Canada (Attorney General) v. Power

Canada (Attorney General) v. Power
Collection
Supreme Court Judgments
Date
2024-07-19
Neutral citation
2024 SCC 26
Case number
40241
Judges
Wagner, Richard; Karakatsanis, Andromache; Côté, Suzanne; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas; Jamal, Mahmud; O’Bonsawin, Michelle; Moreau, Mary
On appeal from
New Brunswick
Subjects
Constitutional law
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: Canada (Attorney General) v. Power, 2024 SCC 26
Appeal Heard: December 7, 2023 Judgment Rendered: July 19, 2024 Docket: 40241
Between:
Attorney General of Canada Appellant
and
Joseph Power Respondent
- and -
Attorney General of Ontario, Attorney General of Quebec, Attorney General of Nova Scotia, Attorney General of New Brunswick, Attorney General of Manitoba, Attorney General of British Columbia, Attorney General of Prince Edward Island, Attorney General of Saskatchewan, Attorney General of Alberta, Attorney General of Newfoundland and Labrador, Fisher River Cree Nation, Sioux Valley Dakota Nation, Manto Sipi Cree Nation, Lake Manitoba First Nation, Quebec Native Women Inc., Speaker of the Senate, David Asper Centre for Constitutional Rights, Canadian Civil Liberties Association, Canadian Constitution Foundation, Queen’s Prison Law Clinic, John Howard Society of Canada, British Columbia Civil Liberties Association, West Coast Prison Justice Society and Speaker of the House of Commons Interveners
Coram: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ.
Joint Reasons for Judgment: (paras. 1 to 119)
Wagner C.J. and Karakatsanis J. (Martin, O’Bonsawin and Moreau JJ. concurring)
Reasons Dissenting in Part: (paras. 120 to 253)
Jamal J. (Kasirer J. concurring)
Dissenting Reasons: (paras. 254 to 383)
Rowe J. (Côté J. concurring)
Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
Attorney General of Canada Appellant
v.
Joseph Power Respondent
and
Attorney General of Ontario,
Attorney General of Quebec,
Attorney General of Nova Scotia,
Attorney General of New Brunswick,
Attorney General of Manitoba,
Attorney General of British Columbia,
Attorney General of Prince Edward Island,
Attorney General of Saskatchewan,
Attorney General of Alberta,
Attorney General of Newfoundland and Labrador,
Fisher River Cree Nation, Sioux Valley Dakota Nation,
Manto Sipi Cree Nation, Lake Manitoba First Nation,
Quebec Native Women Inc., Speaker of the Senate,
David Asper Centre for Constitutional Rights,
Canadian Civil Liberties Association,
Canadian Constitution Foundation, Queen’s Prison Law Clinic,
John Howard Society of Canada,
British Columbia Civil Liberties Association,
West Coast Prison Justice Society and
Speaker of the House of Commons Interveners
Indexed as: Canada (Attorney General) v. Power
2024 SCC 26
File No.: 40241.
2023: December 7; 2024: July 19.
Present: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ.
on appeal from the court of appeal for new brunswick
Constitutional law — Charter of Rights — Remedy — Damages — Legislation enacted by Parliament later found unconstitutional — Plaintiff commencing action against Crown for damages for breach of Charter rights caused by enactment of legislation — Whether damages against Crown can ever be appropriate remedy under Charter for enactment of legislation later declared unconstitutional — Canadian Charter of Rights and Freedoms, s. 24(1).
In 1996, P was convicted of two indictable offences. He was sentenced and served his time. After his release, P applied for a record suspension but his application was denied. At the time of his conviction, persons convicted of indictable offences could apply for a record suspension five years after their release. However, the transitional provisions of legislation enacted since then by Parliament retroactively rendered him permanently ineligible for a record suspension. The transitional provisions were declared unconstitutional by courts in other matters and Canada concedes that their retrospective application violates s. 11(h) and (i) of the Charter in a manner that cannot be justified by s. 1. P filed a notice of action seeking, inter alia, damages under s. 24(1) of the Charter against Canada for the breach of his rights caused by the enactment of the transitional provisions. In response to P’s action, Canada brought a motion on a question of law, asking two questions:
1. 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?
2. 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 answered “yes” to both questions, finding that the government was entitled to only a limited immunity from Charter damages for the enactment of unconstitutional legislation. The Court of Appeal dismissed Canada’s appeal, agreeing with the motion judge that the government does not enjoy absolute immunity in exercising its legislative powers.
Held (Kasirer and Jamal JJ. dissenting in part and Côté and Rowe JJ. dissenting): The appeal should be dismissed.
Per Wagner C.J. and Karakatsanis, Martin, O’Bonsawin and Moreau JJ.: The questions should both be answered in the affirmative. The state is not entitled to an absolute immunity from liability for damages when it enacts unconstitutional legislation that infringes Charter rights. Rather, as the Court held in Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13, [2002] 1 S.C.R. 405, the state may be liable for Charter damages if the legislation is clearly unconstitutional or was in bad faith or an abuse of power. An absolute immunity fails to properly reconcile the constitutional principles that protect legislative autonomy, such as parliamentary sovereignty and parliamentary privilege, and the principles that require the government be held accountable for infringing Charter rights, such as constitutionality and the rule of law. Each of these principles constitutes an essential part of Canada’s constitutional law and they must all be respected to achieve an appropriate separation of powers. By shielding the government from liability in even the most egregious circumstances, absolute immunity would subvert the principles that demand government accountability.
Sections 32(1) and 24 of the Charter, along with s. 52(1) of the Constitution Act, 1982, entrench the court’s role in holding the government to account for Charter violations. Pursuant to s. 32(1), the federal and provincial legislatures are subject to Charter scrutiny. A declaration of invalidity under s. 52(1), the first and most important remedy when dealing with unconstitutional legislation, allows courts to protect Charter rights while respecting the distinct role of the legislature in Canada’s constitutional order. As for s. 24(1), it provides a personal remedy in the sense that it is specific to the violation of the applicant’s rights; it is a unique public law remedy against the state that should not be assimilated to the principles of private law remedies. An award of damages as a s. 24(1) remedy against the state for exceeding its legal powers has long been recognized as an important requirement of the rule of law. In Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28, the Court set out a four‑step test for determining whether damages are an appropriate and just remedy: (1) whether a Charter right has been breached; (2) whether damages would fulfill one or more of the related functions of compensation, vindicating the right, or deterring future breaches; (3) whether the state has demonstrated that countervailing factors defeat the functional considerations that support a damage award and render damages inappropriate or unjust; and (4) the appropriate quantum of damages.
While there is a general presumption against combining remedies under ss. 24(1) and 52(1), there is no categorical restriction. The existence of an alternative remedy is a countervailing consideration under the Ward test; however, provided an award of Charter damages is not duplicative, the potential to combine declarations and damages must remain available in situations where a declaration would fail to satisfy the functional need for compensation, vindication or to meaningfully deter future breaches. While good governance concerns may defeat an award of damages, the mere suggestion that damages will have a chilling effect on government is not sufficient to defeat an applicant’s functional entitlement to Charter damages established at steps one and two of the Ward test. Damages may promote good governance by encouraging constitutional compliance and deterring Charter breaches. Limited immunity for the state for the enactment of legislation subsequently declared unconstitutional is consistent with and best reconciles the constitutional principles underpinning both legislative autonomy and accountability: parliamentary sovereignty, the separation of powers, parliamentary privilege, the broad and purposive approach to rights and remedial provisions in the Charter, and constitutionalism and the rule of law.
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 supremacy of the Constitution in relation to Parliament is well recognized in each application of s. 52 of the Constitution Act, 1982. Limited immunity does not impair Parliament’s power to make and repeal laws within the confines of the Constitution.
Second, limited immunity is consistent with the separation of powers. 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. Rather, damages are an after‑the‑fact remedy for a Charter violation. However, respect for the legislative role requires a high threshold for liability for the enactment of unconstitutional legislation.
Third, courts can respect parliamentary privilege when applying the limited immunity threshold. Parliamentary privilege provides the legislature with the tools to execute its core functions. It operates by shielding some areas of legislative activity from external review: for example, parliamentary privilege gives members of the legislature the freedom of speech necessary to carry out their law‑making power without fear of liability, and protects against the compellability of certain types of evidence, such as the testimony of sitting members of Parliament. The protection of these processes is fundamental to Canada’s constitutional structure and the functioning of its democracy. 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. The action is directly against the state. The basis for the state’s liability for damages under s. 24(1) is the breach of the claimant’s Charter right. The state’s conduct within the legislative process is not an independent basis for liability but rather informs whether damages are an appropriate and just remedy for the breach caused by the enactment of the Charter‑infringing law. The state’s liability for unconstitutional legislation does not engage members’ personal immunity for parliamentary speech. Nor does it interfere with Parliament’s power to control its own debates and proceedings, or dictate how the legislative function is exercised. Parliamentary privilege must not be extended beyond the scope necessary to protect the legislature’s core democratic functions. However, parliamentary privilege may prevent claimants from adducing certain types of evidence relating to the legislative process and hence limit a claimant’s practical ability to satisfy the threshold in a given case. But this possibility does not foreclose the availability of such a cause of action in principle.
Fourth, an absolute immunity does not accommodate the principles recognized in the jurisprudence on constitutional remedies. It leaves little room for the principles that underpin legislative accountability — including the broad and purposive approach to rights and remedial provisions in the Charter, as well as constitutionalism and the rule of law. An absolute immunity would protect the government from any claim for damages for any unconstitutional legislation, no matter how egregious, and allow a narrow set of constitutional interests to dominate the analysis.
A high bar for immunity, set by the Court in Mackin, has been good law for over two decades. It has resulted neither in chilling good governance, nor in a floodgate of claims against the state for damages. Although the Court may depart from precedent where there is a compelling reason to do so, there are no compelling reasons to overrule Mackin. The Mackin qualified immunity threshold is assessed at step three of the Ward framework and can be restated as follows: the good governance defence will prevail unless the law was clearly unconstitutional, in bad faith or an abuse of power. If the threshold is not met, the balance of constitutional principles tilts in favour of state immunity. In such cases, the constitutional imperative that the government be afforded the autonomy to govern effectively will defeat the claim to damages.
Per Kasirer and Jamal JJ. (dissenting in part): The appeal should be allowed in part and the first question answered in the negative. The Crown enjoys an absolute immunity from damages under s. 24(1) of the Charter when preparing and drafting primary legislation later found to be unconstitutional. Such conduct is protected from judicial interference by established categories of parliamentary privilege, namely freedom of speech and control over parliamentary proceedings. The courts have no jurisdiction to review or assign liability for the exercise of these established categories of parliamentary privilege. The second question should be answered in the affirmative, but in a qualified manner: damages may only be available under s. 24(1) for harms flowing from “clearly unconstitutional” enactments. Mackin should be clarified to eliminate bad faith and abuse of power in enacting primary legislation as grounds for damages under s. 24(1) of the Charter, as they inevitably trench on established categories of parliamentary privilege. They would also strain the separation of powers by asking the courts to entertain non‑justiciable questions. The Crown may, however, be liable in damages under s. 24(1) for harms flowing from “clearly unconstitutional” enactments. The clearly unconstitutional threshold is a nuanced standard that appropriately protects the autonomy of Parliament and the limited immunity necessary for legislators to carry out their work, while employing a purposive approach to s. 24(1) remedies to vindicate Charter rights.
The doctrine of parliamentary privilege refers to the sum of the privileges, powers, and immunities of the federal Houses of Parliament or provincial legislative assemblies, and of their individual members, that are necessary to their capacity to function as legislative bodies. Parliamentary privilege helps Canada’s constitutional democracy maintain the fundamental separation of powers between the legislative, executive, and judicial branches of government, by shielding some areas of legislative activity from external review. Parliamentary privilege is part of the Constitution of Canada. Since one part of the Constitution cannot be abrogated or diminished by another part of the Constitution, actions or conduct protected by parliamentary privilege are not subject to the Charter. Once the existence of a category of parliamentary privilege is established, conduct or activities that are themselves an exercise of that privilege are not subject to review by the courts, even when such conduct or activities are alleged to violate the Charter. This means that such conduct or activities cannot be the basis of a Charter breach and cannot give rise to a Charter remedy such as damages under s. 24(1).
In the instant case, three uncontroversial points regarding the questions at issue guide the analysis. First, there is no debate that the questions, which inquire as to the Crown’s liability in its executive capacity, refer to the liability of the Canadian government qua executive, to be distinguished from the legislature. Second, there is no debate that the Charter, including s. 24(1), applies to Parliament and the government of Canada, pursuant to s. 32(1)(a) of the Charter. Third, remedies under s. 52(1) of the Constitution Act, 1982 and s. 24(1) of the Charter can be combined. A remedy will be appropriate and just within the meaning of s. 24(1) when it furthers the general objectives of the Charter by compensating the plaintiff for any loss, vindicating rights, or deterring future breaches.
Both questions before the Court raise distinct parliamentary privilege considerations relating, in question 1, to the legislative process of preparing and drafting legislation, and in question 2, to the grounds on which legislation, once enacted, may be reviewed. Concerning the first question, the Crown cannot be liable for preparing and drafting legislation. Government officials and Ministers involved in preparing and drafting legislation enjoy the parliamentary privilege of freedom of speech for words or conduct connected to their legislative work. Whether the privilege applies is not determined by the nature of the relevant individual, but by the activities in which they are engaged and the necessity of those activities to core legislative functions. Robust legislative debate, which falls within the privilege over freedom of speech, is the lifeblood of Parliament’s day‑to‑day business. Exposing the Crown, in its executive capacity, to liability in damages for the conduct of government officials and Ministers in preparing and drafting legislation would inevitably intrude upon this category of privilege.
As with the free speech privilege, exposing the Crown to liability for the words or conduct of government officials and Ministers in preparing and drafting legislation would unavoidably trench on the established privilege over the proceedings of Parliament. This privilege is broad: it includes everything said or done by a Member in the exercise of their functions as a Member in committees of either House, as well as everything said or done in either House in the transaction of parliamentary business. It also extends to matters taking place outside the houses of Parliament. The words and conduct of Members who are occupied in something closely and necessarily related to a proceeding in Parliament are accorded absolute privilege. It cannot reasonably be suggested that preparing and drafting legislation is not closely and necessarily related to proceedings in Parliament.
Parliamentary privilege is a threshold jurisdictional issue under the Ward framework regarding Charter damages under s. 24(1). If the existence of a recognized category of parliamentary privilege is proved, there can be no judicial review of the exercise of the privilege, even on Charter grounds. This conclusion is a direct consequence of the constitutional nature of parliamentary privilege and its status as a rule of curial jurisdiction. The privilege cannot be the subject of a judicial balancing as to whether countervailing good governance concerns at step three of Ward defeat the functional considerations that support a damages award and render damages inappropriate or unjust. Instead, the existence of the privilege means that the courts lack jurisdiction to undertake any further inquiry. In addition, the Crown in its executive capacity cannot be held liable for the work of Ministers and other government officials in preparing and drafting legislation because, in doing so, they act in a legislative rather than an executive capacity. Such conduct is not Crown conduct that can be attributed to the executive for which the Crown can be liable in an action brought under s. 23(1) of the Crown Liability and Proceedings Act.
With respect to the second question, if it is interpreted as relating to whether an enactment that violates the Charter can ever give rise to Charter damages under s. 24(1) after a bill has become law and the legislative process is complete, the answer is a qualified “yes”. The limited immunity rule in Mackin should be modified to clarify that the Crown can be liable in damages for the breach of Charter rights caused by legislation only when the legislation is shown to have been “clearly unconstitutional” at the time it was enacted. There are compelling reasons to revisit Mackin. None of the authorities cited in Mackin support awarding Charter damages against the Crown for harms caused by unconstitutional primary legislation. The test enunciated in Mackin also conflicts with the doctrine of parliamentary privilege, as well as the separation of powers and principles of justiciability. None of these points was argued in Mackin, and the Court did not consider them in its reasons.
The bad faith and abuse of power thresholds in Mackin are inappropriate thresholds in respect of damages under s. 24(1) of the Charter for unconstitutional primary legislation because they conflict with the doctrine of parliamentary privilege and principles of justiciability, and strain the separation of powers. The doctrine of parliamentary privilege prevents courts from passing judgment on the process of enacting legislation. Scrutinizing legislation for evidence of bad faith or abuse of power, even once the law has already been enacted, would inevitably pull courts into judging the legislative process, which is beyond their jurisdiction. The courts cannot put Parliament “on trial”.
In addition, inquiring into whether primary legislation was in bad faith and an abuse of power as standards for awarding Charter damages would threaten the separation of powers by requiring the courts to consider questions that are not justiciable. Justiciability refers to a set of judge‑made rules, norms, and principles delineating the scope of judicial intervention in social, political, and economic life. A court may decline to answer a question on the ground of justiciability when doing so would take it beyond its proper constitutional role, or if the court cannot provide an answer within its area of expertise. Once legislation has been found to be unconstitutional, there is no legal yardstick to measure whether the legislation was in bad faith or involved an abuse of power. Asking whether the legislation is in bad faith or constitutes an abuse of power requires the court to pass judgment on the content of the legislation on grounds other than its constitutionality, which strays into evaluating the wisdom or policy of the law and is not the proper role of the courts. The appropriate use of Hansard as proof of historical context or purpose in statutory interpretation must be distinguished from its inappropriate use to prove that legislation is in bad faith. The former does not impugn the freedom of speech or the integrity of parliamentary proceedings; the latter does.
In the context of legislative enactments, absolute immunity overshoots what is required to protect parliamentary privilege and the separation of powers. These constitutional imperatives can be respected by a test that focuses on whether the enactment itself clearly violated established constitutional norms at the time it was enacted. A qualified or limited immunity preserves the courts’ power under s. 24(1) to craft remedies that meaningfully vindicate Charter rights, while ensuring that effective government is not jeopardized by overbroad state liability that trenches on parliamentary privilege. To overcome the good governance concerns at step three of the Ward framework, a claimant must show that the legislation was clearly unconstitutional in the sense that the unconstitutionality was readily or obviously demonstrable at the time the legislation was enacted and could not be subject to any serious debate. Such a standard focuses on legislative outputs rather than legislative inputs, and on how the impugned legislation must be significantly wide of the constitutional mark before damages will be an appropriate and just remedy under s. 24(1) of the Charter. The clearly unconstitutional standard allows courts to consider whether legislation has an unconstitutional purpose as a factor in a damages assessment, and it is an appropriately high but not insurmountable bar for claimants to meet. If an enactment was clearly unconstitutional at the time of enactment, this should be readily or obviously demonstrable.
Per Côté and Rowe JJ. (dissenting): The appeal should be allowed and both questions answered in the negative. The preparation, drafting, and enactment of legislation necessarily implicates parliamentary privilege, which is fundamentally at odds with awarding damages against the Crown in the manner sought. Both parliamentary privilege and the Charter constitute components of the Constitution of Canada. Neither one subordinates the other. The Charter must, as a matter of constitutional law, be given effect in a manner that is compatible with parliamentary privilege. Parliamentary privilege is rooted in the earliest chapters of Canada’s constitutional history, and reflects an inherited legacy of struggle between the Crown and Parliament in the United Kingdom, one that reaches back to Parliament’s origins. The Court has a responsibility to preserve the inheritance of Canada’s constitutional order. It should not be discarded, and parliamentary privilege should not be subordinated to s. 24(1) of the Charter. To do so would be to depart from precedent and to do so unwisely.
Canada’s constitutional arrangements (aside from Aboriginal and treaty rights) consist of four written and unwritten components: the Constitution Acts of 1867 and 1982, constitutional conventions, Crown prerogative and parliamentary privilege. The unwritten components, including parliamentary privilege, fulfill a necessary role in Canada’s constitutional order — they are no less part of the Constitution than are the two Constitution Acts. In addition, there are underlying (unwritten) principles that contribute to giving effect to Canada’s constitutional arrangements. These principles are not themselves components of the Constitution; rather, they assist in interpreting the Constitution and arriving at answers to questions not otherwise provided for in the Constitution. They do not have a substantive policy content and cannot be the basis to challenge the validity of legislation. Norms expressed in the underlying/unwritten principles of constitutionalism and the rule of law do not constitute a basis to override parliamentary privilege, any more than they can constitute a basis to invalidate legislation. Parliamentary sovereignty and the separation of powers (plus constitutionalism and the rule of law) are underlying/unwritten principles that inform interpretation of the constituent components of the Constitution, but parliamentary privilege is different in that it is itself part of the Constitution. This distinction is fundamental.
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. Unwritten components of the Constitution — including parliamentary privilege — have continued to be given faithful effect because they continue to play a crucial role in Canada’s constitutional order.
Chief among the functions of parliamentary privilege is that it ensures that Parliament and provincial legislatures are able to carry out their work effectively. The purpose of privilege is to recognize Parliament’s exclusive jurisdiction to deal with complaints within its privileged sphere of activity. A two‑step process applies when courts are confronted with a privilege claim. First, the court must assess whether the existence and scope of the claimed privilege have been authoritatively established. If so, then the court’s inquiry stops. The second step, which is not relevant in the instant case given the established nature of the privileges in question, requires the court to assess the necessity of the privilege asserted.
Parliamentary privilege ensures that the legislature is safeguarded from interference by the other two branches of the state, the executive and the judiciary. Intervention by the executive or by the courts in the working of legislatures would inevitably create delays, disruption, uncertainties and costs which would hold up the nation’s business and on that account would be unacceptable.
Parliamentary privilege also structures the dialogue between the courts and the legislature. By delineating the scope of what is open to review, this privilege ensures that legislatures are able to respond to decisions in which courts give meaning to the Constitution, and where necessary, invalidate legislation. The dialogical nature of constitutional development in Canada is reflected in the “second look” cases in which the Court has wrestled with what weight to afford Parliament’s attempt to reformulate legislation in response to a decision under s. 52(1). Consistent in these cases is the principle that Parliament should not be discouraged from trying again to reformulate legislation so that it is consistent with the Charter.
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.
In the instant case, the privileges invoked are the House’s exclusive control over its proceedings, and the privilege related to freedom of speech. They are both well established, and are rooted in art. 9 of the Bill of Rights of 1689, which established that the freedom of speech and debates, or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament. It has long been accepted that these privileges must be held absolutely and constitutionally if they are to be effective; the legislative branch of government must enjoy a certain autonomy which even the Crown and the courts cannot touch. Judicial consideration of these privileges shows that the broad shelter afforded by the operation of parliamentary privilege is agnostic towards the content of what is protected. It matters not what was said or what the impugned conduct involved — what matters is whether the conduct in question relates to the assembly’s ability to fulfill its constitutional functions.
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.
While the existence and limits of parliamentary privilege are justiciable, their operation is not. Once a court finds that a privilege exists and describes its extent, the court’s role ends. It is for the legislature itself to determine whether the exercise of the privilege was proper; such matters are not reviewable by the courts. The wide berth given to parliamentary privilege has been reflected in the manner in which the Court has approached apparent conflicts between parliamentary privilege and other components of the Constitution. The solution, 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.
The Charter did not negate the fundamental constitutional tenets upon which British parliamentary democracy rested or mark a “clean break” with existing constitutional structures that came before the passage of the Constitution Act, 1982. Instead, the passage of the Charter must be understood within the broader context of Canada’s constitutional development. Many consider the Charter to be the paramount constitutional instrument. This is incorrect. All parts of the Constitution must be read together, and no one can be subordinated to the others. That said, the Charter was accompanied by a revolutionary transformation of sorts, in the nature and extent of demands by litigants for courts to use their authority to advance goals that those litigants had not achieved through the electoral process. But it is not for the courts to pass upon the policy or wisdom of legislative will or question the wisdom of enactments which are within the competence of the Legislatures. Temperance and moderation in the face of such invitations remain fundamental to the appreciation by the judiciary of its own position in the constitutional scheme.
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.
Mackin does not resolve the question as to how parliamentary privilege operates where someone seeks s. 24(1) damages for the preparation, drafting, and enactment of legislation. The Court in Mackin did not turn its attention to this question nor has Mackin been applied in this way. The Court cannot rely on a passing reference in Mackin as the basis to depart from a substantial body of jurisprudence on parliamentary privilege and to abandon the fundamental principle that components of the Constitution do not negate one another. Mackin cannot be the basis for deciding that s. 24(1) damages can apply against the Crown in its executive capacity for the preparation, drafting, and enactment of legislation. Parliamentary privilege was never mentioned, much less discussed. To the extent, if any, that Mackin’s brief reference to damages for the mere enactment of a law represents a holding of the Court, it should be treated as weak precedent at most. Accordingly, the matter being considered in the instant case must be seen as novel for the Court’s consideration.
To remain faithful to the Court’s jurisprudence, the Court’s role must be limited to establishing the existence of the privileges in question, rather than inquiring into their operation. Parliamentary privilege stands without exception. 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.
Absolute immunity is necessary. Parliamentary privilege is like an eggshell; one cannot break it just a little. In order for the Crown in its executive capacity to be held liable for the preparation, drafting, and enactmen