More Power to the courts

Parliamentary privilege, the separation of powers, and the distinct capacities of the Crown be damned

The Supreme Court of Canada’s ruling in Power came out today. This was an important case, one that pit the 1982 constitution against the 1867 constitution. Despite precedent and constitutional coherence weighing in favour of 1867, 1982 won out. To get to this outcome, the majority had to deal a series of blows to the foundations and development of the 1867 constitution.

What do I mean by pitting 1867 against 1982? Yes, both the Constitution Act 1867 (CA1867) and the Constitution Act 1982 (CA1982) form part of the Constitution of Canada. But the spirits of the CA1867 and CA1982 constitutions have been in tension since the latter was proclaimed. Our ongoing debate about the notwithstanding clause reflects this tension, for example. The clause serves to reconcile the historic supremacy of legislatures with the Charter’s emphasis on fundamental rights and freedoms. Another major tension has been the relationship between parliamentary privilege and the Charter. Until recently, parliamentary privilege had held the line: parliamentary proceedings and the legislative process were shielded from the courts, and hence, the Charter.

Power dismantles that shield. The Charter now trumps the protection parliamentary privilege afforded the legislative process. To get here, the SCC had to dilute parliamentary privilege, and go against recent understanding of the Crown and the separation of powers.

Let’s start with parliamentary privilege. The privileges of the houses of Parliament emerged to protect the legislature and its members from the Crown and the courts. Privilege ensured that parliamentarians and those participating in parliamentary proceedings could not be arrested or brought before the courts for what they said in Parliament. Over time, privileged served to protect the legislative process itself from the courts under the Westminster system’s version of the separation of powers. Specifically, privilege meant that parliamentarians could deliberate and work on legislation without worrying that the courts would invalidate a bill before it became law. Privilege allowed the legislature to perform its constitutional functions free from interference by another branch of the state. Once a law was granted royal assent, the courts could review the legislation for constitutionality, but not when the bill was not yet law. Privilege thus allowed Parliament to fulfill its constitutional role, undisturbed by the courts, who would get their say after the legislature had done its part.

Privilege has had an uneasy relationship with the Charter. Since privilege was incorporated into the CA1867 in section 18, it had a constitutional basis in Canada. This meant that it was technically on an equal footing with the Charter. Given that one part of the Constitution of Canada shouldn’t be able to invalidate another part, the courts recognized that privilege and the Charter had to coexist as equal constitutional provisions. In practice, this meant that the courts didn’t review proceedings in Parliament for Charter compliance. This didn’t mean that everything that happened within Parliament was beyond the Charter’s reach, but what belonged to proceedings covered by privilege were. Privilege also protected the houses of Parliament from civil suits, such as one the one brought by Senator Mike Duffy against the Senate.

In a 2018 SCC case, Mikisew Cree First Nation v. Canada (Governor in Council), it was further found the Crown’s duty to consult Indigenous peoples did not apply to the legislative process in Parliament. As the majority found in Mikisew:

Longstanding constitutional principles underlie this reluctance to supervise the law‑making process. The separation of powers is an essential feature of Canada’s Constitution. It recognizes that each branch of government will be unable to fulfill its role if it is unduly interfered with by the others. Recognizing that a duty to consult applies during the law‑making process may require courts to improperly trespass onto the legislature’s domain. Parliamentary sovereignty mandates that the legislature can make or unmake any law it wishes, within the confines of its constitutional authority. Recognizing that the elected legislature has specific consultation obligations may constrain it. Parliamentary privilege also generally prevents courts from enforcing procedural constraints on the parliamentary process. Applying the duty to consult doctrine during the law‑making process would lead to significant judicial incursion into the workings of the legislature.

Brown was clearer still in Mikisew:

The entire law‑making process — from initial policy development to and including royal assent — is an exercise of legislative power which is immune from judicial interference. The making of policy choices is a legislative function, while the implementation and administration of those choices is an executive function. This precludes judicial imposition of a duty to consult in the course of the law‑making process.

The majority in Power, however, turns against this reasoning and against the coequality of parliamentary privilege and the Charter under the Constitution:

First, the principle of parliamentary sovereignty must not be confused with parliamentary supremacy. Parliamentary sovereignty does not mean that Parliament is above the Constitution; rather, Parliament remains subject to the constraints and accountability mechanisms of the Constitution, including the Charter.

The separation of powers does not mean that each branch works in isolation. The Court has never adopted a watertight system of separation but rather has always emphasized that each branch cannot exercise undue interference, which depends entirely on the circumstances and the constitutional principles engaged. Holding the legislature liable for Charter damages when it seriously misuses its legislative power does not constitute undue judicial interference in the legislative process.

To make its case, the majority in Power reduces parliamentary privilege to the protection that individual parliamentarians have in parliamentary proceedings. This upends what privilege has been up to now: a shield that the houses of Parliament enjoy as collective, corporate bodies against the courts and the executive, with the individual privileges of members are a subset of the collective privilege. In the Power majority’s words:

Parliamentary privilege cannot be subordinated or diminished by other parts of the Constitution. But Charter damages for the enactment of unconstitutional legislation are not claimed against any individual members involved in the legislative process.

How the majority in Power can reconcile its view of privilege with what was found in Mikisew about the constitutional protection Parliament enjoys when law-making is beyond me.

The Power majority’s attempt to cast this question as one about the difference between parliamentary supremacy and sovereignty is equally baffling. The coequality of privilege and the Charter was a function of the fact that both are constitutional provisions and that one part of the Constitution can’t invalidate another. Parliamentary supremacy vs sovereignty was never the issue. The argument wasn’t that privilege shielded the legislative process because Parliament is sovereign or somehow above the Constitution. It was because privilege is provided by s18 of the CA1867! The point was that s18 and the Charter are both part of the Constitution, not that Parliament is somehow supreme over the Constitution. Again: mind boggling.

Mikisew was equally important regarding another outgrowth of the 1867 constitution that Power has fudged: the nature of the Crown as the state.

The Crown is the concept of the state in Canada. As the concept of the state, the Crown is found across the branches and levels of the Canadian state. Thus, the Crown is state at both the federal and provincial levels, and the Crown is the executive power, and part of all the legislatures and the courts. Does this mean that every aspect of the state is therefore one and the same? Is the federal order of government the same as the provincial orders? Is the Crown that’s one part of Parliament the same Crown that serves as the executive power?

Mikisew provided an elegant answer to these questions, one that reflects how the Crown has evolved in the Westminster system, and in Canada specifically. While there is a single Canadian state and single Canadian Crown, it has different capacities. Thus, the federal Crown is a distinct capacity, the Crown in right of Canada, from provincial Crown, such as the Crown in right of Manitoba. This mirrors how the Crown was dealt with after 1926, when the Imperial Crown had to be distinguished between the Crown of the United Kingdom and the Crown of Canada. Making this distinction between the Canadian and British Crowns allowed them to be de facto separate state, despite being de jure unified under the single Imperial Crown. Within Canada, this same concept allows us to treat the federal government and the provincial governments as distinct entities. The Crown is the Canadian state, but we accept that what the federal Crown is separate and distinct from the provincial Crowns.

The Crown’s capacities applied within the federal order of the state, too. The Crown-in-Council is the Crown in an executive capacity, as laid out in part III of the CA1867. The Crown-in-Parliament is the Crown in a legislative capacity, as laid out in part IV of the CA1867. These distinct capacities of the Crown enabled Canada to craft its own separation of powers doctrine. The Crown in an executive capacity had duties that didn’t apply to the Crown in a legislative capacity. This allowed the courts to find that the Crown’s duty to consult Indigenous peoples applies to the Crown-in-Council, not the Crown-in-Parliament. The duty to consult could thus bind the Crown without sacrificing the protection afforded to the legislative process.

The Crown’s distinct capacities applied to its servants as well. Thus, individuals can act through distinct executive ministerial and parliamentary capacities. When a minister is exercising their executive functions and powers, they are acting in their executive capacity. When that same individual is fulfilling their parliamentary functions, they are acting in their legislative capacity. Similarly, we could distinguish Richard Wagner acting as the Chief Justice of the Supreme Court in a judicial capacity from Richard Wagner acting as the administrator of the Government of Canada in an executive capacity in the absence of a Governor General.  They are wearing two hats and are treated differently depending on which one they’re wearing.

By constitutional convention, we accept that having the individuals acting in different capacities is vital for our system of government. What we call ‘responsible government’ depends on it. It’s this conventional fusion of legislative and executive capacities that allows Cabinet to sit in Parliament while keeping the legislature and executive separate in law. Among other things, this conventional fusion but legal distinctiveness that allows us to keep the executive in place while Parliament is dissolved during an election.

These distinct legislative and executive capacities were vital for Brown’s reasoning in Mikisew. According to Brown:

The formulation and introduction of bills is protected from judicial review by the separation of powers. In order for each branch of the Canadian state — legislative, executive and judiciary — to fulfill its role, it must not be unduly interfered with by the others. Ministers of the Crown play an essential role in, and are an integral part of, the legislative process. Their dual membership in the executive and legislative branches of the Canadian state does not render their corresponding executive and legislative roles indistinguishable for the purposes of judicial review. In the instant case, federal ministers took a set of policy decisions that eventually led to the drafting of a legislative proposal, and then to the formulation and introduction of the omnibus bills in the House of Commons. All of these actions form part of the legislative process of introducing bills in Parliament and were taken by the ministers acting in a legislative capacity.  

The majority in Power blurs these distinct capacities. The distinction between Crown-in-Parliament as the legislative power and the Crown-in-Council as the executive power is diluted to get around the protection the legislative process previously enjoyed. The capacities don’t matter in this case. It’s just one Crown, one state. Hence, what happens in the legislature shouldn’t be protected, because the Crown as the state has liability, regardless of which capacity it is acting under.

Likewise, it doesn’t matter that legislating is an act done by legislators in their legislative capacity. The fact that the same individuals hold both executive and legislative capacities means that ministers in their executive capacities can be liable for what the legislature does. Forget the distinction between convention and law; the fusion provided by convention is what matters here, apparently. We can see that it’s the same person wearing different hats! (Except for when SCC justices provide royal assent to legislation in the Governor General’s stead, of course. In that case, there’s no conflict and we can totally distinguish between the capacities and how dare you ask questions or raise concerns. There’s no way SCC justices should have to recuse themselves from cases involving bills they granted assent to in the GG’s place, right?)

In the majority’s words at paras 85 and 95, the executive power and executive officials, ie the Attorney General, are liable for the what’s done by the legislative power:

But Charter damages for the enactment of unconstitutional legislation are not claimed against any individual members involved in the legislative process. The action is against the state. An action for public law damages “is not a private law action in the nature of a tort claim for which the state is vicariously liable but [a distinct] public law action directly against the state for which the state is primarily liable” (Ward, at para. 22, citing Dunlea v. Attorney-General, [2000] NZCA 84, [2000] 3 N.Z.L.R. 136, at para. 81; Henry (2015), at para. 34; see also Maharaj v. Attorney-General of Trinidad and Tobago (No. 2), [1979] A.C. 385 (P.C.), at p. 399). The nature of the remedy requires “the state (or society writ large) to compensate an individual for breaches of the individual’s constitutional rights” (Ward, at para. 22). For these reasons, the Attorney General for the Crown or a government agency is the appropriate defendant in Charter damages claims (Roach, Constitutional Remedies, at § 11:13).

The Charter demands that legislative power be constrained by constitutional rights. Courts are constitutionally obliged to hold the government accountable when it breaches such rights, including by providing meaningful remedies in the face of their violation.

In their dissent in Power, Coté and Rowe ask the majority to consider what they’re doing here. Their dissent merits being quoted at length.

On the place of parliamentary privilege in the Constitution they note:

The Constitution Act, 1867 established that parliamentary privilege, which was essential to the operation of the largely unwritten constitution of the United Kingdom, would also be part of Canada’s Constitution; the preamble states that Canada will have a Constitution similar in principle to that of the United Kingdom. Parliamentary privilege was also specifically dealt with in s. 18 of the Constitution Act, 1867, which provides that the privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada. Thus, parliamentary privilege was from the outset a component of Canada’s Constitution and continues to be so today….

Respect for the separation of powers — which has been repeatedly affirmed as a constitutional principle — precludes judicial scrutiny of the legislative process. Subordinating parliamentary privilege in order to impose s. 24(1) damages for the preparation, drafting, and enactment of legislation risks drawing the courts into a supervisory role over the legislative process.

On the intersection between privilege and capacities, Coté and Rower further observe that:

Parliamentary privilege attaches to the entire process through which legislation is developed and adopted. It extends to the range of Parliamentary actors who are involved in the legislative process. When ministers develop legislation, they act in a parliamentary capacity. Despite an inevitable overlap between executive and legislative functions inherent in their work in developing legislation, because they are engaged in the law‑making process when they develop legislation, the process is generally protected from judicial oversight….

when a conflict emerges between parliamentary privilege and another component of the Constitution, is not to read down the protections afforded by parliamentary privilege — the solution is to read the relevant constitutional components in a compatible way. It is not open to the courts to intrude upon the bona fides of parliamentary debates and proceedings. The courts have long recognized the defining significance of Parliament’s work and the need for parliamentarians to debate and develop legislation freely. Parliamentary privileges are vital to the separation of powers as they enable parliamentarians — both individually and collectively — to freely express themselves and to act on matters of importance to Canadians, including controversial public policy issues, without fear of interference from the Crown or the courts.

Finally, Coté and Rowe note the damage that the majority has inflicted on the Crown’s distinct capacities:

The theory of liability endorsed by the courts below in the instant case  elides the distinction between “the Crown” in its executive and legislative capacities. Canada’s Constitution incorporates the Westminster system of government, which was varied for a federal structure rather than a unitary state. Subsequent developments in the Constitution have built on this. In the contemporary constitutional order, the Crown acts in multiple distinct capacities, federal and provincial, as well as executive and legislative. The Crown in its executive capacity and the Crown in its legislative capacity are distinct. The Crown in its executive capacity consists of the King (through the Governor General) exercising the executive government and authority of and over Canada, as continued in the Constitution Act, 1867, s. 9. Those executive powers are, by constitutional convention, exercised by the Prime Minister, Cabinet, and public authorities in furtherance of statutory delegation of authority. The Crown‑in‑Parliament consists of the monarch (Governor General) acting in their legislative capacity. The Crown‑in‑Parliament embraces three determinative acts that are part of Parliament’s core functions as a legislative body: royal recommendation, royal consent and royal assent.

The Crown, thus, is at the heart of both the executive and legislative branches of government, but plays different roles in each. While Canada’s constitutional order envisages some overlap as to the Crown in its various capacities, the law does not recognize executive control of the legislative branch. This is consistent with the scope of parliamentary privilege and its application across the various steps in the legislative process. The preparation of legislation is a complex process involving multiple actors across government. The courts are ill‑equipped to deal with the procedural complexities of the legislative process. The distinctive roles played by the Crown reflects the separation of powers between the different branches of government, and the balance between them. This is part of the explanation as to why absolute immunity is needed for the preparation, drafting, and enactment of legislation, but not for determination of the validity of legislation once it is enacted or the legality of acts taken pursuant to the legislation.

Moreover, the Crown in its executive capacity cannot be liable for the preparation, drafting, or enactment of legislation, as it is not part of the legislative process. Rather it is the Crown‑in‑Parliament which is so; legislation is approved by the Commons and the Senate, followed by royal assent. Seeking damages from the Crown in its executive capacity for the preparation, drafting, and enactment of legislation is conceptually incoherent. The Attorney General of Canada is not the legal representative of Parliament and cannot represent Parliament in legal proceedings.

To conclude, therefore, Power privileges (pun intended) the ideals of the CA1982 over the constitutional foundations of CA1867. To ensure that parliamentary privilege could not be used as an immunity against Charter remedies, the majority went against rulings as recent as 2018 in Mikisew, went against the principle that one part of the Constitution shouldn’t invalidate another, and dissolved the essential distinction made between the Crown’s capacities and those of legislative and executive offices.

It’s all rather disconcerting.