Author: adminSC

Here is a link to my Blogpost on this subject on the Constitution Unit’s webpages.

The Canadian Prime Minister’s request for prorogation was neither ‘illegal’ nor unconstitutional 

On Monday, December 17 the Finance Minster of Canada resigned hours before she was to present the government’s economic update.  In was clear from her letter of resignation that she and the Prime Minster had lost confidence in each other.  Later that same day, the Liberal caucus met to discuss, among other things the way forward, including whether the Prime Minister should resign. On the other side of the House, the Leader of the party that was the only potential ally to the government also voiced his opinion that the Prime Minister should resign.  By the end of the week the Leader of the NDP indicated that he would introduce a motion of non-confidence in the government as soon as the House resumes from it year-end adjournment at the end of January.

Today, Friday, Piere Poilievre, Leader of the Opposition, has written to the Governor-General requesting her to advise the Prime Minister that he must recall the House to determine whether he has its confidence.  He cites as reasons the turmoil in the government, and the fact that the government is likely to lose a vote of confidence.  While it may be obvious that the House is likely to vote non-confidence in the government, the would-be Prime Minister writing the Governor-General to involve herself in the business of the House shows either an ignorance of the constitution or worse, a lack of care for its proper operation its operation.  To invite the Governor-General into the business of the House not only disrespects the constitution it disrespects the Governor General by dragging her into the political and parliamentary arena.

This approach is also unnecessary as there are ways to address the matter within the constitutional framework and to have the question determined in the forum where such issues are to be raised, the House of Commons itself.   The decision to recall the House during an adjournment lies solely with the Speaker of the House of Commons.   The House of Commons, in which Mr. Poilievre has an integral role, and from which he gets his authority, is the master of its own procedures.  The procedures of the House are set out in its Standing Orders.   Standing Order 28 (3) provides that “Whenever the House stands adjourned, if the Speaker is satisfied, after consultation with the government, that the public interest requires that the House should meet at an earlier time, the Speaker may give notice that being so satisfied the House shall meet, and thereupon the House shall meet to transact its business as if it had been duly adjourned to that time”.    Although such requests are usually made by the government to address an urgent public need, such as back to work legislation for an essential service, there is no reason that the Leader of the Opposition could not make the request of the Speaker.  Even if, as some have suggested, this is unprecedented in Canada, the Standing Orders also provide that  “In all cases not provided for hereinafter, or by other order of the House, procedural questions shall be decided by the Speaker… whose decisions shall be based on the usages, forms, customs and precedents of the House of Commons of Canada and on parliamentary tradition in Canada and other jurisdictions, so far as they may be applicable to the House.” SO 1.

In the present case, if the Leader of the Opposition could convince the Speaker of the public interest in determining the confidence of the House in the Government, then the Speaker would be obliged to take some form of action.  As set out in Standing Order 28, the Speaker would have to consult the government, but this does not mean that the Speaker must accept the government’s position.  The Speaker is the servant of the House, not the government.  If Mr. Poilievre could convince the Speaker that he has the support of a majority of Members that the House should be recalled, the Speaker should either accede to the request or resign since he would no longer be acting on the advice of a majority of the House.  Such a request by the Leader of the Opposition would have to be based on evidence not political innuendo or speculation on the possible outcome of any vote.  Rather there would need to be clear evidence of the desire of a majority of MPs to recall the House.  If Mr. Poilievre is so certain of his position, he should prepare a simple letter to the Speaker asking that the House be recalled to determine, as a matter of constitutional urgency, whether the House retains confidence in the government. The letter could then be circulated to MPs to obtain their specific endorsement for the request.  If a majority of MPs sign on then the Speaker’s hands, as a servant of the House, would be tied to the will of the House.

What happens next is less known and is merely speculation.  The Prime Minister would be left with three options.  He could have his government resign and request a dissolution and election.  He could face the vote in the House seeking some support to stave off defeat.  If the vote is lost, which is likely given the position now of all opposition parties, he would ask that Parliament be dissolved and that an election follow.

His third option would be to ask the Governor General to prorogue Parliament thereby avoiding the vote of confidence.  This would only seem to be credible if he intended to resign as leader and Prime Minister and to allow the Liberal Party to select a new leader, establish a government and face Parliament. If the House still lacked confidence in the government, the new Prime Minister would advise the Governor-General to dissolve Parliament and call an election. The opposition would likely attack such a decision vigorously on the ground that the prorogation is being called just to save the government’s skin and to avoid defeat in the House of Commons. However, such an attack might sound quite hollow coming from the mouth of Mr. Poilievre, who was the Parliamentary Secretary to Prime Minister Stephen Harper when he requested and received a prorogation when faced with an imminent vote of confidence in his government in December 2008.

What is clear is that the matters at hand are political and parliamentary and there is no need or place to distort the constitution by dragging the Governor General in to the halls of the House of Commons and its attendant political mire.

The Auditor General issued a Report to Parliament that exposed numerous controversial contracts, spending decisions, and potential conflicts of interest, relating to the government agency responsible for sustainability projects.   To carry out her work, the Auditor General asked for and received information from various government departments and agencies and from individuals.   As required by the Standing Orders of the House, the report was referred to a Committee of the House, at which the Auditor General was scheduled to appear.

Before the Auditor General appeared, the Conservative opposition MPs concluded that the report disclosed what they believed could be criminal activity, and brought a motion in the House that required the Auditor General and those departments and officials who had provided or used documents in the preparation of the Report

“ to deposit with the Law Clerk and Parliamentary Counsel, within 14 days of the adoption of this order, the following documents, created or dated since January 1, 2017, which are in its or her possession, custody or control….

the Law Clerk and Parliamentary Counsel shall promptly thereafter notify the Speaker whether each entity produced documents as ordered, and the Speaker, in turn, shall forthwith inform the House of the notice of the Law Clerk and Parliamentary Counsel…; and

the Law Clerk and Parliamentary Counsel shall provide forthwith any documents received by him, pursuant to this order, to the Royal Canadian Mounted Police for its independent determination of whether to investigate potential offences under the Criminal Code or any other act of Parliament.”

During debate the motion was amended to delete the phrase “for its independent determination of whether to investigate potential offences under the Criminal Code or any other act of Parliament.”   The amended motion passed with the government MPs voting against it.

What is striking about the motion is that the documents will never actually come into the possession of the House of Commons or its Committees.  The documents in question are not to be provided to the House or its committees for their consideration or use.  This is not an oversight on” the part of those moving the motion.  It is intentional.  There is no doubt that the opposition wanted the RCMP to investigate the “wrongdoings” exposed in the report and that they were proposing that that the power of the House to send for “papers” be used to obtain and pass on documents directly to the RCMP, without any consideration or review by the House or its committees.  The mover of the original motion stated “[t]hat is why this motion is so important, so we can get all the information handed to the RCMP, because this is so serious we believe this warrants a police investigation.”  Another MP stated “We are calling for a RCMP investigation because the current issue is a breach of trust as well as fraudulent behaviour. Would he agree that we have to call the RCMP in here?”  And a third MP makes it clear that the purpose of the motion is only to get the information to the RCMP;  “Madam Speaker, the Conservative Party of Canada is asking the RCMP ultimately to investigate criminality surrounding the misuse of taxpayer funds.”  When asked why the Conservatives did not just write to the RCMP with their concerns, and request that the RCMP investigate, or that the Auditor General or others be asked to refer the matter to the RCMP and provide the information the response was, “The problem with that approach is that we are assuming that we are getting the full documentation from the Liberal government. We cannot assume that without bringing forward this motion. We cannot simply hand over allegations without concrete evidence and documentation from the Liberal Party, which is at the heart of this motion.”

The request for documents is not connected to a parliamentary proceeding or function.  The documents are not being requested or required for use by the House for any House proceeding nor for the House or its Committees to carry out any of their constitutional or parliamentary functions.  Without being in furtherance of a proceeding in Parliament, there is nothing to anchor the power to send for “papers”.  This use of the power to send for papers is not only beyond the scope of powers of the House, but any “compliance” is not covered by any privileges that attach to a proceeding in Parliament.

The power to send for papers or summons documents is not a stand-alone power.  It is a power that is exercised in aid of the House or a Committee that is carrying out one of its functions; i.e., the gathering of evidence for the House or Committee to either legislate or hold a hearing or conduct a proceeding of a parliamentary nature.  In this instance, there is no parliamentary proceeding or function to which the power to gather evidence is attached.  The power is being exercised to bolster a Conservative request for a police investigation, inferring that the evidence be considered by the police to determine whether further investigation, by the police – not the House- is warranted. Therefore, the exercise of the power is improper and beyond the scope of the House’s authority.  Using a legal, or in this case a parliamentary, process for a purpose for which it is not intended or permitted is by definition an abuse of power.

While there is no doubt the House of Commons has extraordinary powers to send for papers and persons, in effect to summons documents and compel witnesses and evidence, this power is not unlimited in scope.  The scope has been clearly and consistently stated by the courts, including the Supreme Court of Canada as being what is necessary for Parliament to carry out or discharge its functions.   These functions include “legislating” and “deliberating, including holding the government to account”.   Both the legislating and the “holding the government to account” functions are internal to the House of Commons.

It is not a function of Parliament, or the House of Commons, to assist the police in an investigation by acting as a conduit to gather evidence for the police.  The police have more than adequate powers and tools to obtain any evidence they require, and in a manner that meets all the requirements of the law and the constitution.   The police are agents of the Crown, and as such they are accountable to the House of Commons through the appropriate Minister.  They do not follow or take direction from Parliament.  There can be no doubt that the motion of the House (even with the amendment) could be seen as an attempt to direct or encourage the police to undertake an investigation.  By implicating itself in a police investigation, the House may not only be seen as interfering in the work of the police, but it is also potentially compromising Parliament’s accountability functions.

Since the exercise of the power is for a purpose beyond the scope of powers of the House, anything provided pursuant to the order is not covered by parliamentary privilege and is therefore subject to the ordinary application of the law.  For example, the Access to Information Act, and the Privacy Act will fully apply to those who provide protected information pursuant to the “order”.  While there are provisions in those Acts that protect disclosure pursuant to an order compelling production in a proceeding, this protection is premised on the order being lawful and within the jurisdiction of the body issuing the order.  As noted above this is not the case here.  The purpose behind the exemption is that the information will be used in a proceeding which relies on the order compelling the information.  That is also not the case here.  In the present instance, the information is intended to be used in a police investigation, not a parliamentary one.

The order of the House of Commons raises even more troubling constitutional questions.  Police investigations and the gathering of information by the police are subject to numerous legal and constitutional constraints.  The most consequential constraint is the Charter’s section 8 protection against unreasonable search and seizure.  No-one, including the government and government agencies, is required to provide any information to the police.  They enjoy the constitutional right to remain silent and not incriminate oneself unless compelled to produce the information to an investigating body or court. In the ordinary course, in order to compel production, the police are required to obtain a warrant, issued by the courts, based on a reasonable belief that a crime has been committed.   Such a warrant is at the request of the police and issued by the courts.  None of this process was followed in the present case.   Any argument that the documents are not being compelled by the police or the courts and are being voluntarily provided by the House is specious at best.  The documents in question can in no way be seen as being voluntarily provided by the rights holders, being the entities that originally control the documents.  As a result, a serious argument can be made that the documents are being presented to the police in manner that is contrary to section 8 of the Charter.  As a result, any use of this evidence by the police in an investigation, or the Crown prosecutors in a prosecution is likely to come under close constitutional scrutiny, and may potentially be excluded by the courts.

Although it is correct to state that the Charter does not apply to the exercise of a parliamentary privilege or power by the House, this reasoning cannot be relied on in the present circumstances.  First, the use of a power beyond its scope is not protected by privilege.  Second, there is no underlying proceeding to which the privilege attaches. Even if one could stretch an argument to cover the proceeding leading to the order directing the provision of documents to the Law Clerk, on behalf of the House, any privilege or protection of privilege is lost, or can be considered to be waived by the House, once the documents are provided to the RCMP. Another way to look at the matter is that there are two “proceedings” in parliament when documents are summoned and used.  The first proceeding is the one ordering the documents, the second is when the documents are used in a proceeding such as a debate or committee meeting.    In this case the, if there is a power to compel, privilege would only attach to the decision to compel.  The second “proceeding” is not a parliamentary one, it is a police investigation and potential criminal proceeding where the Charter fully applies.

The independence of Parliament from the executive, the courts, and by extension the police, is one that needs to be respected by all concerned.  The independence of Parliament allows the House to carry out its internal affairs and business without interference from the courts or the police.  Investigations and evidence gathering by the House of Commons are based on a different legal and constitutional platform than that of the courts, police and other agents of the state.  The rules of the House for the conduct of its proceedings and the gathering of evidence are within the scope of the lex parliamenti, which is wholly within the exclusive jurisdiction of each House to apply as it deems necessary for its own internal constitutional purposes. As the courts have found, the House of Commons is the sole judge of how the ordinary laws, including the application of the Charter, are to apply to its own proceedings.  In return, information gathered or compelled by the House of Commons for use in its own proceedings falls within the protection of parliamentary privilege and cannot be questioned or used by entities outside of the House, including for investigations. Under normal circumstances, where materials are compelled for use in a proceeding,  neither the courts nor the police can use the evidence gathered, because it is protected by privilege, whether the compulsion or gathering is otherwise contrary to the Charter does not arise.  At the same time, once a matter falls outside the scope of the exclusive jurisdiction of the House over its own proceedings, the ordinary law, including the Charter, applies with full force.  Parliamentarians must understand that where their jurisdiction ends, the jurisdiction of the courts, the executive and the police begins.  Although something may be protected by privilege when it is within the constitutional realm of the House and its proceedings, once a matter finds itself beyond the parliamentary pale it is subject to the ordinary laws.  This is the case, whether the result is by inadvertence, or by design.  In this case, the House, by sending the documents to the RCMP, has clearly and decidedly placed the matter and documents outside its jurisdiction.  Most worrying, is that the House has done so using a tool that is only available to it pursuant to the lex parliamenti, thus failing to respect its own independence.  In doing so, it may have invited the courts to consider the House’s abuse of powers that for centuries have been carefully guarded and honed so as to avoid such examination by the courts.

One can only hope that the materials have not yet been provided to the RCMP, or can be fully retrieved, intact and unread, and that the House reconsiders its position.  Otherwise, it will find itself in a constitutional quagmire of its own making.

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.

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:

1. Can the Crown, in its executive capacity, be held liable in damages for government officials and Ministers preparing and drafting a proposed Bill that was later enacted by Parliament, and subsequently declared invalid by a court pursuant to s. 52(1) of the Constitution Act, 1982?
2. Can the Crown, in its executive capacity, be held liable in damages for Parliament enacting a Bill into law, which legislation was later declared invalid by a court pursuant to s. 52(1) of the Constitution Act, 1982?

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.

___________________________________________________________

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.

There is a paradox to being Speaker of the House of Commons or a provincial legislative assembly in Canada.

Speakers of the House of Commons and provincial assemblies are elected from the membership of the assembly and therefore were elected in a constituency under a political banner, often that of the majority party in the House.  They are politically partisan immediately before their election as Speaker.  However once elevated to the position of Speaker take on the mantle of impartiality as well as the responsibility to ensure that the rights and privileges of all members and parties in the House are protected.  Not only are Speakers expected to ensure fairness in debate, but they are also responsible for allowing the House to hold the government to account and to protect the independence of the House from interference from all outsiders, including the government.   While government Ministers sit as members in the House, in their capacity as minister, they act outside of the House.   The tensions between the House and the government are able to be resolved based on the neutrality of the Speaker.  Neither favouring the government nor the opposition allows the Speaker the necessary independence to be a servant of the House.

At the same time, Speakers are required to seek re-election to the House at the next election.  And in Canada, they do so under the political banner of one of the political parties, in a fully contested partisan election.   Like all Members who will seek re-election, during a Parliament the Speaker as member and future candidate must be able to attend to the needs of their constituents with issues they might have with the government; must engage with their political constituency association, fund-raise for themselves (an by extension their party); be able to communicate with constituents on parliamentary matters;  and, engage with constituency stakeholders  who may be seeking assistance with government programs and ministers.  They must also seek and win the party’s nomination, and support and defend their party’s platform and record at the election.   Except for during the election period, these activities will take place while the person holds the position of politically neutral Speaker.

Over the last decade, there have been various times when there has been a collision, or near miss, at the intersection of these “requirements”.   One Speaker did not see the role of Speaker as a position to aspire to as the pinnacle of a parliamentary career, rather he saw it as a stepping stone to a post as minister, and leader of their political party.   Another Speaker acknowledged a constituent, on behalf of the House, for their community service, who unbeknownst to him was a former Nazi, and as a consequence was forced to resign.   A Speaker faced a vote of confidence for video well-wishes for a former party leader (at another level of government), while wearing his robes.  The same Speaker had a summer picnic in his constituency that was advertised on his political party’s website.  The invitation included criticisms of the opposition leader and his policies. The party later apologized, but this did not satisfy the opposition which brought a second question of confidence in the House.  In Saskatchewan, on the last day of a Legislature before a fall election, the Speaker lambasted the government house leader for continued pressure and criticism based on decisions made by the Speaker that allegedly favoured the opposition and allowed for criticism of the government.  The Premier responded to the criticism by stating that it was sour grapes because the Speaker had lost his nomination.  The Speaker had been a member of the party and held the seat for more than twenty years and had lost the nomination to a government backed candidate.

Except in the Saskatchewan case, none of the incidents occurred during a parliamentary proceeding, nor was there a direct connection to a proceeding.   Mose of the issues are about optics, politics and perception.   Almost all of the incidents noted were are related to the continued requirement that the Speaker remain invisibly tethered to their constituency and party and the need to win a subsequent election.

To date the resolution of these issues has been ad hoc.   Often the issue arises by way of a political debate with the opposition arguing that a line has been crossed, and the Speaker or those supporting the Speaker arguing that the line was not known, or that there was a misunderstanding of the situation at the time.  With the growth of social media, tribal (gotcha) politics, and as elections near, the momentary scoring of political points often trumps consideration of deeper issues.   Any potential misstep of the Speaker can be exaggerated if it can be tied to the government.  Whether the line has been crossed seems to be more of a political than a parliamentary calculus.

Placing the Speaker in a straight-jacket of absolute neutrality both inside and outside of the House hobbles the Speaker as a Member and weakens their chances at the next election.   The inability to participate in the necessary and expected activities of a constituency member, including policy discussions over policies they will need to defend in the next election, fundraising for their re-election, and nomination activities potentially hobbles their ability to be Speaker since they may leave the impression of partiality.  Limiting the Speaker from these same activities, particularly at the constituency level, which are the bread and butter of members of Parliament seeking re-election, puts the Speaker at an electoral disadvantage in their bid for re-election.  In addition, the more vocal and partisan a Speaker (as candidate) is during their re-election campaign, the more difficult it may be for them to be seen as being able to be neutral as Speaker in the following Parliament.

To date, the approach to any issue has been reactive and focused on the particular circumstances and concern raised.  For example, following the incident relating to the recognition of the former Nazi, the House of Commons put in place guidelines for vetting and recognition of guests.  In Saskatchewan, the Speaker waited until the last sitting day of a Legislature to expose attempts by the government to bully Speakers.  And there have been debates on these matters as questions of privilege and confidence in the Speaker, with the votes on the parliamentary question being considered the end of the matter.  But little attempt has been made to address the underlying problem the paradox presents.   It is time to have a serious pro-active examination of the roles and expectations of the Speaker in the House of Commons and provincial legislative assemblies, and their relationship to partisan electoral politics.

In some countries, when selected as Speaker, the member resigns from their political party.  They then run in the next election as an independent candidate unopposed (at least by the major parties).  Whether  this is seen as a “reward” for service, or with the expectation of favoured preference in the subsequent election as Speaker, it at least allows for a greater sense of neutrality in the Parliament they where elected Speaker  since they do not need to keep one eye on the House and the other on their re-election.  In other countries, there is the possibility of choosing a Speaker who in not a member of the Assembly, therefore they do not necessarily have the same political baggage.   Or it may be that after proper reflection, a set of rules and guidelines can be established to set out the roles of the Speaker within the House, and the expectation of Members, caucuses, and government officials so that the neutrality of the Speaker is not compromised.  Consideration may also need to be given to a cooling-off period between Speakership and future roles in government or leadership roles in the House.   At the same time, guidelines and expectations of a Speaker can be set out to guide them when engaging with their constituent association, their constituents through communications on parliamentary matters (householders at the federal level), constituent advocacy, nomination meetings, fundraising, and partisan activities during the election period.

Leaving matters to convention and common sense in a world of hyper partisanship, “relative truth”, social media and sound bites is not an option.   Clearer guidelines and understanding from all parties, preferably not in response to a current “crisis” of confidence, is required.  The role of Speaker is one that is important and integral to the functioning of all parties within Parliament and the institution of Parliament itself.  Protecting the Speakership from becoming mired in politics is imperative.  It is time to have a serious discussion about the kind of Speakership Canadians want and nee, in the twenty-first century.

 

 

The Ontario Court of Appeal, in the case of Alford v Canada (Attorney General) 2024 ONCA 306 recently confirmed the ability of Parliament to limit its privileges by legislation without necessitating a constitutional amendment.  The decision overturned a lower court ruling that found that since privileges were constitutional in nature, any changes required Parliament to go through the amending formula of the Constitution Act 1982 (2022 ONSC 2911 and blogpost https://lexparl.com/2022/06/ ).

Like many western democracies, Canada was faced with developing a mechanism for Parliament to hold government to account for all matters, including national security, and also protecting against potential disclosure of serious national security information that could harm the security of the country or its citizens.  The solution settled on was the creation of a National Security and Intelligence Committee of Parliamentarians.   The Committee was not a committee of either House nor a joint committee.   It was established outside of Parliament as a way for the government to share sensitive information with parliamentarians, and to allow for reports to be prepared by the committee, vetted for potential damaging information, then tabled in Parliament.  One aspect of the Act that created the committee provided that parliamentarians were sworn to secrecy and that if they divulged certain information received as a member of the committee they could be prosecuted.  This included divulging the information in Parliament.  In short, members could not use the protection of parliamentary privilege as a defence.  By way of the provision, Parliament had limited an aspect of its privilege of freedom of speech, in a targeted way (only divulgation of specific information relating to names, intelligence sources, and “special operational information” could result in direct prosecution).

Mr. Alford argued that the freedom of speech in Parliament was a fundamental constitutional principle underlying the entire Westminster system of government and that Parliament could only restrict its application through a formal constitutional amendment.  Although he was successful at the trial level, the Court of Appeal rejected his argument.

There were two bases for the Court of Appeal’s decision.  The first, and most succinct was that the Constitution Act, 1867 specifically allows for such legislated limits on privilege.  Section 18 of the Constitution Act, 1867 provides:

18 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.

The court found that, “[t]he language of s.18 plainly and unequivocally gives to Parliament the plenary and continuing legislative power to define parliamentary privileges, immunities and powers by way of duly enacted legislation…s.18 places no limit on how Parliament can “define” its privileges.” [para 43] The court went on to state that “s.18 applies to all parliamentary privileges” including those inherent in the role of Parliament, such as the fundamental principle of free speech.

The second, related reason articulated by the court was that one of the “fundamental organizing principles of the Canadian Constitution” is the independence of Parliament from the government and the courts.  Within this context it is “fundamental that Parliament control its own procedures”. [para 47]  Section 18 of the Constitution Act, 1867  is recognition of the independence of Parliament and its sole constitutional ability to determine how, when and if to limit or exercise its privileges.

While not necessary to its reasoning, the court addresses the particular circumstances facing Parliament.  The court writes:

“It is important to bear in mind that this is not a case in which the executive or a third party seeks to limit the scope of an asserted parliamentary privilege…Rather this is a situation in which Parliament has chosen, through legislation, to limit its own privileges, powers and immunities to enhance Parliament’s ability to oversee certain government activities.  Interpreting s.18 so as to permit legislation like [the sections at issue] is consistent with the fundamental principles underlying Canadian democracy.” [para 48]

In reaching this conclusion, the court was not unaware of the limited nature of the Act, and that in most aspects the ability of either House of Parliament to carry out their constitutional function of holding the government to account, even for national security, is not impaired to any extent.  As noted, the legislation restricting disclosure only applies to those Members and Senators that are on the Committee of Parliamentarians (as a government not parliamentary body).  And it only applies to very particular information, the making public of which would affect specific individuals, information gathering or ongoing operations.   There are no other restrictions.

It is first worth noting that the legislation in no way limits the Houses themselves.  Given the limited nature of the specific information that cannot be disclosed, there is little restriction on the overall capacity of the Houses to hold the government to account.  Most of the “policy” aspects of national security as well as how the government manages security matters (internal government operations, spending etc.) would still be fully open to the House to discuss and debate.  The Committee process allows for consideration of reports (potentially redacted in some respects), based on fuller facts but in a manner that avoids national security “leaks”.   While the Committee members are parliamentarians, the process is not that different from the preparation and consideration of an Auditor General’s report.  These outline problems and issues, and outline fact patterns with some example, but without granular details of individual transactions.

In any event, the legislation does not indicate that the use of the Committee of Parliamentarians is the only way that the government can be held to account by the House for national security, in any of its manifestations.  It in no way limits the Houses’ ability to establish its own committee(s) to make such inquiries, and to request any information they want.  The Act does not limit the scope of any such parliamentary inquiry, nor does it allow the government to withhold any information from such a committee.  [para 56] The court indicates that the House could make any order it believes necessary in such circumstances, and that any such order would not only be enforceable through parliamentary means (and sanctions) but that compliance with such orders would likely provide a defence to any government official making the disclosure since, in addition to privilege protecting the official, the provision of the information to Parliament would be “required by …law”. [para 23]

If the government were to abuse the process set out in the legislation and not provide the information that would allow the Committee to its required access to all information necessary for it to report to Parliament in a manner that allows the House to hold the government to account, Parliament remains able to get what it needs through its long established processes and procedures set out above.  And if the government continues to stall, it is always open to Parliament to repeal the legislation, thus exposing the government’s desire to avoid parliamentary scrutiny.

As the court concludes, the legislated limitation on free speech “stops short of anything approaching a constitutional renovation, or an embargo on parliamentary oversight of matters pertaining to national security.”

The House of Commons has been directed to conduct an extraordinary proceeding on Wednesday April 17.  Such a proceeding has not been used or contemplated in over a century.  A private individual, who has been found in contempt by the House for failing to answer questions before a parliamentary committee, will be called before the bar of the House to be admonished, and to be subject to questioning by MPs.  The basis for the finding and the process to be followed is found in the following motion of the House, adopted April 8.

[T] The Houe having considered the unanimous views of he Standing Committee on Government Operations and Estimates, expresses in its 17^th report, find Kristian Firth to be in contempt for his refusal to answer certain questions and for prevaricating in his answers to other questions and accordingly, order him to attend at the bar of the House, at the expiry of time provided for Oral Questions on Wednesday, April 17, 2024, for the purposes of :

• Receiving an admonishment delivered by the Speaker,
• Providing responses to the questions referred to in the 17^th
• Responding to supplementary questions arising from his responses to the questions referred to in the 17^th report

Provided that

• During Mr. Firth’s attendance at the bar for the purposes of responding to questions, which shall be asked by Members, with questions and answers being addressed through the Speaker,
  1. 10 minutes be allocated to each recognized party for the first and second rounds in the following order: Liberal Party, Conservative Party, Bloc Quebecois and New Democratic Party,
  2. During the third round, five minutes be allocated to each of the recognized parties with an additional five-minute period for the Green Party,
  3. Within each of the 10 or five-minute period of questioning, each party may allocate time to one or more of its members,
  4. In the case of questions and answers Mr. Firth’s answers shall approximately reflect the time taken by the question,
• At the expiry of time provided herein, and after Mr. Firth has bee excused from further attendance, the House shall resume consideration of the usual business of the House for a Wednesday,
• It be an instruction to the Standing Committee on Government Operations and Estimates to consider Mr. Firth’s testimony at the bar of the House and, if necessary, recommend further action.

This process, while the logical progression through the parliamentary process, raises numerous questions and challenges for a Westminster Parliament.

In this particular instance, a private citizen having dealings with the government, has refused to answer questions before a parliamentary committee investigating the processes whereby the individual’s company was awarded sizable government contracts.   The process was also the subject of a report of the Auditor General who has also sent their report to the RCMP for further investigation.  At the committee hearings, the individual refused to answer certain questions on the basis that he might be the target of the police investigation.  In short, he is claiming that his answers might incriminate him.   In a letter to the committee, Mr. Firth not only shares his concerns relating to the potential risk of a criminal investigation based on his answers but also raises concerns relating to the “lack of fairness” and the politicization of the process wherein his reputation is at risk.

As the proposed proceeding replicates the committee process, but with greater publicity and higher political stakes, the concerns raised remain unresolved.   While it can be argued that Mr. Firth could have avoided this raising of the stakes by answering the questions in the first place, and that the whole point of the escalation from committee to the House is one that is intended to pressure the witness by increasing the consequences, however, the underlying issues of the respect for the independence and separation of Parliament from the administration of justice, and the protection of otherwise protected rights of private individuals who participate in parliamentary proceedings.

There can be no argument that the House of Commons and its committees are entitled to all information they request.  Witnesses are required to provide all such requested information, and there are no specific legal or constitutional bases on which information can be withheld.  At the same time, all information provided to the House, and all witnesses who appear before the House are protected by parliamentary privilege.

However, the application of the protections of parliamentary privilege is not always easy or evident, particularly when it is applied to and by those outside of Parliament and the government.  It is not easily understood that information provided in a parliamentary proceeding, for use by the committee and the House, is not considered to have been publicly disclosed.   Evidence and information provided by witness to a committee becomes the property of Parliament not the public. It is not information that is publicly available in the legal sense.  At the same time, there is an expectation that the business of the House of Commons, particularly with respect to its function of holding the government to account, will be transparent and fulsome.  It is the role of the House to explore and expose government operations so that the public is able to carry out its function of judging the actions of the government and the opposition at the next elections.

The balance of interests between the House and the government, though partisan and adversarial, most often only involves those within the government providing information to the House.  However, there are many occasions when the work of the House requires assistance from individuals, such stakeholders and those seeking to inform the House of a particular viewpoint, or in order to bring matters to the attention of the House. At other times a committee may call witnesses to help them better understand the operations of the government.  In some cases, witnesses are reluctant to attend and need to be compelled.  However, in all cases the only constitutional purpose of the committee or House proceeding is to hold the government to account, and witnesses are there to assist (even if reluctantly) in these inquiries.   Since the role of the committee is to hold the government to account, not the private individual, there may be times when private interests of the individual, that are not the proper business of the House to inquire into ,  are put at risk and therefore steps are taken to limit the impact that the inquiry may have on those interests. In all cases, the greater the interest at stake the greater the care of the House to protect it ought to be.  The risk of criminal prosecution is one of the greatest.

There are three competing principles relating to the relationship between Parliament, individuals appearing as witnesses and those responsible for the administration of justice.   First, it is the role of Parliament to hold the government to account.  It is not the role of Parliament to hold individuals accountable since their actions are not governmental.  However, how the government interacts with individuals is subject to parliamentary accountability.

Second, the participation of any witness before a parliamentary committee is protected by parliamentary privilege.  This includes protection from information provided in a parliamentary proceeding being used in any proceeding outside of parliament, particularly criminal or civil proceedings.  Since such evidence is privileged, it cannot form the basis for, or be used as part of, an investigation that would have consequences for the witness.

This is related to the third principle. In all other instances where an individual is compelled to give testimony (i.e. in criminal, civil, or administrative proceedings) the individual has constitutional protections found in the Charter of Rights and Freedoms¸ and the common law, from having incriminating testimony used against them in any other proceeding.  Since the Charter does not apply to parliamentary proceedings as such, the protections of parliamentary privilege, which are also rooted in the Constitution¸ have the same force and effect the Charter protections.  It is this protection that allows Parliament to compel full answers without fear of them being put to further, or other, use.

It is therefore incumbent on the House of Commons to make it clear to the witness and to those who might be tempted to use information gleaned from parliamentary proceedings that the House of Commons will take all necessary steps, including going before a court on behalf of a witness, in order to protect its privileges and the testimony of witnesses from any use by authorities outside of Parliament.  This includes protecting the information from use by the police for investigatory purposes.  If the House is not prepared take such steps, then the witness has no protection.  Instead of protecting the rights of citizens, it would be exposing them to a risk that would not occur in any other circumstances.

The House of Commons should not allow itself to become an investigative body in aid of the police, who are a direct agent of the Crown.   The police and the Crown exercise state powers that are properly constrained by the Constitution.  As part of the “Crown” police and crown attorneys are accountable to Parliament through the appropriate ministerial accountability frameworks for such state actors.   This accountability requires the separation and independence of the House from the police and their investigations.

In addition, a degree of sensitivity by Parliament is required so as not to put any current or future investigations at risk by placing the police in a constitutionally untenable position.  In a case where information from a proceeding in Parliament is used in a manner that jeopardizes a person, the police will have violated the privileges of Parliament.  Since parliamentary privileges are constitutional in nature, the use of such evidence is unconstitutional and could taint any related investigation and subsequent prosecution.

That the House ought to proceed with a degree of caution in order to protect the rights of individuals in the context of legal risk is not an unknown concept.  For example, the House respects the convention of sub judice whereby the House will avoid directly discussing matters that are before the courts so as to ensure that the interests of the parties before the courts are not influenced by proceedings in Parliament, including perceived political and public pressure.  The underlying rationale is that each branch of the state must be free to operate without interference from or confusion with the others.   In cases of police investigations and the potential risks that flow both from the application of privilege outlined above, and when an individual would have rights in all other compelled testimony environments, the House might want to consider how to exercise similar restraint.

From a purely legal and constitutional perspective the House of Commons is not compelled or constrained to follow any particular procedure, or to strictly adhere to any legal or constitutional norms or limits, other than the limits of its constitutional functions.  Its powers are broad and not subject to judicial review or scrutiny.  At the same time, the House and its committees do not carry out their functions in a vacuum. There is an expectation that they will act fairly and in a manner that does not place any individual unnecessarily at risk.  To the extent possible they should strive to proceed in a manner that respects the law, particularly constitutional rights, to the fullest extent possible, albeit in a parliamentary context.  In essence, the House and its committees ought to adopt practices and procedures that allow them to carry out all of its functions, including obtaining all the information required to hold the government to account, while at the same time respecting the principles that underlie the statutory and constitutional protections of compelled information.

There are numerous instances where the House of Commons and its committees have sought information from the government that is protected from public disclosure (or for which disclosure would be an offence), including national defence (Afgan detainees intelligence), international intelligence (Winnipeg lab classified research) and information protected by the Privacy Act and the Access to Information Act. There have also been instances where the disclosure of information could cause harm to individuals (working conditions at foreign mines owned by Canadian companies) or risks to business interests and practices (meat packers and abattoirs during mad-cow disease and beef pricing discrepancies).  In all of these cases the House and its committees were able to put in place processes that allowed the committee and House to obtain full information (or at least the information required to complete their work) and carry out their constitutional functions.  Information held by a witness that, if divulged, might incriminate them is similarly protected by law and the constitution.  Requiring a witness to divulge such information, without adequate protection puts them equally at risk of prosecution, a steps to mitigate the risks should equally be put in place.

While each situation may require a bespoke solution, the House and its committees have various ways to respect the rights and interests at stake.  These solutions are not exhaustive.  A situation may require a combination of tools, or the development of a new approach or procedure.  Some possible solutions may include: requests for information in writing, whereby the committee can consider appropriate redactions before responses are placed in the publicly accessible parliamentary materials;  hearing witnesses in camera with the committee then deciding how to consider the evidence and how to report its findings in a manner that protects the rights or interests;  or, the committee, in combination with these protective proceedings can report in a manner that protects the information or witness’s interests;  committee can report in such a so as to avoid names or other identifiers by giving individuals numbers or other signifiers;  and the report can make it publicly clear and explicit that the information contained in the report is protected by parliamentary privilege and cannot form the basis for any administrative, criminal or civil liability.

Although the matter, is at present before the full House of Commons most of the required accommodations and solutions fit best within the committee environment.  Committees are better equipped to seek particular answers and to deal with any competing individual rights that might arise.  It is doubtful that there is a meaningful way for the House itself to reconcile the rights at issue.  Unless the House is fully convinced that the committee has taken all steps to reconcile these interests and that the individual, despite being offered the necessary accommodation or explanation is still recalcitrant, the motion should be reconsidered and the matter sent back to the committee on the understanding that a way to seek the information be worked out, and that failing that the House will take up the matter.  The Speaker, when faced with similar arguments made by the government for not providing evidence based on legal or constitutional reasons for not providing information (Afghan detainees, and Winnipeg labs), requiring the documents to be provided while at the same time encouraging the House to find a workable accommodation process to obtain the information while respecting the underlying principles in the law which protected the information from public disclosure.   Invariably an accommodation was found, involving bespoke committee procedures.

It is not too late for the House to reconsider whether such a direction should be provided to the committee, before the House intervenes in a manner that may not be able to protect the witness. If the witness continues to refuse an accommodation by the committee, or to provide information within the accommodation, the House would still have the ability to proceed as set out in the motion in order to assist the committee.   If, however, the House chooses to go forward with the process set out in the motion without referral back to the committee, the Speaker, who is the guardian of the privileges of the House of Commons, should consider making a statement that the witness enjoys the full protection of the privileges of the House of Commons and that the use of their evidence for any investigation or subsequent prosecution of the witness would be a breach the privileges of the House.

We live in an era when governing and accountability are more complex. There is a greater integration of public and private activities.  Governments intent on fiscal savings and flexibility look to contracting for the provision of services and programs.  The public demands more of government both in programs and in curbing and regulating business. In addition, there is a greater focus on rights (both constitutional and legal) and a expectation of fairness.   And there is a growing use of social media and expansion of the dissemination of and commenting on information that often seems to result in conflicting rights.  This combination of factors has led to a greater need for committees and the House to engage with private individuals and businesses.  To better understand how government operates, and for parliament to better be able to hold government to account for its operations, there is greater reliance on non-governmental witnesses who primarily operate and carry out their lives and business in the private sector where the rights, processes and responsibilities are different.  Whereas the House, when historically holding the government to account, might not have had to focus on the rights and interests of witnesses beyond their governmental responsibilities, they must now do so.  Processes and perspectives designed since the 17^th century, focussed almost solely on the government, that functioned effectively into the mid 20^th century, need to be adapted.  Parliamentarians now need to account for the fact that many of the witnesses called before a committee have individual rights, protected by law and the constitution, that might be affected by the processes of the House.  While the House must retain the right to all information required to carry out its functions, it has a responsibility to do so in a manner that infringes the rights enjoyed and expected by individuals by virtue of the law and the constitution to the fullest extent possible.

Whether the House chooses to do so on a bespoke basis or on a more general process design basis is for the House to decide.

Although the courts have been tolerant and deferential to the House whenever attempts have been made to have the courts consider matters occurring in proceedings, there is no guarantee that they will not use their authority to examine and define the scope of the powers and privileges if the House fails to protect the rights of individuals.

As the Supreme Court in Vaid v (Canada)  House of Commons)  reminds all concerned

 “There are few issues as important to our constitutional equilibrium as the relationship between the legislature and the other branches of the State on which the Constitution has conferred powers, namely the executive and the courts.  The resolution of this issue is especially important when the action of the Speaker sought to be immunized from outside scrutiny is directed against a stranger to the House (i.e., not a Member or official) who is remote from the legislative functions that parliamentary privilege was originally designed to protect.”

And

“ It should be emphasized that a finding that a particular area of parliamentary activity is covered by privilege has very significant legal consequences for non-members who claim to be injured by parliamentary conduct, including those whose reputations may suffer because of references to them in parliamentary debate, for whom the ordinary law will provide no remedy.”

It therefore up to the House to take responsibility to properly balance the rights and interests at stake.  The present circumstances facing the House provide the perfect opportunity to do so.

https://www.nytimes.com/2023/09/30/world/canada/canada-parliament-speaker-vote.html?unlocked_article_code=1Ss3iGte6u1-2Izvr4e7_jg2hCaPUYCN1gTyz44kPbBfBbEl8XlaoZy0pzP7vQM2JXGrF4LETlVIfXYMD-ykX0CxJdqrWrNxh3MrhqEOoK4SOtQMgYTCdHoEXa4sbaONiW5dQlnEKXHuCeP0eWGC-NQPFBf3rjZeZVGwkrtnrxEzdc8YckHVORVzOIT38GEdOiGNjUuRJ7B6ZycXvuu7gHcco3TmLX7sVxoHTjUZ8PrEzG3wbYMO7yJ52wPiBqksrDwFgcog_ZYSSJybMGhNRPFg4R7YUuUZh46tA8XF25pZdshg1qqVmHhDKKBmbq6xg0D6xZ9maOVesiq-Cc7uGy2EtUbqjBl5URio8rE&smid=url-share