Power, the Attorney General, and ‘wicked advisors’

Rather than diminishing official capacities, the Supreme Court could have leveraged them

Last week, I expressed my dismay at the Supreme Court of Canada’s ruling in Power.

My concerns were as follows:

·      Power goes against Mikisew’s distinction between the legislative and executive capacities of the Crown and ministers/parliamentarians.

·      In so doing, Power finds that the Crown-in-Council and executive officers can be liable for legislation enacted by the Crown-in-Parliament and parliamentarians.

·      To get around parliamentary privilege, Power reduces it to the freedoms of individual parliamentarians, rather than the collective shield the houses of Parliament enjoy to ensure that they can fulfil their constitutional functions free from interference by the courts and the executive.

Those who support the majority’s ruling in Power argue that there should be no absolute immunity for the state when it passes unconstitutional laws that violate the Charter rights. Allowing parliamentary privilege, and the different capacities of the Crown and minister/parliamentarians, to stand in the way of state liability would be unacceptable and contrary to other precedents, notably the 2002 SCC ruling in Mackin regarding damages as Charter remedies.

I acknowledge the importance of this normative argument. However, I don’t think the majority in Power had to undermine parliamentary privilege to get there. The Power majority could have been more creative, ensuring state liability while preserving parliamentary privilege and distinct capacities of the Crown. To do so, the SCC could have better leveraged the office of the Attorney General and the old school concept of the ‘wicked advisor’.

The Attorney General is a unique office of state. As the chief law officer of the Crown, the Attorney General has both executive and judicial functions. Indeed, we can say that the Attorney General’s official capacity bridges and exists in both the executive and the judiciary. As per the Department of Justice Act, the Attorney General is an officer of the Crown as the executive power. Yet, the Attorney General also acts as the Crown’s litigator and is ultimately responsible for federal prosecutions. In this sense, the Attorney General is part of the judicial system. The Attorney General, we might say, has a dual executive-judicial capacity.

A possible solution to the Power dilemma would have been to find that the Attorney General is involved in proposing legislation as well. This would not be a separate legislative capacity, as Mikisew laid out, but a third co-capacity alongside the Attorney General’s executive-judicial capacity. In effect, Power could have specified that the Attorney General is also a dual executive-legislative officer who can be liable for unconstitutional legislation brought before Parliament.

This is what the majority in Power found anyway. The problem with the way the majority in Power did it, though, was by making the Attorney General liable for a legislative act of Parliament. What they could have done was refine Mikisew to specify that the Attorney General, in a dual executive-legislative capacity, can be liable for proposing unconstitutional legislation. Whereas Mikisew held that legislating is a unique legislative act, and thus protected by parliamentary privilege, Power could have held that there is a dual executive-legislative officer involved in proposing government bills, and that this officer should be liable for unconstitutional legislation in exceptional cases.

Rather than robbing Parliament of its agency and the constitutional protection of privilege, Power could have found that Parliament relies on improper advice from the Attorney General when it enacts unconstitutional legislation. Put simply, the argument would be that Parliament should be able to rely on the Attorney General’s assurance that a government bill is constitutional, and if that assurance proves to have been made in bad faith, rather than simply in error, then the Attorney General might be liable.

This would be a modern version of the ‘wicked advisors’ argument used by medieval barons to justify their rebellions against the Crown. Parliamentary privilege, like the medieval Crown’s majesty, would be left intact, while the advisors would be blamed. Rather than breaking down the protection of parliamentary privilege or sidestepping the distinct executive and legislative capacities of the Crown, Power could have made a slight modification to Mikisew’s finding that law-making is wholly parliamentary. By recognizing that the Attorney General has a triple legislative-executive-judicial capacity, the court could have avoided its diminishment of parliamentary privilege and conceptually barren presentation the state. This would preserve the shield parliamentary proceedings from judicial interference and privilege wouldn’t need to be reduced to the freedoms of individual members.  

This solution would address another conundrum that Power has created: what to do about Private Member’s Bills (PMBs)? Specifically, Power suggests that the executive should be liable for legislation that it hasn’t even proposed. While this may satisfy the normative argument that someone should be liable for grossly unconstitutional legislation, PMBs should arguably be an exception, since they are parliamentary in origin and enactment, whereas the genus of government bills belongs with the executive by convention.

Both defenders and critics of Power may retort that I’m proposing a distinction without a difference. If the Attorney General is liable either way, what’s the difference? And aren’t I doing the same thing that the Power majority did, blurring the distinction between legislative and executive acts? Maybe. But I’d argue that this solution would have been more respectful of parliamentary privilege and a more elegant way of explaining how the executive could be liable for grossly unconstitutional legislation.

State liability for unconstitutional legislation was likely inevitable, but the court could have landed there without doing as much damage to Parliament and the Crown.