Double Aspect

As promised, and with apologies for the delay, this is the third (and final… I think) 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, as well as governance concerns with allowing damages awards for unconstitutional laws. Here, I turn to the issue that is central to Justice Rowe’s dissent and splits Justice Jamal from his colleagues in the majority: that of parliamentary privilege. Does the possibility of damages awards for legislative activity amount to an unconstitutional interference with the autonomy of legislative institutions? That would make it not “appropriate” in terms of section 24(1) of the Charter.

By way of reminder, in Canada (House of Commons) v Vaid, 2005 SCC 30, [2005] 1 SCR 667 the Supreme Court defined privilege as “the sum of the privileges, immunities and powers enjoyed by the Senate, the House of Commons and provincial legislative assemblies, and by each member individually, without which they could not discharge their functions.” [29] As Justice Jamal explains in Power,

It includes the privileges of freedom of speech in the legislative process and Parliament’s exclusive control over parliamentary proceedings. … Courts have jurisdiction to determine the existence of a recognized category of parliamentary privilege, but they have no jurisdiction to review the exercise of the privilege, even for compliance with the Charter. Because the privilege is part of the Constitution of Canada, it cannot be abrogated or diminished by another part of the Constitution, including the Charter. Parliamentary privilege is a corollary to the separation of powers because it gives the legislative branch of government the autonomy it requires to perform its constitutionally-assigned functions. [123]

Recall also that, as explained the first post, the government initially framed Power as presenting two separate issues: 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 saw the two issues as one and the same. The other opinions did not, ostensibly ― though Justice Rowe actually seems to have.

What I will do here is to address, first, the general approach to privilege in the three opinions, and then the specifically the way they deal with, or ignore, the distinction between the two issues. Apologies for the length, and the amount of quotation. I am too tired.

The majority acknowledges that privilege “plays an essential role in our democratic and constitutional order by allowing legislative officials to carry out their function, including vigorously debating laws and holding the executive to account”. [51] But, in its view, privilege is just one of the “principles” to be balanced and reconciled with others, such as constitutionalism, in working out an arrangement whereby legislatures can do their job but also be held to account.

The majority explains its approach as follows:

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]

As I explained in the last post in the context of discussing arguments based on governance, the majority relies on raising the threshold of liability in damages to achieve the reconciliation of the relevant constitutional principles. It argues that

[t]he availability of an after-the-fact judicial remedy for unconstitutional legislation does not interfere with the law-making process. However, respect for the legislative role requires a high threshold for liability for the enactment of unconstitutional legislation. [82]

It also points out that an award of Charter damages is not directed against individual legislators, and that

[t]he state’s conduct within the legislative process is not an independent basis for liability but rather informs whether damages are an appropriate and just remedy for the breach caused by the enactment of the Charter-infringing law. [86]

For Justice Jamal, this approach is insufficiently respectful of the place of privilege in the constitution. He points out that “[w]hen a matter falls within the scope of parliamentary privilege, the exercise of the privilege cannot be reviewed by any external body, including a court”, [151] including on Charter grounds. That is because “Parliamentary privilege is not a mere principle of interpretation, rule of evidence, or constitutional convention” but “part of the Constitution of Canada”, [156] and as such cannot yield to another part of the Constitution.   

As a result, if either the ministerial role in the preparation of unconstitutional legislation or the enactment of an unconstitutional statute is covered by privilege, the courts have no jurisdiction to award damages for them. Whether one or the other is so covered is a preliminary issue, not something to be balanced with other considerations.

Justice Rowe too emphasizes the importance of Parliamentary privilege, whose historical pedigree, Charles I and all, he dwells on at some length. By undermining it, “we will undo the coherence, completeness, and integrity of that constitutional scheme, one on which this country has relied as it was formed, as it has grown, and as it has matured”. [256]  Like Justice Jamal, he points out that privilege is a part of the constitution and thus cannot be ousted by the Charter. Nor can they be overridden by “[n]orms expressed in the underlying/unwritten principles of constitutionalism and the rule of law”. [266]

That said, he insists on the importance of the “[u]nwritten components of our Constitution — including parliamentary privilege”. [271] Privilege is not just a historical relic: it has “constitutional functions relating to parliamentary autonomy, structuring the constitutional dialogue, and undergirding the separation of powers”. [281] Besides, while “[c]onfident legislative assemblies are cradles of popular liberty[,] timorous ones are instrumentalities of control by the well-situated”. [296] It follows, then, that courts have no role to play in reviewing exercises of privilege within its established scope. The Charter too must be applied with this principle in mind.

The majority’s approach doesn’t make sense to me. Either the availability of the damages remedy “does not interfere with the law-making process”, in which case that is so regardless of the “threshold for liability”, or it does, in which case a “high threshold for liability” can certainly reduce, but not eliminate, the “interfere[nce] with the law-making process”. The majority doesn’t so much balance competing claims as tries very hard to have its cake and eat it too, and is no more successful at that than anyone else would be.

Justices Jamal and Rowe, I think, are basically right. Granted, there are some things that puzzle or even worry me in their opinions. Justice Jamal’s dig at constitutional conventions is odd, given that conventions too are part of the constitution of Canada, albeit (maybe) not a judicially enforceable one. More importantly, Justice Rowe lists crown prerogative as an unwritten element of the constitution seemingly on par with privilege, which would go against the holding in Operation Dismantle v The Queen, [1985] 1 SCR 441, that the exercise of the prerogative ― unlike that of privilege ― is reviewable for Charter violations, subject to other justiciability concerns. But the fundamental principle they stress is right. Privilege is a part of the constitution, and it shields the legislative process from judicial interference or even after-the-fact questioning. Not everything in law is amenable to balancing tests, and I think the predilection for them is what trips up the majority into a significant constitutional error.

Turning to the distinction between liability for ministerial and official actions leading to the enactment of legislation and that for the enactment of legislation as such, the majority again relies on balancing and thresholds in preference to categorical rules. It warns that “[c]ourts must be careful to avoid enlarging recognized categories of privilege in response to broad or vague assertions of privilege, especially in the context of an alleged Charter rights violation”. [87] That is what considering “government officials, including public servants acting in an executive capacity, involved in policy development and advisory roles related to the preparation of legislation” [87] to be covered by privilege would do, unnecessarily. Instead, “parliamentary privilege may prevent claimants from adducing certain types of evidence relating to the legislative process”, [91] notably testimonial evidence from legislators. But the majority seems to endorse the use of the Hansard in Charter damages litigation.

As noted in the previous post, the majority adopts the “clearly wrong, in bad faith or an abuse of power” [102] threshold of liability drawn from Mackin v New Brunswick (Minister of Finance), 2002 SCC 13, [2002] 1 SCR 405. It explains that “[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”. [105] This will be the usual ground for imposing Charter damages for unconstitutional legislation. Findings of bad faith or abuse of power will be “rare”, [106] and the majority makes no “attempt to define bad faith or abuse of power in the law‑making process with exactitude”.[107] However, the majority cautions “that discerning institutional motivation or the knowledge of legislative bodies when enacting legislation is a difficult task” and that “[a]s with other contexts of institutional state conduct, whether it is possible to attribute the bad faith or abuse of power of an individual or group to the institution itself will depend on the facts of a given case”. [110]

Not good enough, says Justice Jamal. Unlike his colleagues, he insists that there are “distinct parliamentary privilege considerations relating … to the legislative process of preparing and drafting legislation, and … to the grounds on which legislation, once enacted, may be reviewed”. [168; emphasis Justice Jamal’s] As a result, “[t]he two questions” originally asked by the government “do not lend themselves to a single, blended analysis with a uniform answer”. [168] 

The preparation and drafting of legislation “is undoubtedly core legislative work and is protected from judicial interference and supervision by the established categories of parliamentary privilege of freedom of speech and control over parliamentary proceedings”. [178] Furthermore, when

[m]inisters and other government officials participat[e] in the legislative process because … they act in a legislative rather than an executive capacity. Such conduct is not Crown conduct that can be attributed to the executive for which the Crown can be liable. [193]

Justice Jamal analogizes this situation to that in Mikisew Cree First Nation v Canada (Governor General in Council), 2018 SCC 40, [2018] 2 SCR 765, where the Supreme Court rejected the claim that a “duty to consult” fell upon ministers as they are prepared legislative proposals for Parliament. The preparation of legislation is beyond judicial supervision.

Similarly, for Justice Jamal, courts may not inquire into the good faith of legislators engaged in law-making, which is way he rejects majority’s definition of the threshold of liability even for the second question. As he notes, “[t]he courts cannot put Parliament or a provincial or territorial legislature ‘on trial’”, [221] and the privilege of freedom of speech in Parliament applies to all parliamentary proceedings, whether or not the speaker is in good faith. That said, Justice Jamal goes out of his way to insist that his approach

does not mean that Hansard evidence is unavailable to aid statutory interpretation when determining the constitutionality of legislation, such as in determining whether legislation has the unconstitutional purpose of infringing a Charter right. [229]

By contrast, for Justice Jamal, “an enactment that violates the Charter can give … rise to Charter damages … after a bill has become law and the legislative process is complete”. [201] This is because privilege is not infringed “by a test that focuses not on legislative inputs, that is, on speech or conduct in the legislative process, but rather on legislative outputs, as reflected in the text of the legislation”. [239; emphasis Justice Jamal’s] Looking at the text of the statute does not require questioning anything said or done in Parliament, and is thus open to the courts.

Justice Rowe too argues that “parliamentary privilege attaches to the entire process through which legislation is developed and adopted, and protects ministers and officials when they carry out legislative duties”, [305] pointing to Mikisew Cree and to “the interlocking nature of the process of legislative development which involves many participants at each step”, including ministers and officials. He notes that “[i]t is not open to the courts to intrude upon the bona fides of parliamentary debates and proceedings”. [319]  Indeed, opening the door to such intrusions by allowing Charter damages for legislation would “thrust” the courts “into a position of overseeing the work of Parliament and the provincial legislatures, and inquiring into the motives and knowledge of parliamentarians and others involved in the legislative process”. [365]

In addition, the Crown’s legislative role is distinct from its executive functions. The courts should not impute control of the legislative process to the executive, which would be necessary to make the executive liable for Charter violations in the course of the legislative process. In the same vein, “the Attorney General of Canada does not (and in fact, cannot) represent Parliament in legal proceedings”. [351]

As best I can tell, however, while he “disagree[s] that the two questions” originally asked by the government “can be blended” [337], Justice Rowe never gets around to answering the second one. Beyond briefly disagreeing with Justice Jamal’s approach to liability for “clearly unconstitutional” legislation (as discussed in my last post), he never addresses the issue of Crown liability specifically for the enactment of a statute, as opposed to ministerial or official conduct in the legislative process.

Here too I think the majority’s approach is quite misguided. As Justices Jamal and Rowe point out, the preparation of legislation is part of proceedings in Parliament, and it is a fool’s errand to try disentangling the executive and legislative aspects of the process. If anything, I think Justice Rowe is overdoing his emphasis on the separation of powers (of which I haven’t said very much ― the post is too long as it is) for precisely this reason: law-making in Westminster systems is a tangled endeavour where the legislative and executive branches cannot easily be told apart. The majority’s unwillingness to lay down any tests in advance, and confidence that difficult questions can be worked out in later litigation is not conclusive evidence that these questions are in fact too difficult to be managed, but it is at least a warning sign.

The distinction between the two questions is thus essential, for the reasons Justice Jamal gives. And Justice Jamal and Justice Rowe are right that liability cannot be imposed for supposed bad faith or abuse of power in the preparation of legislation. As I said in my last post, I am sceptical about the majority decision having the dire consequences Justice Rowe warns off, and I think his invocations of Cicero and Charles I are over the top. But that doesn’t matter, because, as discussed above, parliamentary privilege is a peremptory concern, a matter of jurisdiction as Justice Jamal says, and not just part of a balancing exercise where consequentialist considerations are more relevant.

That leaves the question of what to do about the second question, that of liability for the enactment of legislation as such, rather than for any abuse in the process of its preparation. It is unfortunate that Justice Rowe ignores this question altogether. If it is distinct from the first question, as he seems to say it is, then it will not do to recite as a mantra his opposition to any award of “damages for the preparation, drafting, and enactment of legislation”, as he repeatedly does. The fact of enactment is not privileged; it is part of the general law of the land, not something that happens within the special realm of the Law and Custom of Parliament. It is, obviously, subject to judicial review under section 52(1) of the Constitution Act, 1982. Here the issue is not whether courts can do something about it ― they can ― but whether awarding damages in addition to a declaration of invalidity is “appropriate”, in the Charter‘s terms.

Thus far I agree with Justice Jamal. And I do not share the majority’s criticism of his approach. The majority claims that “like bad faith and abuse of power, the clearly unconstitutional standard implicates Parliament’s conduct in enacting legislation”. [109] I think this is well-nigh disingenuous. As Justice Jamal articulates the standard, it is very much not about the legislature’s conduct but about what was publicly known at the time of enactment. I suppose that what the majority is getting at is that a finding of “clear unconstitutionality” on Justice Jamal’s approach carries with it an implicit judgment about and condemnation of Parliament’s disregard for the constitution. But to my mind there is a world of difference between this judgment being an inference left for the reader to draw and something the court itself pronounces. Despite the terms of Article 9 of the Bill of Rights 1688, parliamentary privilege does literally mean Parliamentary speech and debate will “not be … questioned in any … place out of Parliament” (emphasis mine). Citizens are free to question and criticize their representatives to their heart’s content. It is specifically courts that must refrain from doing so. 

Even so, as explained in the last post, I would not have adopted Justice Jamal’s approach to the second question. I do not think that it is necessary or even useful to introduce heightened liability thresholds to deal with the issues in this case. If a statute is unconstitutional and causes individualized prejudice of a sort for which the declaration of unconstitutionality is not an adequate remedy, then damages should be available. This avoids even the suspicion, however unfair, of trenching on privilege by condemning Parliament’s motivations, as well as the residual subjectivity of an inquiry into what would have been obvious at the moment of a statute’s enactment. The improvement may be no more than marginal ― again, I think Justice Jamal’s approach mostly avoids the problems his colleagues attribute to it ― but it is still an improvement, and I think this test has simplicity on its side too.

So those are my thoughts on Power. The majority is partly right on the bottom line, but its approach to the case, which relies on balancing considerations that should not be balanced and on subjective thresholds it does even try defining is not the right one. Justice Jamal’s concurrence is not too far off where I would have landed myself, but, while much less problematic than the majority opinion, it too unnecessarily relies on a liability threshold that has no particular textual warrant or practical justification behind it. And Justice Rowe’s dogmatic and at times vituperative dissent is disconnected from both constitutional text and constitutional reality, in addition to failing to answer a question he himself identifies as part of the case. A simpler approach would have been available, but no one seems to have taken it. Oh well.

All that said, I simply don’t understand the torrent of indignation that has flown since Power was released. The majority’s opinion is very seriously flawed, but a moment’s thought about the experience of the UK in the European human rights system suggests that it is not the end of Westminster democracy as we know it. It is difficult to avoid the suspicion that much of the handwringing about it has less to do with the sanctity of parliamentary privilege than with the broader intellectual agenda of discrediting constitutional adjudication, and especially Charter-based adjudication, in the name of a Westminster tradition to which no Westminster-based constitutional system adheres in 2024. That agenda worries me no less than the Supreme Court’s repeatedly demonstrated ability to make a hash of the constitution, because making a hash of the constitution is what it is meant to do too. Oh well.