Who Decides, Canadian Edition: Canada (Attorney General) v. Power

A Classical Critique

The New Digest is delighted to welcome back Stéphane Sérafin and Kerry Sun. Professor Sérafin is Assistant Professor in the Common Law Section, Faculty of Law, University of Ottawa. Kerry Sun is a doctoral student at Merton College, Oxford and Fortescue Scholar with the Canterbury Institute.

On July 19^th, the Supreme Court of Canada released its judgment in the aptly-named case of Canada (Attorney General) v. Power. In a controversial expansion of judicial power, a majority of the Court took the unprecedented step of permitting damages awards against the executive branch (the Crown-in-Council, or as it is more commonly called, “the government”), if the legislative branch (the federal Parliament or a provincial legislature) enacts legislation later deemed by courts to violate the Canadian Charter of Rights and Freedoms in a manner that is “clearly wrong, in bad faith or an abuse of power.”

As one of us has written elsewhere, this decision subordinates the legislative process to judicial supervision while upending basic precepts of the Westminster parliamentary tradition, which Canada inherited from the United Kingdom. By authorising damage awards for the exercise of legislative power, the Court’s decision undermines the capacity of Parliament to act for the common good. It transmogrifies contemplated legislation into potential liability for the executive, even where the present government had no hand in proposing or drafting the legislation at issue. This is notably the case where legislation had been enacted by a prior Parliament led by a different government, or possibly where it was adopted through a private members’ bill.

Why did an apex court, which as recently as 1991 affirmed that the courts could not “meddle” in the parliamentary process, stumble into such a historically and constitutionally illiterate decision? In this post, we begin by examining this question by drawing on insights from the classical legal tradition. We identify two interrelated sets of assumptions which, we contend, directly inform the majority’s reasoning and accounts for the wanton disregard it exhibits for settled constitutional arrangements. First, the judgment discloses assumptions about the nature of constitutionalism, which is characteristic of the “negative constitutionalism” that permeates liberal legal thinking. Second, it assumes that the nature of legislative activity consists in arbitrary will, rather than reasoned action for the common good.

Finally, we comment on the implications for ongoing attempts to develop an originalist jurisprudence in Canada. We contend that the intervention carried out by one mainstream, libertarian legal organisation in Power reveals not only a broad alignment of originalists with the negative constitutionalist premises accepted by many proponents of the “living tree”, but also confirms some of Professor Vermeule’s longstanding critiques of originalism itself.

I

Writing for the majority in Power, Chief Justice Richard Wagner and Justice Andromache Karakatsanis opened their judgment by declaring that: “It is a fundamental principle of our constitutional order that courts have a duty to protect the rights guaranteed by the Canadian Charter of Rights and Freedoms from infringement by the state.” Captured in this seemingly cursory statement are two interlocking assumptions that inform the reasons for judgment.

The first assumption is an apparent belief that the primary purpose of a constitution is to limit the exercise of public power, rather than to provide the architecture necessary to enable public authorities to act in the common good. This outlook is characteristic of liberal, or “negative”, constitutionalism. The second assumption, which is largely implicit in the first, is the view that the judiciary is uniquely placed to provide this kind of check on public power, and therefore, it is the main or only actor that can be counted upon to hold the government “accountable.”

Both assumptions animate the key steps of the majority’s reasoning in Power. Consider paragraph 5 of the Court’s judgment, where Wagner C.J. and Karakatsanis J. assert that:

An absolute immunity [for legislative acts] 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. … By shielding the government from liability in even the most egregious circumstances, absolute immunity would subvert the principles that demand government accountability.

Let us set aside the majority’s sub silentio move to demote axiomatic doctrines of parliamentary democracy, viz. parliamentary sovereignty and parliamentary privilege, to the realm of “principles” that must be judicially “reconciled” or balanced with other “principles”—currently a favoured tactic of proponents of progressive legalism in Canada. More importantly, what is striking is the very suggestion that “constitutionality and the rule of law” operate at cross-purposes with parliamentary democracy and the precepts of the Westminster model.

This approach is entirely consistent with a negative constitutionalist view, which treats the purpose of constitutionalism primarily as constraining public power. As the majority’s reasoning implies, it does not conceive of the doctrines of parliamentary privilege and parliamentary privilege as concrete specifications (determinationes) of “constitutionalism” and the “rule of law” in the Canadian polity. Rather, the majority seems to treat “constitutionalism” and the “rule of law” as transcending altogether any need for concretisation through institutional arrangements, which would constitute and frame the exercise of public power for the common good. Abstracted from these institutional arrangements, the Court invokes these “principles” directly to demand “accountability” from the executive, even for legislative acts—which is to say, even when the settled constitutional arrangements in Canada ought to prevent such liability.

If constitutionalism and the rule of law “demand government accountability” in this abstract sense, then it follows that there must be some actor holding the government to account. The second assumption underlying Power ascribes this role to the judiciary. It seems, for the Court, that no alternative form of “accountability” can satisfy the requirements of constitutionalism and the rule of law. As the majority puts the point explicitly, at paragraph 95:

Courts are constitutionally obliged to hold the government accountable when it breaches [constitutional] rights, including by providing meaningful remedies in the face of their violation. An absolute immunity would undermine the purpose and text of s. 24(1), which asks courts to look at the specific context of a given violation to determine whether a remedy is appropriate and just. The Charter requires courts to enforce constitutional rights. Enforcement means ensuring that remedies are commensurate with the extent of the violation … In this way, the separation of powers also protects the judiciary’s independence to carry out its constitutional duties: “Nothing less [is] required to maintain the normative ordering of the Canadian legal system”.

Taken together, the above paragraphs reflect the two propositions or assumptions concerning the nature of “constitutionalism” and the role of judges that enjoy wide currency within liberal legal circles in Canada and elsewhere. Similar to the first assumption, the proposition that courts “are constitutionally obliged to hold the government accountable” ignores Canada’s concrete institutional arrangements and the role they traditionally ascribed to the judiciary.

Under the Westminster system, it is Parliament that is charged with the responsibility to deliberate upon and change the law for the common good. In the model of responsible government, the executive is held to account by the House of Commons. In turn, members of Parliament are directly accountable, not to the courts but to the electorate. The immunity of parliamentary proceedings from coercive legal process is a necessary concomitant of the freedom that legislators must have to do their job effectively, unimpeded by the spectre of post-hoc judicial review of legislative deliberation and policy-making. As the dissenters in Power rightly objected, parliamentary privilege does not exist for the individual advantage of parliamentarians; it exists “for the public interest” and in order to support the representation of the people.

Put in more classical terms, in the Westminster tradition, the doctrines of parliamentary sovereignty and parliamentary privilege represent institutional concretisations of the general principle that there must be one invested with authority, “who has care of the community,” to promulgate laws for the common good. In reaching its decision, the Supreme Court of Canada treats “legislative autonomy” not as a manifestation of constitutionalism under the Westminster model, but depicts legislative autonomy as antagonistic to constitutionalism itself.

In departing from Canada’s settled constitutional arrangements, the majority in Power was ostensibly animated by the same concerns that undergird the dissenting opinions in the recent U.S. Supreme Court case of Trump v. United States. That is, the concern is that the political branches will be elevated “above the law” if judges do not have the power to hold them to account. But this misses the deeper point, as Professor Vermeule has eloquently articulated:

Presidents and former Presidents, even acting in an official capacity, are always bound by and subject to the law in its substantive sense, are always subject to the law’s directive force. It is just that, in an official capacity, they are at least presumptively not subject to the law’s coercive force, not subject to coercive legal process, such as criminal prosecution, to enforce the law.

Similarly, to say that the judiciary cannot award damages against the government for acts undertaken in a legislative capacity does not mean that the government is “above the law”, or that it is not subject to constitutional norms. It simply means that the judiciary is not apt to sit in judgment of legislators and parliamentary proceedings. Hence, as the Supreme Court of the United Kingdom has acknowledged, there are dangers of subjecting legislative activity to a “judicial model of rationality,” one of which is that it is prone to impair parliamentary functions.

To these observations, we can add that while the Westminster model contemplates accountability for the government to Parliament, and in turn to the electorate, no such accountability mechanism exists for judges. The vast majority of Canadian judges, including our Supreme Court judges, hold office subject only to the never-exercised possibility of removal from office through a joint address of the federal Senate and House of Commons. Moreover, for all the majority’s aversion to “absolute immunity” for legislative acts, it should also be noted that superior court judges in Canada have absolute immunity for judicial acts, even for acts committed maliciously. In the case of the legislature and the executive, the question “quis custodiet ipsos custodes?” receives a satisfactory answer. In the case of the judiciary, it receives no answer at all.

II

On the negative constitutionalist outlook animating the Supreme Court of Canada’s judgment, courts are conceived as being under a “duty” to provide redress against “clearly wrong” legislative acts—by imposing liability on the executive. While not explicitly stated, this framing implies that Parliament ought to be conceived as a standing threat to rights, thereby mandating judicial oversight of parliamentary privileges and immunities. In an incisive article, Lorne Neudorf describes this attitude as one that “assumes that legislative processes require judicial review and regulation to protect individual rights, which appears to be based on an inherent mistrust of the legislative institution and suspicions about the motives of its actors.”

This outlook on legislative activity is fruitfully contrasted with the understanding of law and law-making found in the classical legal tradition. It is useful to recall St. Thomas Aquinas’ definition of law: “an ordinance of reason for the common good, made by him who has care of the community, and promulgated.” This formulation encapsulates three elements of law on the classical account, being the elements of will (voluntas), reason (intelligentia), and memory (memoria).

Whereas the classical jurist recognises the integration of all three elements in the essence of law, the negative constitutionalism prevalent among contemporary liberals perceives only the willed, and sometimes historical, elements. It is arguably this alienation of reason that explains the liberal’s preference for negative constitutionalism, in the first place. If one concentrates solely on the willed aspect of law, then it follows that law-making activity (i.e., legislative action) appears as nothing more than the expression of subjective preferences, rather than a reasoned choice for the common good. Lacking any connection with reason and the common good, legislative power is construed to be an inherent source of oppression—which must be limited in the name of other, extrinsic “constitutional principles”.

Departing from these well-established doctrines, the Supreme Court of Canada at once defies the possibility of legislative activity as a reasoned, deliberative enterprise (intelligentia) and casts aside the historic foundations of Westminster parliamentary democracy (memoria), in favour of its apprehensions about legislation as an “abuse of power” (voluntas). From the classical perspective, Power is based upon a flawed understanding of legislative activity. In authorising courts to interfere directly in the parliamentary and deliberative process, the majority in Power proceeds from an incomplete or defective case rather than the central case of law-making. It is for that reason that it regards the rights of Parliament—its privileges and immunities—as exceptions to the rule of law that must be reined in, rather than as manifestations of constitutionalism that Canada inherited and institutionalised in its concrete historical circumstances.

III

To some eyes, the most surprising aspect of Power has not been the Supreme Court of Canada’s ruling itself, with its evisceration of foundational constitutional precepts. Rather, it has been the manner in which reactions to the Court’s subjection of legislative power to judicial power have cut across the conventional ideological divide. Conspicuous among these reactions is that of the Canadian Constitution Foundation, one of the country’s few putatively right-wing legal organisations, which had intervened before the Court in Power to urge it to adopt precisely the approach that was ultimately sanctioned by the majority.

Considered in light of our earlier discussion, the CCF’s framing of the case is revealing. In its view, the principle that “no person or entity is above the rule of law” impels the rejection of the traditional Westminster model whereby Parliament is absolutely immune from judicial process (but not, it should be recalled, from the democratic process).

Despite significant criticism following the release of the judgment, the organisation continued to defend the Court’s decision on the basis that “the government has to face consequences for unconstitutional laws.” Indeed, the CCF has chastised the sceptics of judicial power more broadly, arguing that they should be equally sceptical of governmental power. Part of its response consists in emphasising that a contrary decision would mean the government is not judicially liable for even legislative acts that are “clearly wrong,” taken in “bad faith” or “an abuse of power,” though the CCF says little about the fact that these standards are to be applied by a fickle judiciary. And tellingly, the organisation’s podcast singles out a Twitter comment complaining of judicial intervention in Westminster parliamentary democracy as its “bad legal take of the week.”

These are rather strange positions emanating from an organisation that is frequently associated with attempts to develop an originalist jurisprudence in Canada. The text of Canada’s Constitution Act, 1867 plainly states that it establishes “a Constitution similar in Principle to that of the United Kingdom,” which is universally understood to refer, at minimum, to the Westminster system of parliamentary democracy and its model of responsible government. As a result, one would think that a defence of basic Westminster precepts would rest among the chief concerns of originalist constitutional advocacy. Certainly, it is true that not all Canadian originalists have welcomed the Power decision with such fervour. But the CCF’s reaction should not be taken as a mere outlier, particularly in light of its sizeable public profile compared to other organizations that advance similar views.

If what is perhaps the most prominent right-wing legal organisation and vehicle for originalist thought in Canada has sided with progressive, “living tree” legalists in Power, then it suggests that an adherence to originalism on its own can hardly serve as a sound basis for defending constitutional tradition. To the contrary, it gives strong credence to Professor Vermeule’s longstanding criticisms of originalism and its implicit commitment to legal positivism. As he observes, this commitment makes originalism liable to produce wildly different answers to the same legal problems, depending only upon the level of generality with which the problems are framed.

Consistent with this observation, the CCF’s position suggests that originalism, with its underlying positivistic outlook on law, often serves to destabilise inherited and settled constitutional arrangements and processes—including those of the political constitution, which work to secure government accountability under the Westminster system. Although rooted in a notional commitment to the enacted text, it can all too easily end up justifying results that are not unlike those favoured by “living tree” proponents. In this case, the CCF proceeded from a highly abstract, negative constitutionalist outlook that framed the problem in Power as a matter of holding the government to account. Having framed the problem at this level of generality, the concrete institutional arrangements that characterise Canada’s Westminster system were impediments that needed to be set aside.

The CCF’s position in Power stands in marked contrast with the classical legal tradition, which conceives the central case of law as an emanation of rightful authority and an expression of justice within the particular social arrangement of the polity. On the classical view, principles such as “constitutionalism” and the “rule of law” are not treated as abstract, free-floating considerations, but as general principles that are to be given effect through instantiation in concrete arrangements and institutions. While these principles can be developed in positive law and institutions in different conditions over time, it calls for a high degree of respect for the existing constitutional arrangements to the extent that, and precisely because, they are reasonable determinations of those higher-order principles.

In the Canadian context, then, a classical standpoint would reject the automatic equation of constitutionalism with restrictions on legislative power and the rule of law with exclusively judicial mechanisms of accountability. To the contrary, it would require taking seriously the unity of will, reason, and memory in our Westminster parliamentary tradition. Conversely, as the jurisprudential alignment of left-liberals with the right-liberal CCF implies, a commitment to originalism does not appear capable of maintaining respect for institutions charged with the care of the community and of our constitutional inheritance.