Author: Douglas A. Alderson, MA, LLM (Yale)
At a recent press conference in June of 2024, Chief justice Richard Wagner of Canada’s Supreme Court expressed his concern for the “harm caused when court decisions are reported inaccurately, or out of context, for reasons of “sensationalism.” The Chief Justice also expressed concern for criticisms that “undermine public confidence in the justice system.” Somewhat arrogantly, Wagner expressed the view that a “judiciary that is independent and impartial — and perceived as such — is the pillar of our democracy.”
With respect, the Chief Justice has missed the mark. An “independent and impartial judiciary” is not “the pillar of our democracy”. “Democracy” is merely the method by which governments are chosen by a majority of voters. It is more accurate to say that an independent and impartial judiciary is one of the pillars of our Constitutional Monarchy. Other pillars include: Responsible Government; and Parliamentary Supremacy. The more familiar way of saying this is that there are three branches of government: Legislative; Executive; and Judicial. Each branch is separate and “sovereign” in its own sphere and tasked with a different objective. In theory, no one branch is supreme, as they are meant to balance power against each other.
Attorney General (Canada) v. Power
The foregoing description of Canada’s constitutional order was once taught AND understood by most Canadians as part of their basic Civics education in school. Unfortunately, today that is no longer the case. Basic ignorance of our essential constitutional structure is evident not only in the remarks of the Chief Justice of Canada, but also in the recent decision of the Supreme Court in Canada (Attorney General) v. Power released on 19 July 2024. In Power, five of the justices completely forgot anything they may have once known about separation of powers and held that the Crown—the executive branch, could be liable in damages for acts committed by Parliament—the legislative branch.
The Supreme Court’s ruling in Power completely ignores the separation of powers between executive, legislative, and judicial branches. The analysis in the Court’s opinion is seriously flawed from the outset by conflating the executive and legislative branches and treating them as one. This is a gross misunderstanding of the differences between the Executive and Parliament and would get an F minus on any Civics test!
The court was asked two related questions:
- Can the Crown, in its executive capacity, be held liable in damages for government officials and Ministers preparing and drafting a proposed Bill that was later enacted by Parliament, and subsequently declared invalid by a court pursuant to s. 52(1) of the Constitution Act, 1982?
- Can the Crown, in its executive capacity, be held liable in damages for Parliament enacting a Bill into law, which legislation was later declared invalid by a court pursuant to s. 52(1) of the Constitution Act, 1982?
To these questions, five justices, (Wagner C.J. and Karakatsanis J. with Martin, O’Bonsawin and Moreau JJ. concurring) answered “yes” to both; two justices, (Jamal J. with Kasirer J. concurring) answered “No” to Question 1, but “Yes” to Questions 2; and two justices, (Rowe J. with Côté J. concurring) answered “No” to both.
These questions are confusing, especially in the majority opinion. Both questions are framed in relation to the Crown’s “executive capacity”, but what does “executive capacity” mean? Does it mean the Executive Branch of government? Does it mean the Executive as it acts in Parliament, i.e., in introducing legislation, but isn’t that the Crown’s “legislative capacity”? The Crown only has a legislative capacity in Parliament, not an executive capacity because Parliament is separate from the executive branch. Most importantly, unlike the “executive capacity”, Parliament cannot be sued, so it would seem that by using the term “executive capacity” the question is being framed in such a way as to avoid this aspect of Parliamentary Supremacy.
In other words, “executive capacity” means the state or government, it does not mean Parliament. This distinction is clearly understood in the vigorous and learned dissent of Justice Rowe, concurred in by Justice Côté as well in the dissenting opinion of Justice Jamal, concurred in by Justice Kasirer, at least with respect to Question 1.
A Need for Nuance Sorely Needed
It has only taken five judges of the Supreme Court to have completely altered the constitutional structure and balance of Canada by ignoring the separation of powers within Canada’s Constitution. By ignoring Parliamentary Privilege and it’s established categories of freedom of speech and control over parliamentary proceedings, the Court is not only infringing upon the legislative branch, but it is also disregarding the limits of its own constitutional role, and, in so doing, has further eroded the public’s trust and confidence in the justice system.
Canada’s Constitution is made up of a number of parts, the Charter being only one part. As Justice Rowe observed:
It is critical to be clear that the Charter did not negate the “fundamental constitutional tenets upon which British parliamentary democracy rested” (New Brunswick Broadcasting v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319 at p. 377) and did not displace parliamentary privilege…
Arrangements that were in place at the time of Confederation and that were not modified by constitutional documents remain largely in place and operative. The passage of the Charter must be understood within the broader context of Canada’s constitutional development; the Charter did not take aim at or displace the majority of the unwritten elements that comprise Canada’s Constitution, including parliamentary privilege. Instead, as this Court has previously established, the Charter must be read in a way that is compatible with other elements of Canada’s Constitution, including parliamentary privilege. [para. 320 – 321]
In the rush to increase judicial power in the guise of somehow making the Crown liable for its errors, the majority of the Court ignores these distinctions. In doing so, the Court has ignored its own previous decisions and has fashioned a new civil wrong or tort: breach of Charter Rights. Prior cases involving allegation of Charter breaches and monetary damage claims under s. 24(1) have involved actions of government actors that were associated with negligence and the failure to meet a duty of care. The Power case has no underlying negligence/duty of care aspect, but rather rests on the violation of s.11(h) (protection against double jeopardy) and s.11(i) (right to lesser punishment) of the Charter due to the prohibition against retrospective application of criminal law brought about simply by an act of Parliament.
Implications of Power
Decisions like Power, which show an appalling lack of basic respect for Canada’s constitutional structure, do more to “undermine public confidence in the justice system” than any criticism of the Court that seems to worry the Chief Justice. Once trust of, and confidence in, the justice system has been lost it is going to take more than heraldry symbols, a flag, or press conferences by the Chief Justice to win back the public’s trust and confidence.
Loss of public trust and confidence, however, is not the only implication of the Power decision. Perhaps more alarming is the expanded scope of judicial review that the Supreme Court has given itself and its fellow jurists. Parliament is no longer solely answerable to the people, but now must justify and defend its actions to judges in clear violation of the constitutional principle of equal co-branches of government.
The Power decision signals an expansion of judicial power: it is no longer simply a matter of judicial review and striking down legislation courts find violating the Charter, the Supreme Court has now extended that review power to include control over the public fisc, i.e., the Treasury. Litigating damages as a remedy for Charter violations, absent an underlying tort/negligence claim, will not be confined to an individual plaintiff but will involve class action lawsuits where millions, if not billions, of dollars will be sought as compensation. This is not mere speculation but is already happening in the context of tort/Charter claims: see, for example, Francis v. Ontario, (2021), 154 OR (3d) 498 (C.A.).
Litigating damage claims post-Power will not be easy. How does one “prove” that the law in question was known to be clearly unconstitutional, or made in bad faith or an abuse of power? Documents sought by plaintiffs on discovery will be such as to attract claims of privilege, leading to more litigation to resolve those issues. Crown privilege over such documents raise many questions which will take time, money and judicial resources to sort out.
Of course, the uncertainty which naturally accompanies these questions, and the prospects of economic incentives occasioned by class-action litigation will keep many a trial lawyer eagerly engaged in the pursuit for justice. Such pursuits, however, come with political, economic and resource consequences. The justice system is already sorely underfunded and understaffed causing delays giving our 21st Century justice system all the efficiency of the courts in Dicken’s Bleak House. Moreover, as courts become further involved in the legislative process, the greater the danger becomes that both Parliament and the courts lose their independence to the detriment of the constitutional order and Responsible Government.
Solutions to Power
The whole decision in Power turns on the question of s. 24(1) of the Charter:
24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. [Emphasis added.]
Notwithstanding the majority’s view in Power, as Justice Rowe’s dissent makes abundantly clear, it is neither appropriate nor just in the circumstances for the court to unilaterally amend Canada’s Constitution.
Of course, we have not arrived at the Power ratio decidendi overnight—it has been a long and gradual judicial trek to arrive at a newly minted tort of breach of constitutional right. The Supreme Court held in Schachter v. Canada, [1992] 2 SCR 679 at 720, that
An individual remedy under s. 24(1) of the Charter will rarely be available in conjunction with an action under s. 52 of the Constitution Act, 1982. Ordinarily, where a provision is declared unconstitutional and immediately struck down pursuant to s. 52, that will be the end of the matter. No retroactive s. 24 remedy will be available. [Emphasis added]
Ten years later, in Mackin v. New Brunswick (Minister of Finance), [2002] 1 SCR 405 at para. 81, the Supreme Court affirmed this principle, stating:
In short, although it cannot be asserted that damages may never be obtained following a declaration of unconstitutionality, it is true that, as a rule, an action for damages brought under s. 24(1) of the Charter cannot be combined with an action for a declaration of invalidity based on s. 52 of the Constitution Act, 1982. [Emphasis added.]
Another ten years goes by, and the Supreme Court decides in Ward v. Vancouver (City), [2010] 2 SCR 28, a case dealing with actions of police, that the
language of s. 24(1) of the Charter is broad enough to include the remedy of constitutional damages for breach of a claimant’s Charter rights if such remedy is found to be appropriate and just in the circumstances of a particular case.
Now, a mere twelve years later, the Court in Power has abandoned any pretext of judicial restraint and has opted for allowing damages not only for breaches of the Charter occasioned by individual agents of the state, but also against Parliament itself for enacting the Charter-violating law in the first place!
To address the constitutional imbalance that at least five justices of the Supreme Court have caused, a number of responses are possible.
i. Section 33
Section 33(1) of the Charter, the “Notwithstanding Clause” certainly affords one potential response. Section 33 states:
(1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15.
While s. 33 does not directly suspend the Charter’s remedy section (s.24(1)), its application does make the question of remedies moot, as s. 33 operates to preclude the application of the Charter to legislation. In other words, legislation to which s. 33 applies cannot violate the Charter and therefore cannot give rise to damages as a result of a Charter violation. However, this may change in light of the litigation in Saskatchewan (Minister of Education) v. UR Pride Centre for Sexuality and Gender Diversity currently working its way through the court system.
Section 33 as a solution suffers from three inherent problems: (1) it is far from certain that Courts would respect the demarcation imposed by s. 33 on the award of damages. After all, lawyers are paid to find “ways around the law”; (2) the use of s. 33 under these circumstances is arguably akin to using a cannon to swat a fly as one does not want to preclude legitimate Charter scrutiny of legislation. Indeed, such indiscriminate use of s. 33 would receive little or no public support as most Canadians really don’t care about Parliamentary Privilege and Separation of Powers (although they should) but would be seriously upset at the prospects of losing constitutionally “guaranteed” fundamental rights and freedoms; and (3) most importantly, s. 33 applies only to ss. 2 and 7 to 15 of the Charter and not to s. 24(1) the remedies section—as a result, the use of s.33 rather misses the point, which is to restore constitutional balance and the proper separation of powers.
ii. Crown Liability and Proceedings Act
A second option to consider entails amending s. 3 of the federal Crown Liability and Proceedings Act (as well as provincial counterparts), to state that the Crown is not liable for damages with respect to government officials and Ministers preparing and drafting proposed legislation or for Parliament enacting legislation into law. This solution is not without its difficulties as some might object that such an amendment amounts to Parliament unilaterally amending the s. 24(1) of the Charter. The answer to that is to point to the wording of s. 24(1) which provides for a “remedy as the court considers appropriate and just in the circumstances.” The use of such broad language is problematic and is another example of the framers of the Charter relying too heavily on a restrained judiciary. Section 24(1) says nothing about “damages.” Moreover, “remedy” is not a defined term in the Charter. Limiting Parliamentary liability for damages for breach of a Charter right due to the enactment of legislation is merely defining what “remedies” may be available for a court to consider. Absent tortuous or negligent conduct on the part of state actors, the appropriate remedy against Parliament is the law being declared unconstitutional.
iii. Constitutional Amendment
The decision in Power affecting Crown liability is not restricted to the federal Parliament but is also binding on all provincial legislative assemblies. In Power all ten provinces intervened and, in a rare show of unanimity, took positions opposed to the opinion that was eventually expressed by the Court’s majority. It is not hard to imagine that it would be possible to get at least seven provinces with 50% of the population to agree on a constitutional amendment to protect Parliamentary/Legislative Assembly Privilege.
Alternatively, and perhaps the best solution, is to use the unilateral power of amendment given Parliament and the provincial legislative assemblies under ss. 44 and 45 respectively. These sections provide:
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- Subject to sections 41 and 42, Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons.
- Subject to section 41, the legislature of each province may exclusively make laws amending the constitution of the province.
There is no doubt that each legislature has the competence to unilaterally amend the Constitution in matters relating to these institutions. One would be hard pressed to find a matter more essential to Parliament than Parliamentary Privilege and its constitutional independence. Protecting Parliament and the legislative process ensures that accountability remains a question to be addressed at the ballot box and not the jury box.
No matter which amendment process is used, it will require political leadership and political will to enact the required amendments. It remains to be seen whether Canada’s provincial and federal governments have sufficient leadership, let alone the political will, to do what is necessary to protect Canada’s Constitution from unwarranted judicial encroachment.
Conclusion
Ever since the Charter came into force in 1982, the courts have been slowly but progressively enlarging their power and jurisdiction under the guise of upholding the Charter. In doing so, they have gone from striking down laws that, in their opinion, violate the Charter; to rewriting laws to be consistent with their view of what the Charter requires; to requiring laws to be written that reflect their view of what the Charter requires. For the most part, Parliament and the provincial legislative assemblies have gone along with these decisions, largely because they reflect the progressive views of the politicians themselves who have long ago given up on the traditional values most Canadians still believe in—at least until recently. It is high time that Canada’s constitutional structure was brought back into balance, restoring not only the proper relationship between the courts and the legislature, but also Responsible Government based upon the consent of the governed and not the mere opinion of five unelected judges.
Of the three options discussed above, constitutional amendment via ss. 44 and 45 appear to be the simplest and most elegant way to redress the gross imbalance cause by the Power decision.
One thing most Canadians can agree on is the need to hold government—politicians, judges, bureaucrats, and government agents—accountable. Indeed, government liability in tort, as well as the Charter and the right to sue the government are important aspects of accountability. Canada requires, and Canadians deserve, an independent Parliament just as much as an independent judiciary. It is time Parliament acts to ensure both.