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:
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- 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
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(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;
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- The Attorney General of Canada
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(b) shall advise the heads of the several departments of the Government on all matters of law connected with such departments;
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(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.