judges cannot examine the exercise of the privilege, that is the motive for the activities and decisions with the protected sphere of the privilege. The majority accepts that preparatory work for proceedings is covered by privilege as forming part of a proceeding, which should have ended the matter. However, the majority does not stop where the jurisprudence suggests it must. They go on to decide whether the privilege should apply depending on the purpose and motive for claiming protection of the privilege. This is an exercise question. This seeming retreat from Mikisew opens the possibility for litigants to attempt to intervene in matters intended for parliamentary consideration at any point before the matter comes before either House, based on why the privilege is being asserted. In the case of preparatory materials, this is likely to delay matters which are intended to come before Parliament, or to potentially distort what Parliament was initially intended to consider. There is also a risk of greater court interference in all areas of privilege if the courts can now examine into why a privilege is being asserted, particularly if “bad faith” is argued as the motive.

The majority suggests that creating a liability of Parliament would not create any personal liability, and only occurs after the fact. But the majority fails to appreciate the effects that after the fact review can have on the proceedings themselves. Members, Minsters and witnesses may temper their comments to avoid potential risks of intervention. This misconstrues the entire purpose and nature of parliamentary privilege as set out in Article 9. The privilege of freedom of speech in Parliament is to allow Members to speak, deliberate and vote freely, at the time, without any potential risk being attributed at a later date. Also, Article 9 does not speak of members, it speaks in terms of Parliament, as a collective. Privileges are not held by individuals as such but as members of a collective body carrying out a collective function. Privileges are in place to protect the institution itself from outside interference from other constitutional actors, with Article 9 specifically naming the courts.

For the majority to reach the conclusions that it did, it was necessary for them to degrade the independence of Parliament and the way that parliamentary privileges protect that independence.
Throughout, the majority generally refuses, or consciously omits, to recognize that they are considering parliamentary privilege. While there are some Crown privileges that preclude the courts from examining some prerogative executive functions, when considering the enactment of legislation, the only privileges engaged are the parliamentary privileges and immunities enjoyed by each House and their members, including Ministers when engaged in parliamentary proceedings. The only privileges and immunities relied on by the Crown were parliamentary privileges relating to proceedings in Parliament. However, rarely does the majority even refer to parliamentary privilege, or that the focus of the case is these privileges. Rather, the majority consistently use smore legally ominous rhetoric, based on the collapsing of the separation of powers. At various times, the majority writes “the state is not entitled to absolute immunity” [para.24]; “whether the defence of immunity will be available to the state” [para 4]; “whether the government enjoys absolute immunity; [para 14]; and, “the government does not enjoy absolute immunity” [para 16]. Even in its conclusion, the majority fails to recognize the immunity as being an aspect of parliamentary privilege. “[A]n absolute immunity does not accommodate the principles recognized by this Court’s jurisprudence on constitutional remedies. It leaves little room for the principles that underpin legislative accountability—including the broad and purposive approach to remedial provisions of the Charter, as well as constitutionalism and the rule of law. All these principles militate against absolute immunity.” [para 92]

More significantly, the majority moves Parliament from being the independent, central and primary institution of Westminster government and the defined doctrines that undergird it to constitutional “principles” to be weighed with the amorphous principles of “rule of law” and “constitutionalism”. With respect to “constitutionalism”, the court seems to disregard the fact that Parliament is at the centre of the constitution itself.

There is a clear shift in philosophy by the majority away from recognizing the architectural form of the constitution that flows from the Preamble which provides that Canada is to have a “Constitution similar in Principle to that of the United Kingdom”. In fact, the majority would subjugate the unwritten constitution, which is the essence of Canada’s Westminster system, to any written provisions. “A purposive approach considers constitutional principles…The assumptions that underlie the text and the manner in which the constitutional provisions are intended to interact with one another must inform our interpretation, understanding and application of the text.” [para 27- emphasis added]

While the majority looks at the written remedial provisions of the Charter, and Constitution Act, 1982, it does not attempt to interpret or understand the text of section 18 of the Constitution Act, 1867 . In support of the preamble, section 18 states that

The privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada, but so that any Act of the Parliament of Canada defining such privileges, immunities, and powers shall not confer any privileges, immunities, or powers exceeding those at the passing of such Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the members thereof”. [emphasis added]

As one of the first Acts of the First Parliament each House claimed “ such and the like privileges, immunities and powers as, at the time of the passing of the Constitution Act, 1867, were held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom and by the members thereof” [now Parliament of Canada Act, s.4 – emphasis added] The privileges and immunities of the federal Parliament are as much part of the written text of the constitution as is s. 24 of the Charter.

Notwithstanding these firm and intended constitutional connections in Canada to the Westminster system, the majority writes: “Parliamentary sovereignty, the separation of powers and parliamentary privilege are core features of the British Constitution. As a result, these are also important constitutional principles in Canada.” [para 47- emphasis added] What were once “core features” of the architecture of the Canadian constitution have become mere constitutional principles. As constitutional “principles”, as opposed to a fundamental and foundational part of the constitution, they court can weigh and compromise them with other “principles” such as “the rule of law” and “constitutionalism”. Notably absent, in the majority’s analysis is any discussion the principle of “democracy”, i.e. Westminster democracy. The line of reasoning that parliamentary protections are merely principles to be reconciled with other constitutional privileges is evident from the start of the judgment: “An absolute immunity [unidentified as parliamentary privilege] fails to properly reconcile the constitutional principles such as parliamentary sovereignty and parliamentary privilege, and the principles that require the government to be accountable for infringing Charter rights.”[para 5]

The majority concludes that neither the separation of powers nor parliamentary privilege prevent “Parliament” from being held liable for damages for enacting unconstitutional legislation. However, this is just the beginning of constitutional challenges presented by the majority decision. The majority decision examines and compromises the protections provided Parliament within the constitutional architecture. However, the court does not address the nature of the institution of Parliament and constitutional challenges presented in any litigation to “hold it to account”.

In addition to judicial interference in parliamentary proceedings, and the relegation of parliamentary independence of Parliament parliamentary privilege to “principles”, the decision of the majority to found liability in Parliament.. This raises additional complex constitutional questions relating to the nature of Parliament and its Houses.

The majority uses a simplistic reading of s.32 to found liability. That section provides that the Charter applies “to the Parliament and government of Canada in respect of all matters within the authority of Parliament”. However, the majority ignores earlier jurisprudence of the Court that recognizes that Parliament is not a single entity, and that the liability is in respect of “all matters within the authority of Parliament”. It does not apply to the individual components of Parliament, in particular the Senate and the House of Commons.

In all litigation, and attribution of liability, it is self-evident that liability must be attributable to a legal or juridical “person”, that is, a legal entity. Neither Parliament as a whole, nor its Houses, meet this criteria.

Parliament is not a single, identifiable institution that can be named as a respondent in any litigation. Parliament has three separate and distinct components, the Senate, the House of Commons, and the King as represented by the Governor-General. It is only when the three independent components act together that Parliament has acted. The separate institutions that constitute Parliament are clearly identified in section 17 and Part IV of the Constitution Act, 1867. Throughout the text of both the Constitution Act, 1867 and the Constitution Act, 1982, there is a precise and clear distinction when using the terms “Parliament” and one or both “Houses” of Parliament. Two provisions of the Constitution Act, 1867 are particularly germane. Section 91 empowers “the King, by and with the Advice and Consent of the Senate and House of Commons, to make Laws.” The Houses are identified individually and play their own distinct part in legislating. More significantly, s.18 provides that the “[t]he privileges, immunities, and powers [are] held, enjoyed, and exercised by the Senate and by the House of Commons, and by the members thereof respectively.” That is, that the privileges and immunities are not held by Parliament, but by each House, separately and distinctly.

Each House is independent of each other. Each enjoys its own privileges and immunities that they can choose to exercise and assert independently of the other. This means that any action to determine “bad faith” or “abuse of authority” would have to be brought against each House separately. And each House would then be able to then assert, defend and argue its privileges and immunities on its own terms and to protect itself from all others, including the other House if necessary.

This raises the next constitutional issue. Is it possible to bring any legal action against either House, particularly the House of Commons? This in turn raises question as to the nature of the House of Commons, and whether the House has any, or sufficient, legal personality to be a respondent in a legal action. The House of Commons is not an institution or entity that has a separate existence that it then peoples or staffs from time to time. Members are not “legislative officials” that “carry out their functions of debating laws and holding the government to account.” [para 50] The House of Commons is its members. Each member is elected individually and thereby derives the individual constitutional right, along with each other member elected, to be summoned by the Governor General to be the House of Commons. The House of Commons is neither the Crown nor the government. It is composed of members, including members who are also Minsters (the government or ministry), as well as members who support the government, and members of the opposition.

The House of Commons engages in collective, deliberative functions of considering and voting on Bills (often passed over opposition) as one part of Parliament, and deliberating matters of public policy, including holding the government to account. [Vaid]. The House of Commons does not and cannot enact legislation. The House cannot make an independent decision that affects an individual’s legal or constitutional rights. Its deliberations and votes are collective, and only when the separate House, the Senate, reaches a similar conclusion, through its processes as a collective body, does the Bill progress to Royal assent.

Given that the proceedings of the House of Commons are protected from questioning or impeaching by a court, and given that the House is its members acting collectively to carry out constitutional functions, the House of Commons has no legal personality and cannot be a party to a legal action. “By no process of reasoning or of imagination can I conceive of the House as being a person. It is an assembly of persons, albeit, no doubt, the most important one in the country. Nothing in the Constitution Act, 1867 nor in the law, custom and convention of the Constitution as I understand it, gives to the House corporate status or personality. Indeed everything points the other way.” [House of Commons v. Canada (Labour Relations Board) [1986] 2 F.C. 372, per Huggeson JA para 26]

Related to the unique constitutional status of the House of Commons outlined above, is the ephemeral nature of Parliaments and the House of Commons. Each Parliament is a separate and distinct constitutional event. Each Parliament is separately summoned by the Governor General and each Parliament ends with a dissolution. As such the particular Parliament ceases to exist. “The Governor General, by proclamation in virtue of Royal Prerogative, and in accordance with Section 50 of the Constitution Act, 1867, dissolved the 38th Parliament on 29 November 2005, following which writs for the 39th General Election were issued. Thereafter, the House of Commons simply did not exist.” [Gauthier v. Canada (Speaker of the House of Commons), 2006 FC 570, para 14 see also House of Commons v. Canada (Labour Relations Board) [1986] 2 F.C. 372, per Huggeson JA para 26]. The temporal limits on the existence of any Parliament, and the House of Commons in particular, is set out in subsection 4(1) the Charter itself. “4 (1) No House of Commons and no legislative assembly shall continue for longer than five years…” This wording confirms that there is not a single House of Commons, but a series of separate Parliament, none of which can continue for more than five years. [see also House of Commons v. Canada (Labour Relations Board) [1986] 2 F.C. 372, per Huggeson J para 26].

The Limiting Pardons for Serious Crimes Act, S.C. 2010, c. 5, which the majority would have reviewed for “bad faith” enactment was passed in the 40th Parliament. Since then four Parliaments and Houses of Commons have been dissolved. And there has been a change in governments and various changes to the ministry. If a House of Commons is held liable for what a previous dissolved Parliament has enacted, what happens to the doctrines surrounding manner and form provisions in legislation and the constitutional doctrine that no Parliament can bind future Parliaments? How the House of Commons of 44th Parliament can be responsible for an enactment of a former dissolved House of Commons, in a dissolved Parliament, when a different government had the confidence of that House, will require a court to re-examine the various consequences of such a determination. For the majority’s reasoning to apply, a new theory of continuing Parliaments will have to be considered. And it is not only Charter remedies that would be at stake.

In finding a s.24 individual Charter remedy flowing from legislation found to be unconstitutional under section 52, the majority decided that courts would not be “unduly” interfering in proceedings in parliament. In order to justify this level of interference, it was necessary for the majority to change the nature of parliamentary privilege. Any interference by the courts to found liability in Parliament will require the courts, governments and legislative assemblies to rethink much of the architecture of the constitution, particularly with respect to Parliament, which is the foundation and central pillar of Canada’s Westminster system of government. The majority has shifted the centre to the government, as overseen by the courts, reducing the importance of Parliament.

Power is case of bad facts making bad law, or the legal tail of remedy wagging substantive questions of liability and constitutional architecture. For the majority, the question was simple–How to find an individual remedy flowing from a statute that affected an individual’s rights found to be unconstitutional? To address this “simple” question, the answer was to simply reframe the architecture of constitution. One need only collapse the separation of powers into a single “state”, collapse the three elements of Parliament into one, and reject the absolute nature of the constitutional privileges and immunities of each House of Parliament. All without regard to the potential effects on the nature of Parliament and the House of Commons. By providing an avenue of attack on the proceedings of Parliament and subjecting the immunities and privileges of the Houses of Parliament to review by the courts, the majority has placed many of the written constitutional provisions, accepted aspects of the unwritten constitution, and doctrine relating to Parliament and its Houses at risk of litigation and compromise. Until these issues work their way through the courts, likely back to the Supreme Court, the majority of the Court has encouraged litigants to question all aspects of the constitution that relate to the independence and nature of Parliament.