Double Aspect

This is the second post in my series on Canada (Attorney General) v Power, 2024 SCC 26, where the Supreme Court has held 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. I previously addressed the facts and methodological issues in the case. In this post, I turn to governance concerns. In particular, Justice Rowe warns of the consequences of allowing people whose rights are infringed by legislation to claim damages as a result. First, though, I can quickly deal with some other arguments for an absolute immunity against Charter damages for the enactment of legislation, because these strike me as quite obviously weak, and the majority’s rejection of them as correct.

One such argument is that declarations of invalidity are a sufficient alternative to damages awards. I think this will sometimes be true, and will say more on this below. But the facts of this case suggest that this will not always be the case. The invalidity of the legislation that caused Mr. Power to be ineligible for a pardon does not undo the years during which he couldn’t work because it had been enacted.

Another argument that is easily dealt with is the government’s appeal to Parliamentary sovereignty. The majority is right both that “Parliament remains subject to the constraints and accountability mechanisms of the Constitution, including the Charter“, and that “[l]imited immunity does not impair Parliament’s power to make and repeal laws within the confines of the Constitution”. [81] The majority even, quite rightly, cites one of my favourite insufficiently well-known cases, Amax Potash Ltd v Government of Saskatchewan, [1977] 2 SCR 576, emphasizing its reminder that “it is the high duty of this Court to insure that the Legislatures do not transgress the limits of their constitutional mandate and engage in the illegal exercise of power”. (590) Incidentally, I think this rather undermines the majority’s own unfortunate endorsement of the view of the Charter as a “revolution” in Canadian constitutional law. The Charter expanded the courts’ role and gave them new tools, but the limits on Parliament’s sovereignty and their enforcement by the courts were not new. Justice Rowe tries to deflect the Amax Potash point by quoting its assurance that courts are not concerned with the wisdom of legislation, which of course is true so far as it goes, but has nothing to do with the issue at hand. Power is not about courts controlling policy, but about what remedies are available when legislatures break the law.

I turn now, to concerns about governance proper. In the majority opinion, these are lumped together the discussion of Parliamentary privilege, but as Justices Jamal and Rowe each argue, the latter is a distinct constitutional rule or set of rules; it is not just something that can be thrown into a balance with other nice-to-have considerations. As Justice Jamal puts it

If the existence of a recognized category of parliamentary privilege is proved, there can be no judicial review of the exercise of the privilege, even on Charter grounds. Words or conduct protected by parliamentary privilege is simply not subject to the Charter. [191]

This is right, for reasons I’ll return to in the next post. What is left of good governance, once privilege is considered separately, is the concern that the possibility of an award of damages for unconstitutional legislation will chill the ardours of our elected representatives in ensuring that we are well governed. This, of course, brings Sir Humphrey Appleby to mind:

Justice Rowe, relying on the submissions of the Speaker of the House of Commons as an intervener, claims that legislators might self-censor in response to the possibility of liability for unconstitutional legislation. He also worries that legislatures will lose their “ability to meaningfully respond to decisions in which the judiciary has determined the validity of laws or the legality of actions taken pursuant to those laws”, [366] and, even more vaguely, warns of unspecified unforeseen consequences. Cue Sir Humphrey once more:

Both the majority and Justice Jamal accept that the availability of damages awards for legislative breaches of the Charter might chill or deter legislative activity. Their solution to this problem is to raise the threshold at which these damages are available, so that not every unconstitutional statute will qualify. The majority accepts the formulation of this threshold being whether “the enactment would have been clearly wrong, in bad faith or an abuse of power”, [102] drawing from Mackin v New Brunswick (Minister of Finance), 2002 SCC 13, [2002] 1 SCR 405. The “clearly wrong” prong refers to asking

whether the legislation is “clearly unconstitutional”, which directs a judge to look objectively at the legislation itself, particularly the nature and extent of its constitutional invalidity. Underlying this objective assessment is a presumption of the legislature’s knowledge of and respect for basic Charter rights.

…

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. [103, 105]

Justice Jamal, as I explain in the next post, is rightly concerned that any attempt by the courts to assess the good faith of legislation, or whether it was an abuse of power, opens the door to violations of Parliamentary privilege. Accordingly, Justice Jamal would restrict the availability of Charter damages to cases where the legislation was “clearly unconstitutional” when enacted “in the sense that the unconstitutionality was readily or obviously demonstrable at the time the legislation was enacted and could not be subject to any serious debate”. [246] He defends this formulation as a kind of golden mean between a loose standard that would lead to the chilling of legislative endeavours and a stringent one that would prevent recovery altogether. But this isn’t exactly a well-developed argument, though I think that Justice Rowe does rather exaggerate both degree to which Justice Jamal’s test “will necessarily depend on the eye of the beholder” and, even more, “[t]he potential for self-censorship” [364] that would result from its application.

But while I think that Justice Jamal’s approach makes more sense than either the majority’s or Justice Rowe’s, I am not sold on it. To me, the concern that legislatures will be chilled by minor damages awards once in a blue moon seems rather fanciful; they are routinely unafraid of wasting billions of dollars on cockamamie schemes designed to win a handful of ridings, if that. The idea that individual legislators will be deterred from speaking their minds is even less plausible. It’s not individual legislators who will be paying Power damages. That they would ever restrain themselves from sounding off out of a concern for the taxpayer is an assumption far too heroic for any court to have to make. And if this is too tart for you, gentle reader, consider that European legislatures, including the UK Parliament, whose traditions Justice Rowe is so keen to preserve, seem to manage just fine despite the European Court of Human rights being authorized to award damages (“just satisfaction”) for violations of the European Convention on Human Rights, including those caused by legislation.

Closer to home, our own Parliament habitually accepts that the taxpayer can be on the hook as a result of its enacting legislation that contravenes investor-protection treaties which the Canadian executive enters into and Parliament implements. For instance, Article 14.8 of the US-Mexico-Canada Free Trade Agreement stipulates that “[n]o Party shall expropriate or nationalize a covered investment either directly or indirectly through measures equivalent to expropriation or nationalization … except”, i.a. “on payment of prompt, adequate, and effective compensation”. Can it be the case that Canadian legislatures are less chilled by having to make amends for screwing over foreign investors than their own citizens? Or are other rights ― the ones actually recognized in the Charter, which property rights, regrettably, are not ― less worthy of compensation? James Madison rightly thought otherwise, arguing that “as a man is said to have a right to his property, he may be equally said to have a property in his rights”.

But truth be told, it’s just not obvious to me, to say the least, that legislators being chilled from enacting unconstitutional legislation is a bad thing. Jeremy Waldron has argued that we might want to keep definitions of torture vague because chilling borderline behaviour by prion guards and such is rather a good than a bad thing. He would not want the same principle applied to legislatures, I suspect, but I’d give it a shot.

Now, what I would not want to see is damages awards whereby taxpayers, in effect, compensate themselves, for violations of rights that affect large swathes of the citizenry ― if only in very minor ways. I would not relish the prospect of something like R v Big M Drug Mart Ltd, [1985] 1 SCR 295 (where the Supreme Court struck down the Lord’s Day Act) turned into a class action that would only benefit the applicant’s lawyers. The solution to this issue that seems most obvious to me ― it may not be the only one ― is simply relying on the adequate alternative remedy test. If the individualized harm that any one person has suffered as a result of the enactment of unconstitutional legislation is small, then having that legislation struck down under section 52 of the Constitution Act, 1982 is a just and appropriate remedy under section 24 of the Charter, and nothing more is needed. But if, as in Power, identifiable individuals suffer quantifiable harm, declaratory relief is not enough to do them justice. Be that as it may, positing a high threshold of misbehaviour on the part of legislatures is neither necessary nor even sufficient to address these concerns.

In sum, governance considerations do not warrant a bar against damages awards as a remedy for the enactment of legislation that breaches the Charter. Admittedly, all the opinions in Power accept that there is some risk of legislative activity being chilled by the prospect of such awards. But they provide no evidence of this, and the examples of both European countries and indeed Canada, in relation to investment treaties, suggest that democratic legislatures can deal with this alleged difficulty. And while the majority and Justice Jamal both suggest that a heightened threshold of legislative misbehaviour is necessary and sufficient to protect legislatures, even this concession strikes me as unnecessary. Provided that unconstitutional legislation has inflicted on specific people the kind of harm that can be remedied through an award of damages, there is no reason why the remedy should not be available. If that makes legislators think twice before indulging their law-making proclivities, which I do not think it will, so much the better.

But that doesn’t dispose of the most important issue that motivates Justice Rowe’s dissent and splits Justice Jamal from his colleagues in the majority: that of Parliamentary privilege. Even if it’s not objectionable from a governance perspective, does the possibility of damages awards for legislative activity amount to an unconstitutional interference with the autonomy of legislative institutions? I shall address this in the next post.