BWA: Who’s got the Power? (Canada (Attorney General) v. Power)

Yael Bienenstock (00:08): Welcome to Breakfast With Appeal, Torys’ quarterly series on the cases you want to know about. We offer our thoughts on the appellate law that's shaping Canadian conversations. Let's dive in.

Andrew Bernstein (00:24): So today we're going to be talking about power in Canada. A case that asks the question: Can someone get Charter damages when Parliament passes unconstitutional legislation? Good question, let's answer it.

Mr. Power was suing Canada for constitutional damages. David, why was he suing for constitutional damages? And what were his theories?

David Outerbridge (00:47): So, the case has to do with harm that Mr. Power says he suffered as a result of unconstitutional legislation, having been prepared and put before Parliament and enacted. So, the background is [that] Mr. Power was convicted in 1996 of two indictable offenses, and he was imprisoned. He had an eight-month sentence. He was released and, then got on with his life.

He enrolled in college. He became an X-ray technician. And he joined a hospital in New Brunswick as an X-ray, a medical radiation, technologist. And there he worked for somewhere in the range of 12, 13 years. So, in 2011, 15 years after he was convicted, the hospital got a tip that he had a criminal record, and they suspended his employment.

And he later tried to get work and couldn't get work in his field. And so he tried to get a record suspension under the federal legislation dealing with record suspensions—what used to be known as pardons—and was rebuffed because, in between the time that he was convicted and the time that he asked for a record suspension, the Conservative government had Parliament pass a law that didn't allow people who had been convicted of serious offenses to get a record suspension or a pardon.

And so, he was denied, didn't get a record suspension, but then shortly after that, the record suspension denial law was held to be unconstitutional on the basis that it retroactively imposed greater penalties on offenders. And that's not permissible under the Charter. And so, he brought a claim against Canada, the Government of Canada, for damages as a result of having been harmed by not being able to get a record suspension as a result of this unconstitutional law.

And interestingly, he—there were two different aspects of what he was suing for. For one, he was suing the federal Crown for having prepared and put before Parliament this unconstitutional statute. And secondly, he was suing the federal Crown for Parliament itself having passed this unconstitutional statute. And the Attorney General of Canada brought a preliminary motion challenging his ability to seek damages for those two things. Uh, that motion was dismissed. The motion judge said that Mr. Power was allowed to bring this type of application for damages, and that Canada did not have absolute immunity from—in connection with—these two tasks in the legislative process. The Court of Appeal of New Brunswick agreed with motions judge, and up it went to the Supreme Court.

Andrew Bernstein (03:18): Okay. Jeremy, I will say that you’ve got to have a little sympathy for Mr. Power, who seems to have gotten, done a little dirty here by the unconstitutional legislation, and he's out, potentially out some money, so why wouldn't he be entitled to damages?

Jeremy Opolsky (03:35): So, let's just start with going back to the famous pie throwing case of, uh, of Ward, which sets out when you can and can't get constitutional damages [inaudible] was a relatively new concept in our, in our law. And we should call them Charter damages, because that's what they really are. It sets out a four-factor test, because everything sets out of four-factor test. And the idea—

Andrew Bernstein (03:57): Except for the three- and five-factor test.

Jeremy Opolsky (03:58): [Laughter] Sure, sure. But it's usually applied in the context of state action: a police officer, a, a state agent, someone who has effectively acted outside the boundaries of the law and violated Charter rights. This is fundamentally different. This is about the act of the legislature, in this case Parliament. And Canada pushes back on the ability to seek damages against the state, and this is important that it's a little bit amorphous, right? The, the Parliament doesn't, isn't a legal body. It doesn't have, in a sense of being a body corporate, it doesn't have assets in and of itself. You're suing the government of Canada, you’re suing the executive, for the legislative acts, and it gets messy when you deal with the divisibility of the Crown—Parliament and the Crown, [inaudible] right, of, of the executive. So, Canada pushes back on a few different fronts, and I'm just going to list them here.

Andrew Bernstein (04:53): Good.

Jeremy Opolsky (04:54): Um, firstly, they push back on the availability of available remedy. They say you can get a different remedy. You can strike down the law under section 52 of the Constitution Act of 1982. And that should be enough. Secondly—and this is the real push—this violates the good governance principles of how we run the state of Canada.

And it goes to a countervailing factor in Ward (it's the third step, it’s not important) but basically saying you can't get these damages because it would undermine how we function from a governance—it would interfere with Parliament's lawmaking functions, it would chill that lawmaking functions, and the Crown as a representative of Parliament cannot be liable for preparing and drafting legislation.

These are core legislative functions. And then it goes on to invoke several constitutional principles that it thinks such claims would contravene. Firstly, parliamentary sovereignty, uh, secondly, separation of powers, and lastly parliamentary privilege, which are all core features of the British constitutional system and imported, therefore, in the Constitution Act of 1867, into, our system. We'll talk a little bit more about these, I think, as we go on, but I'll just focus on parliamentary privilege, which is kind of the core between some of the distinctions that we draw.

Parliamentary privilege is the privileges, immunities, and powers of the Senate and Commons. And then there is a corollary principle that applies to legislative assemblies of the provinces. And this is really the focus of Justices Jamal and Karakatsanis, when we talk about the decision itself. They're provided for in the Constitution Act of 1867, which allows Parliament to enact legislation to protect its privileges.

And they did, in, uh, the Parliament of Canada Act. So, what the government argues is that parliamentary privilege is a parallel constitutional principle to the rights of the Charter, and they need to live in balance. It's effectively not justiciable for the court to infringe upon, uh, the privileges and immunities of Parliament to award damages for the legislative process.

In effect, you have to balance the rule of law concerns and the Charter concerns that Mr. Power brings against these principles.

Andrew Bernstein (07:08): I think it's fair to say [laughter] there's a lot going on here, and if we really wanted to bore our audience to tears, we could spend an entire hour on it. We want to bore you, but not all the way to tears. [Laughter] So, we are going to, uh, just stick with the kind of 20 minutes. But Yael, tell us what the Supreme Court said about this and also tell us what you think about this.

Yael Bienenstock (07:27): So, as you can probably take from both Jeremy and, and David's set up, none of this is straightforward and perhaps it's not surprising that the Supreme Court had different things to say about this. There are three different decisions, so I'm going to talk about the majority, and then I will talk about the minority decisions as well. The first thing that I think is important here is that this isn't the first time that the Supreme Court had dealt with these kinds of questions.

There was a previous case called Mackin, which was decided in 2002, and in that case, the court held that the Crown is not entitled to absolute immunity for enacting unconstitutional legislation, but it could only be liable for Charter damages if the impugned actions were clearly wrong, in bad faith, or an abuse of power. So, you need to have one of those three exceptions.

And so, this is kind of referred to as limited immunity. There's not absolute immunity. There's limited immunity. And here what the government argued in trying to argue for absolute immunity, they said either Mackin didn't apply, or it had been overruled, or if it hasn't been overruled yet, it should be overruled now. Those were essentially the, the arguments. And that's what the majority opinion really deals with.

And it deals with the application of Mackin. And in doing so, the court really looks at the competing principles that Jeremy talked about. So, on the one hand you have the need for government autonomy, the need for government to operate in, I'm going to call it a safe space where they can enact legislation. And that's protected by these principles of parliamentary sovereignty, parliamentary privilege and the separation of powers.

And all of those principles would be furthered by government immunity, an absolute immunity taken, you know, all the way to the extreme. On the other hand, there's the need for the government accountability, and that's supported by things like Charter remedies, a broad and purposive approach to rights, and remedial provisions in the Charter. The rule of law. And all of these principles would be furthered by allowing Charter damages for unconstitutional legislation. And what the majority says is, we're not looking at these different principles in terms of a hierarchy.

It's not that one trumps the other. We have to reconcile them. We have to balance them, which is, is something that Jeremy talked about. And, you know, I think that sounds really good. [Laughter] It's a little hard to figure out what that means in practice. And given the amount of time we have and the fact that we're not—we're going to try not to bore you to tears, I think one way to think about the majority's decision is, if you think about it, on this sort of spectrum of, you know, absolute immunity on one side and Charter damages always on the other side, they're looking for a balance. And I think at the end of the day, what they're really looking for is a compromise. And so, what the majority says is, Mackin—limited immunity—comes somewhere in the middle, is an appropriate balance here.

And then they go back and they say, okay, well, if we apply Mackin—the limited immunity, you're immune except for these three exceptions—how does that work with these different principles of parliamentary privilege, separation of powers, and parliamentary sovereignty? And they say, you know, does this unduly interfere? And the answer is no. They say Parliament is not above the Constitution.

It's subject to the accountability mechanisms in the Charter and a limited immunity instead of an absolute immunity does not impair Parliament's power to make and repeal laws within the confines of the Constitution. On separation of powers, they say you don't need watertight compartments between the different branches of government, and so that also supports some immunity, not absolute immunity.

I have to say, I did get—I'm going to call them Goldilocks vibes—as I was reading this decision. [Laughter] And on parliamentary privilege, they explained that the privilege protects particular aspects of the legislative process, but permitting Charter damages for legislative enactment doesn't undermine parliamentary privilege, because Charter damages are sought against the state and not against individuals. So, they really focus, I would say, on the question of the enactment, I think David said when he was setting it up, there were two different questions here, one had to do with preparing the legislation, and the other had to do with enacting it. And the majority decision kind of blends them. They say it's very hard to tell the difference. These things are entangled, and they don't deal with the questions separately. And I probably haven't covered everything important that they talk about. But I'm going to move on to the minority opinions for time.

So, there were two minority opinions. There was Justice Jamal and he agreed that there was limited immunity, but he sought to narrow and qualify Mackin to protect parliamentary sovereignty and parliamentary privilege. So, he didn't think it should be overruled. But he did think it should be clarified. And so, first of all, he rejected the majority's—let's call it the blended approach on the two questions.

He looks at them separately. He looks first at the question of drafting legislation and then enacting legislation. And he says there can't be any liability for the conduct of government officials or ministers in preparing and drafting legislation. Because that is part of the core of legislative conduct that falls within parliamentary privilege. And so, he starts with—and there's quite a lot in the decision about where parliamentary privilege comes from and what it covers—

and what he says is it essentially provides a legal exemption from liability. It's a privilege. It shields legislative activity from external review. And so, he says, when a claim of parliamentary privilege is made, the courts can decide, you know, is the claim legitimate? Does the privilege exist? What's its scope, what's in, what's out? But once things are in, they can't kind of go into that privilege and say, we can sometimes interfere and sometimes we can't.

They say the privilege grants autonomy within its scope. And I think that's something that the majority opinion kind of says, well, you know, if it's really bad, then we can interfere. And he says, because it's part of the Constitution of Canada, parliamentary privilege, it can't be abrogated by another part of the Constitution, which is the Charter. So if the parliamentary privilege applies to the legislative process, then the Charter doesn't because it's immune from it.

It's not justiciable. It's not something that courts can wade into. On the enactment, he had a different view. He said, if what we're talking about is the actual enactment, then we get into the Mackin world, where Mackin applies. But he tried to shift the balance closer, I would say, to the autonomy side of the spectrum. And so, he says Charter damages are applicable where a law is clearly unconstitutional at the time it was enacted, but getting into bad faith and abuse of power, um, is something the courts should not be doing. And Justice Rowe says—he went to the other side of the spectrum, perhaps not surprisingly [laughter]. He says, um, government should never be liable for damages when they enact unconstitutional legislation because of parliamentary privilege and the separation of powers. And I don't think we're going to get into his decision, but there's one line I really liked, which he says: “Parliamentary privilege is like an eggshell, one cannot break it just a little”. So, what do I think about this? Maybe I've given it away already. I, I think Justice Jamal got it right. I think that he kind of started with the principles and, and then analytically looked at, where do these principles take you?

The majority decision, I said before, seemed a bit like, okay, what's our overall approach here? What do we, what are we aiming for? We're aiming for balance, we're aiming for reconciliation, we're aiming for compromise. Does Mackin do that? Yes. Okay. Now let's work backwards and see how it affects these different principles. So, analytically, I like Jamal's opinion better. Okay? Although I love parts of Rowe. I will say. I like the eggshell.

Andrew Bernstein (14:58): Okay. So we're going to, I'm going to—before we just continue the discussion, I just want to give a shout out to our audience. We have never had this many people at a Breakfast with Appeal. So we hope that it's, uh, the combination of the case law and our good looks and charming personalities, but thanks to all of you.

David Outerbridge (15:16): And Jeremy’s anniversary.

Andrew Bernstein (15:16): Yeah, that's right, it’s Jeremy's anniversary, but thank—

Yael Bienenstock (15:18): And David's birthday, of course.

Andrew Bernstein (15:19): Exactly. But thanks to everybody who’s come, as well as—I just can't—like something like 20 of Torys alumni [are] here. A lot of people named Mark. [Laughter] But, you know, just want to—

Yael Bienenstock (15:32): I always thought we had a lot of people named Andrew.

Andrew Bernstein (15:33): Well, yes. [Laughter] There are definitely a couple of Andrews, actually, from David and my summer class, that are alumni and also actually watching us right now. So, hi, guys. So, David, with respect, back to the Power decision. There's been a lot of post-decision chatter about the decision subverting the role of Parliament. And if you read what I'm going to generally call the right-leaning new media like The Hub, you see, kind of, predictions of disaster. Are you buying all of this?

David Outerbridge (16:10): I'm, I'm not buying. Um, the—

Andrew Bernstein (16:12): Are you selling?

David Outerbridge (16:15): [Laughs] I, you know, I don't actually see this case as being as complicated as, as it was argued. You know, Parliament was never allowed to pass this law in the first place, and it's illogical to me to say that the decision interferes with the sovereignty of Parliament when Parliament’s sovereignty did not extend to passing this law. And, uh, in the Canadian system of government, we have constitutional supremacy and, that—it's not—parliamentary sovereignty is not the apex of the constitutional order. The Constitution is at the apex of the constitutional order, and Parliament is subject to the Constitution. And in this case, the Constitution did not allow this law to be passed.

Federal government and Parliament can't complain if they pass a law that breaches people's Charter rights and then are held to, to—have to account for it in some way. And when I say account for it in some way, you have to remember this is—the answer to this question is, it’s essentially a matter of black letter law that Section 24(1) of the Charter says, if your Charter rights or freedoms have been infringed or denied, you may apply for such remedy as the court considers appropriate and just in the circumstances.

So, you know, those who say that it's enough that the law was struck down under section 52, well, they're ignoring section 24, which says you can seek a remedy beyond that. And if he wasn't awarded a remedy, it would only be because the court decides that it's not appropriate and just for there to be a remedy. And as Jeremy explained, the Supreme Court has already articulated a test for when a remedy is, is appropriate and just in the circumstances in the Ward case and although it's a four-part test, the Ward decision really comes down to two substantive questions: one about the individual and one about our constitutional order of government.

From the individual perspective, the test looks at, you know, would it be appropriate to compensate this person? Would it—is it appropriate to vindicate this person's rights? And would awarding a remedy under 24(1) deter future unconstitutional actions? And, you know, those are all important objectives. And, you know, barring some countervailing factor, would, would make a remedy under 24(1) appropriate and just. The second substantive factor is whether the state can demonstrate that there's a countervailing reason not to award a remedy. And if Parliament was allowed to pass this law, theoretically that might be a countervailing factor. But if they're allowed to pass this law, there wouldn't be a remedy under 24(1) available in the first place.

So, you know, to my mind, the answer is in 24(1): that the Constitution says you get a remedy if your rights have been infringed, if it's appropriate and just, why would you say that parliamentary sovereignty is a reason to—is a countervailing factor when parliamentary sovereignty isn't actually at play in this situation? You know, you have parliamentary privilege, but presumably the privilege does not extend to breaching the Constitution, it never has and it doesn't now. So, if you actually have a constitutional breach, I don't think those principles can be the justification. You know, obviously there are those in certain parts of the political spectrum who don't like the Charter, don't like constitutional supremacy, don't like the fact that the legislature is not supreme. That's a fair stance to have, but it's not a reflection of our constitutional order as it currently stands. And so, to my mind, the remedy, you know—there is no reason to say it's inappropriate or unjust to give this man a remedy.

Andrew Bernstein (19:31): Okay. David getting, uh, feisty on his birthday, I love it. [Laughter] Jeremy, I know you like the concept of a constitutional separation of powers, which certainly is at play here. So, here's my question. And listen carefully, because it took me a long time to construct it. If you had the power to rewrite Power to reduce its impact on the separation of powers, how would you exercise that power? [Laughter]

Powerfully. [Laughter] It's funny, I was, I was thinking about this question, and I, I just thought it was a jab at my legal theory and not an actual substantive, substantive question, but actually—so I will say two things. Firstly, the concept of separation of powers is really in vogue. Professor MacDonnell wrote a chapter about this, looking at it empirically.

Jeremy Opolsky (20:20): And in 2021, 20% of all Supreme Court of Canada written opinions mentioned separation of powers. It's something that's at the forefront, something that Justice Karakatsanis and Justice Rowe write about a lot. I fall into Yael’s camp here, which is actually that Justice Jamal does a very good job in his decision, together with Justice Karakatsanis, in balancing the separation of powers, considerations.

We don't live in a world of watertight compartments. We don't live in a world where there are no, uh, impacts from one branch on another. We live in—kind of like federalism, there are core powers, and then there's a bunch of things that have a wide double aspect. And if you make the role of the judiciary to judge the role of, uh, Parliament’s enactments, a high bar, but not an impossible bar, like what Justice Jamal does in his decision, it is, ah, for me, very attractive to the separation of powers angle. I'll say just one more thing and I'll be brief, which is, it's not just the consequence of that decision, which is you set the standard at clearly unconstitutional for damages, it's also the rationale behind it.

What Justice Jamal is doing here is he's protecting the core of parliamentary privilege and its rationale. Back to the, you know, centuries of the evolution of the British Parliament. The idea is that the core legislative function—why and how, the debate, the rationale, the negotiations—are all protected, but the result is not. So, if the result is that something on its face, it is clearly unconstitutional, that someone objectively would know is clearly unconstitutional at the time, that is actionable. But if you want to go to one of the 338 parliamentarians and say, “this person has bad faith, this person thought the wrong thing”, you have to query what their motivations are. You have to, inevitably, he says, peel back the veil of parliamentary privilege that impedes on the separation of powers. So, I think the rationale in that decision is a strong separation of powers rationale. And I think [it] finds, strikes the right balance.

Andrew Bernstein (20:30): I always think it's kind of funny, the concept of a separation of powers always strikes me as kind of odd in a world where, you know, the prime minister is a parliamentarian and, uh, the chief justice is the deputy governor general. But let's put that aside, um—

Jeremy Opolsky (22:45): But [laughter] we also live in a in a country where the crown as a single king, is the crown and right of Parliament, the crown and right of the executive and the crown and right of the judiciary. So we have lots of cognitive dissonance available in the statutory. [Laughter]

Andrew Bernstein (23:00): Fair enough, fair enough.

That about wraps up our conversation. Before we go, I want to remind our listeners that they can find the webinar version of this edition of Breakfast With Appeal, along with previous episodes on torys.com, and that our BWA program is eligible for one substantive hour of continuing professional development. Thanks again for joining us and take care.