Double Aspect

I am late to the party, but since the Supreme Court’s recent decision in Canada (Attorney General) v Power, 2024 SCC 26 has attracted a great deal of commentary and much handwringing, I think I had better address it too. By 7-2, the Court holds that, in some circumstances, an award of damages will be available as a remedy for legislative violations of the Canadian Charter of Rights and Freedoms, though the five-judge majority (the Chief Justice and Justice Karakatsanis, with the agreement of Justices Martin, O’Bonsawin, and Moreau) takes a broader view of when this will be the case than the concurrence (Justice Jamal, with the agreement of Justice Kasirer). The sharply-worded dissent (Justice Rowe with the agreement of Justice Côté) would have rejected the availability of damages in all cases.

There is a lot going on these opinions, each of which runs for 120 paragraphs or more. I’m not convinced that any one is quite right, though Justice Jamal’s is rather closer to the mark than the either the majority’s or Justice Rowe’s. As a result, there is a lot for me to say, and it will take more than one post. Here, I will explain the factual background to the case and its methodological issues. In the second post, I will deal arguments against the availability of Charter damages based on governance considerations. And in the third, I will turn to questions about Parliamentary privilege.

Let us begin with the factual background of the decision. None of the opinions says much about it, because it isn’t really relevant to the legal questions. But it is worth pausing on. Mr. Power “was convicted of two indictable offences of sexual assault in 1996 and sentenced to two eight-month terms of incarceration to be served concurrently. He served his sentence and was released from custody in 1996.” [130] He then studied to be and got a job as a medical radiation technologist. Fifteen seemingly trouble-free years later, “his employer received a tip that he had a criminal record and suspended him from his employment. He searched for a new job but found that his criminal record prevented him from working in his field.” [10]

And in the meantime, Parliament enacted legislation that prevented Mr. Power from ever obtaining (what used to be called) a pardon and thus expunging the criminal record. This legislation applied retroactively, to people who had committed their crimes before its enactment. That, several courts have said, made it unconstitutional. But for Mr. Power, that wasn’t enough: he also sought compensation. I assume this is for things like lost wages, though neither the Supreme Court nor the trial court explain this. The constitutional question whether he could do that is thorny.

But it is also so painfully unnecessary. I don’t mean to make light of Mr. Power’s crimes, but are they worth preventing him from ever working again? Do the crime, do the time is right and just. So he did. Do the crime, get your life screwed over is seldom wise or moral. (Seldom, not never: see my post criticizing the Supreme Court’s decision striking down the stacked parole non-eligibility terms for multiple murderers.) For an offense that was worth less than a year’s imprisonment, it seems wildly disproportionate (and still would even if we assume, on no particular evidence, that the sentence was much too light!). But it’s also just stupid. Who, exactly, benefits from a competent medical professional being run out of his job? As is often the case, very few people come out of this litigation looking good: not the anonymous tipster who ratted out Mr. Power; nor his former employer; certainly not Parliament. And, for good measure, not most of the Supreme Court, but frankly, they’re the least culpable people here: to the extent they have screwed up, they screwed up a difficult legal question, not an easy moral one.

Anyway, on to the legal issues. Or issue. How many there are is one point of contention between the three opinions. The government initially framed the case as presenting two separate questions: whether the Crown can be “liable in damages” for: (1) “government officials and Ministers preparing and drafting a proposed Bill that was later enacted by Parliament, and subsequently declared invalid by a court”; and (2) “Parliament enacting a Bill into law, which legislation was later declared invalid by a court”. [14] The majority says the two questions are really the same: “whether the state may be liable for Charter damages for the enactment of invalid legislation”. [22]

Both Justice Jamal and Justice Rowe disagree. As I will further explain in the third post in this series, they see the issue of ministerial and official input into and preparation of bills as raising distinctive issues having to do with Parliamentary privilege. For the Justice Jamal, that justifies different answers to the two questions; for Justice Rowe, the first question effectively swallows the second.

I think that Justice Jamal is right here, for reasons I’ll explain in the third post. But it’s worth noting that the majority at least recognizes that “Mr. Power’s claim focuses squarely on Parliament’s enactment of the unconstitutional legislation” [22] rather than on any preparatory steps. I think that, given the 5-4 split on this point and this concession, as well as other concerns on which more in the future, there may be room for, ahem, clarification in future cases.

How is the Court to resolve the issue, or issues? The majority, to its credit, starts out with the relevant constitutional provisions, namely ss. 32 and 24 of the Charter. The former provides, in relevant part, that the “Charter applies … to the Parliament and government of Canada in respect of all matters within the authority of Parliament”. The latter, that “[a]nyone whose rights or freedoms, as guaranteed by [the] 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”. In principle, then, Parliament is subject to Charter scrutiny, and the remedial provisions are broad; but while the majority appeals to the principles of “Charter interpretation” [25] in making these points, these are merely the usual bromides about reading the Charter generously and purposively.

For the majority, the case really turns on what originalists call constitutional construction, not interpretation ― the development of doctrines to flesh out an underdeterminate constitutional text. Here, the majority says that the case is to be resolved by balancing relevant constitutional principles so as to narrow down the seemingly very broad terms of s. 24. As it explains:

Our constitutional jurisprudence has not created hierarchies of constitutional principles. It has aimed to provide flexibility and accommodation in the pursuit of good governance and fundamental rights. This is especially important in an era of increased transparency and accountability. Our constitutional remedies must reflect the interdependency of principles, and balance the need for both government autonomy and accountability. [79]

Justices Jamal and Rowe take a somewhat different approach. As I have already alluded to, they focus more clearly on the rules of Parliamentary privilege, and less on general principles.

For my part, I agree that the Charter‘s text isn’t enough to resolve the case ― because the text itself tells us so. Section 24 directs the courts to figure out what is not only “just” but also “appropriate”. It’s right for the courts to interpret this as making room for longstanding public law principles to constrain their remedial discretion. That said, even with broad provisions requiring the courts to engage in construction, one shouldn’t forget that the text is, after all, still there. I think the majority may be guilty of some of that when warns that an absolute immunity from Charter damages “leaves little room for the principles that underpin legislative accountability — including the broad and purposive approach to rights and remedial provisions in the Charter, as well as constitutionalism and the rule of law”. [93] There is simply no need to appeal to these abstractions when s. 24 is there.

But what Justice Rowe is doing is worse. Tellingly, he does not discuss section 24 at all. Instead, he effectively stipulates that, akin to the old rule that statutes in derogation of the common law are to be read narrowly, the Charter must be read so as to preserve pre-existing constitutional arrangements:

the year 1982 in Canada was not like the year 1789 in France: the passage of the Charter did not mark a “clean break” with existing constitutional structures that came before the passage of the Constitution Act, 1982. … 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. [321]

Yet to make constitutional continuity the starting point rather than the conclusion of a process of interpretation and construction ― a presumption, and seemingly one rebuttable with great difficulty if at all ―, is to engage in what I have repeatedly denounced here as “constitutionalism from Plato’s cave”, where the courts have a privileged access to the true constitution of which the one actually enacted in 1867 and in 1982 is but an uncertain shadow. If the old constitutional arrangements had been enough, there would have been no Charter. Justice Rowe’s opinion is no less wrong in principle than Justice Abella’s erstwhile “constitutional benedictions”. The latter were a refusal to accept that things that aren’t in the constitution aren’t there. The former is a refusal to accept that things that are in the constitution are there. Incidentally, Justice Rowe is also wrong about “the year 1789 in France”: the first revolutionary constitution only came into force in 1791, and the monarchy lasted until 1792, which was was also the beginning of the revolutionary calendar. This doesn’t really matter, but if one is going to wax eloquent and appeal to history, one should try to get the history right.

By my lights, Justice Rowe’s Burkean fervour is quite misdirected. He fulminates against what he sees as “a revolution in the nature and extent of demands by litigants for courts to use their authority to advance goals that those litigants had not achieved through the electoral process”. [325] This echoes Lord Reed’s sneers in R (SC) v Secretary of State for Work and Pensions,[2021] UKSC 26, [2022] AC 223, which Justice Rowe quotes elsewhere in his reasons (and about which I blogge here), about

But this stuff is quite uncalled for. The Charter (like the Human Rights Act 1998 in the UK) exists, and it warrants litigation to achieve goals that were not and could not be achieved through the electoral process. That’s why it’s there.

And, again, consider the facts of this case, which illustrate why that is good. The applicant is a former criminal. But, however bad a man he once was, he has now himself been done an injustice, as the government concedes. He would like to be compensated for it, as anyone who has been done an injustice would. Yet given who he is, the odds that this cause will attract the sympathy of the public, let alone the priority needed to secure the passage of remedial legislation, strike me as abysmally low. To say that Mr. Power should have gone through the political process is unrealistic at best, and more likely haughty and unserious if not outright contemptuous. When Justice Rowe harangues Mr. Power, claiming that his (lawyers’) “submissions display a disdain for Canada’s constitutional structure”, [349; emphasis mine] he is the one being disdainful. It’s fine to say that the law is against Mr. Power. No one is not entitled to succeed just because he has been wronged ― the law doesn’t work that way. But I don’t think that Mr. Power is doing something unfair by advancing an adventurous legal argument ― let alone an argument some version of which has been accepted by 11 of the 13 judges who have heard the case.

I agree with Justice Rowe to this extent: in a better world, this is a case would never have happened. But the fault for it happening does not lie with Mr. Power. It lies with the people who wronged him, including Parliament, and ultimately the voters. Yet, to repeat, that does not mean Mr. Power was entitled to win. It takes an argument to show that he was ― or that he was not. That argument could not be reduced to the interpretation of the open-ended terms of the Charter. But it had to start with them, and it had, at the very least, to take their existence into consideration, instead of wishing them away and stipulating that they couldn’t make a difference. As will be apparent from the next posts, I don’t think that any of the judgments is flawless; but Justice Rowe’s is flawed from the outset, flawed in its basic conception. That is too bad.