In a profoundly troubling ruling rendered Friday, the Supreme Court of Canada upended cornerstone principles of this country’s parliamentary democracy. The judgment, delivered in Canada (Attorney General) v. Power, entitles the judges to award compensation if Parliament and the provincial legislatures exercise their legislative powers in a manner that the courts deem unconstitutional. Mired in conceptual confusion, it drastically expands the scope of judicial review from determining the constitutionality of duly enacted laws into uncharted territory: supervising the legislative process by which those laws are first deliberated and drafted.
The decision is perhaps one of the Supreme Court’s most expensive mistakes in recent history. More starkly, it undermines the authority of Parliament and the provincial legislatures, with damaging implications for democratic governance. In essence, it subordinates legislatures to judicial power, raising once again the question of who should exercise public power in Ottawa.
At the centre of the case is Section 24(1) of the Charter, which permits a person whose rights were denied to obtain an “appropriate and just remedy” through the courts. The plaintiff, Joseph Power, was suspended from employment when his past criminal convictions resurfaced. He attempted to obtain a criminal pardon, but was unsuccessful because Parliament enacted two laws, the Limiting Pardons for Serious Crimes Act and the Safe Streets and Communities Act, rendering him ineligible. This part of the legislation was subsequently determined to be unconstitutional in unrelated litigation. So Power went to the courts, invoking Section 24(1) and seeking compensation from the federal government.
It is settled law that a person may seek compensation for unconstitutional and harmful acts by governmental agents, that is, agents of the executive branch of the state. In the 2010 case of Vancouver v. Ward, for example, the Supreme Court awarded Charter damages to a man who was wrongly arrested and strip-searched, whom the police mistakenly identified.
But crucially, Friday’s decision in Power goes much further. It holds the government liable for compensation not only when agents of the executive act wrongfully, but for acts of the legislature. According to Chief Justice Richard Wagner and Justice Andromache Karakatsanis, writing for the majority of the Supreme Court, the courts are entitled to require the government to pay compensation for legislative acts that are “clearly wrong, in bad faith or an abuse of power.”
The court’s reasoning exhibits a striking misapprehension of Canada’s constitutional architecture and the system of parliamentary democracy upon which it is founded. In the Westminster model of responsible government, it is Parliament, not the courts, that is charged with deliberating upon the state of the law and changing it where warranted. As a corollary of this responsibility, parliamentary processes have traditionally been held to be autonomous and immune from judicial interference. Hence, for instance, parliamentary privilege enables MPs to speak in the House of Commons, without the looming threat of defamation suits or other legal action. The intelligent exercise of legislative power requires legislative freedom to deliberate and act, uninhibited by post-hoc damages awards.
In our tradition of responsible government, the government and its ministers are accountable for their law-making conduct not to the judicial process, but to the House of Commons and the electorate at large. Indeed, judicial supervision of the legislative process is entirely foreign to the Westminster tradition. This type of liability never existed at common law, nor is it found in the United Kingdom. As the Supreme Court itself affirmed in the 1981 Patriation Reference: “Courts come into the picture when legislation is enacted and not before.” The remedy for wrongful or imprudent legislative acts is not at the courts, but the ballot box.
Unmoored from foundational constitutional principle, the mischiefs of the Supreme Court’s ruling are manifold. What does it mean to say that Parliament has acted “in bad faith” or committed “an abuse of power?” It is axiomatic that a law is enacted not by individual legislators, but by Parliament as a whole. In fact, as the court acknowledged long ago, “the intent of particular members of Parliament is not the same as the intent of Parliament as a whole.” To attribute the good or bad faith of any individual MP or cabinet minister to Parliament itself is to commit the fallacy of composition. Nor, for that matter, do Chief Justice Wagner and Justice Karakatsanis provide any justification for why the executive branch should be liable for acts committed by the legislative branch.
As a result, lawmakers — and the public purse — are at the peril of a judge passing judgment on parliamentary deliberations using the ponderous standard of a “clearly wrong” or “bad faith” act. This is likely to stymie Parliament’s capacity to act for the common good. After all, with Canadian courts increasingly embracing and giving “benediction” to innovative, expansionist interpretations of Charter rights, what is clearly constitutional one day could well be “clearly wrong” the next.
Consider, for instance, the prospects for criminal justice reform, which forms part of Conservative Leader Pierre Poilievre’s policy agenda. If the judicial invalidations of Harper-era criminal laws provide any indication, such reforms will not only have to contend with overreaching interpretations of Charter rights. Legislative action on criminal sentencing, bail reform and drug abuse — many of which will certainly challenge judicial orthodoxies under the Charter — could now be deemed “clearly wrong” by judges and would run the standing risk of what are, effectively, monetary sanctions by the courts.
The notion of a “dialogue” between legislatures and the judiciary, often raised to blunt criticisms of Charter decisions, is a dead letter when the courts can award damages for legislative disagreements with judicial interpretations of those rights.
Ironically, then, the Power judgment only underscores the case for routine invocation of Section 33, the “notwithstanding” or “parliamentary supremacy” clause of the Charter. For it is the remaining mechanism that allows Parliament to respond to such undisciplined judicial decision-making. Where the courts undermine legislative authority and purport to supervise the parliamentary process, it should hardly be surprising if Parliament acts to restore the rightful allocation of constitutional responsibility.
National Post
Kerry Sun is a doctoral student at the University of Oxford and Research Associate at UBC’s Centre for Constitutional Law and Legal Studies.