The Clashing of Constitutional Principles: Canada (Attorney General) v Power

In Canada (Attorney General) v Power 2024 SCC 26 [Power], the Supreme Court held that the Crown can be held liable in damages for passing legislation later deemed unconstitutional. This case turns on conflicting constitutional principles. On the one hand, the principles of parliamentary sovereignty, the separation of powers, and parliamentary privilege call for absolute immunity for legislative action. On the other hand, the principles of constitutionalism and the rule of law require the courts to award effective and meaningful remedies for Charter breaches.

The majority and the two dissenting opinions each struck a different balance in their attempts to reconcile these opposing constitutional principles. The majority affirmed the balance struck in the previously leading case of Mackin v. New Brunswick (Minister of Finance); Rice v. New Brunswick 2002 SCC 13 [Mackin], concluding that the state only enjoys limited immunity for its law-making powers. Jamal J took the middle path, narrowing Mackin’s limited immunity and clarifying the court’s jurisdiction with respect to parliamentary privilege. Rowe J concluded the Crown is entitled to absolute immunity.

Facts

In 2011, Joseph Power was let go from his position as an x-ray technician at a New Brunswick hospital after his supervisor discovered that Power had a criminal record. When Power was convicted in 1996, he would have been eligible for a record suspension five years after release. However, new legislation enacted in 2010 and 2012 retrospectively altered the availability of record suspensions for certain indictable offences making Power permanently ineligible to receive a record suspension. Power was subsequently unable to find employment in his field (Power, paras 7-13).

The transitional provisions enacted under the Limiting Pardons for Serious Offences Act, S.C. 2010, c. 5, and the Safe Streets and Communities Act, S.C. 2012, c.1 were later held to be unconstitutional in unrelated litigation for violating ss 11(h) and (i) of the Charter. Power brought an action against the Crown in right of Canada seeking damages under s. 24(1) of the Charter for the losses he incurred as a result of the unconstitutional provisions. Relying on the leading case of Mackin Power asserted that the enactment and application of the transitional provisions was conduct that was “clearly wrong, undertaken in bad faith, and an abuse of power” (Power, para 134).

Procedural History

In response to Mr. Power’s action, Canada brought a motion on a question of law. Canada conceded that the transitional provisions were unconstitutional, but maintained that the state has absolute immunity for damages under s. 24(1) based on the enactment of unconstitutional legislation (Power, para 13).

Canada asked the motion judge two 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.

The motion judge found that these questions turned on the single issue of whether the state enjoys absolute immunity in respect of the enactment of legislation. The motion judge found that the state did not, and answered “yes” to both questions. The Court of Appeal dismissed Canada’s appeal, agreeing with the motion judge that Canada does not enjoy absolute immunity in exercising its legislative powers.

Decision

At issue before the SCC was whether damages could be an appropriate and just remedy under s. 24(1) of the Charter for the enactment of legislation later declared unconstitutional.

The Majority

Wagner CJ and Karakatsanis J, writing for the majority, agreed with the lower courts that damages are available both when government officials draft legislation and when parliament enacts it. In doing so, the majority affirmed Mackin, which held that the state enjoys limited immunity in the preparation and enactment of legislation. According to the majority, Mackin set the threshold for Crown liability appropriately high – damages are only available for legislation that is “clearly unconstitutional,” or when the enactment was “in bad faith or an abuse of power” (Power, para 4).

The Court rejected Canada’s arguments that: 1) Mackin is not authoritative on this question because Mackin did not address parliamentary privilege (Power, para 58); 2) Mackin has been overruled in subsequent cases (namely Mikisew Cree First Nation v. Canada (Governor General in Council) 2018 SCC 40); and 3) If Mackin has not been overruled already, it should be.

At the heart of the majority’s decision is the need to balance the opposing constitutional principles at play. The majority recognizes that “in order to fulfill its institutional function,” the legislative branch requires independence to freely debate and exercise the “unfettered ability to hold the executive branch of the state to account” (Power, para 77). However, the Court also acknowledged the importance of balancing parliamentary independence with the principle of constitutionalism and the rule of law, which are “fundamental postulate[s] of our constitutional structure” (Power, para 54). In the majority’s view, Mackin got this balance right: “The threshold for liability established in Mackin was expressly designed to reconcile competing constitutional principles” (Power, para 65).

Despite the majority’s strong defence of Mackin, they clarified the threshold for liability. Negligence does not connote the gravity of misconduct that the threshold was designed to capture (Power, para 102). At the same time, the majority rejects the “clearly unconstitutional” threshold that Jamal J proposes (Power, para 104). The majority leaves room within their threshold to capture intentional misconduct, but they decline to define “bad faith” and “abuse of power,” leaving the content of these terms to be examined on a case-by-case basis (Power, para 107).

Dissenting Opinions  

Two dissenting opinions were given. The first, written by Jamal J (Kasirer J concurring), concluded that the two questions Canada raised pose distinct considerations relating to parliamentary privilege. As such, they must be analysed separately. On the first question whether the Crown in its executive capacity can be liable for the conduct of government Ministers and officials in the preparation and drafting of legislation, Jamal J answered in the negative. On the second question of whether the Crown in its executive capacity can be held liable for Parliament enacting a Bill that is later declared to be invalid, he answered in the affirmative, but with an important qualification (Power, para 124).

Jamal J concludes that Mackin should be clarified to eliminate the grounds of liability for “bad faith” and “abuse of power” because they would inevitably trench on the established categories of parliamentary privilege of freedom of speech and control over parliamentary proceedings. Courts would be drawn into scrutinizing whether the substance of the legislation is in “bad faith” or an “abuse of power” after the legislation had already been found unconstitutional. In Jamal J’s words, “this question is not justiciable and would strain the separation of powers” (Power, para 126).

According to Jamal J, the “essential undercurrent” of this appeal is the doctrine of parliamentary privilege, and analysis of this doctrine forms the centre of his dissent. Unlike the majority decision that ultimately resolves into a balancing exercise, Jamal J’s dissent attempts to demarcate the boundaries of parliamentary privilege and justiciability. He correctly observes that recognized categories of parliamentary privilege constitute exceptions from ordinary law, which includes an exemption from Charter review (Power, para 144). For the majority, this exception must be balanced against the constitutional principles of the rule of law and constitutionalism; however, such a balancing seems to neglect the very purpose of parliamentary privilege, which is to provide a zone of autonomy to the legislative branch in pursuit of effective performance of its duties. In other words, parliamentary privilege is a corollary of the doctrine of the separation of powers (Power, para 148).

Rowe J (Côté J concurring) offered the most full-throated defence of parliamentary privilege, concluding that the Crown is entitled to absolute immunity for the preparation, drafting, and enactment of legislation (Power, para 354). Rowe J’s conclusion flows from the premise that the Charter must be given effect in a manner consistent with parliamentary privilege. In Rowe J’s view, any derogation from absolute privilege will detract from the autonomy of parliament. “The unimpeded functioning of Parliament is not an anachronism,” Rowe J explains, “rather, it is foundational to liberal democracy” (Power, para 258).

Analysis

The majority solves the problem posed in this case by distilling the conflicting constitutional principles into a simple balancing exercise where the Mackin threshold epitomizes constitutional compromise: “While the separation of powers demands a core of legislative autonomy, it also demands legislative accountability through the role of the courts” (para 83). It is a sort of goldilocks solution – some immunity but not too much. In their attempt to balance or reconcile these competing constitutional principles, the majority avoids the tough questions about justiciability and parliamentary privilege that constitute the centre of Jamal J’s decision.

While many interveners called for clarification of the Mackin threshold — a threshold that the Supreme Court and lower Courts have interpreted inconsistently — the majority provided only meagre elucidation in excluding negligence from “bad faith” and “abuse of power” (Power, para 204).  However, the majority also declined to address Jamal J’s strong argument that it is impossible for a court to scrutinise the government’s conduct in enacting legislation after the fact without trenching on parliamentary privilege. As Jamal J rightly points out, such questions are not justiciable.

At the same time, I am skeptical that Jamal J’s “clearly unconstitutional” threshold would provide any helpful clarity. While Jamal J eliminates the problematic “bad faith” and “abuse of power” categories, he does not answer the question, what is the difference between unconstitutional and “clearly unconstitutional”? He suggests that legislation that is unconstitutional in purpose will meet that threshold (Power, para 248). Yet, as Jamal J admits, legislators are unlikely to enact legislation that is unconstitutional in purpose. If they were to enact such legislation, they are likely to do so pursuant to the Section 33 legislative override. For legislation that is not explicitly unconstitutional in purpose, then determining “clearly unconstitutional” threshold is likely to involve examination of the very non-justiciable questions Jamal J sought to avoid.

Despite calls from the parties and several interveners to clarify the Mackin threshold, it appears that the majority decision leaves as many questions open as it purports to answer. Whether this decision will have the chilling effect on the effective function of Parliament that Rowe and Côté JJ fear remains to be seen.

This article was edited by Patrick Weston.