Five Questions after Canada (Attorney General) v Power
In an earlier post, I discussed how the Supreme Court of Canada’s recent decision in Power required it to confront some of the constitution’s internal tensions. In this Substack, I deal with a number of ancillary issues that arise from the Court’s decision. Quite apart from its central holding, Power is significant for what it says about the basic approach to Charter interpretation; the continued salience of unwritten constitutional principles; the status of parliamentary sovereignty and the separation of powers; and the government’s evolving liability for damages under the Charter.
The Basic Approach to Charter Interpretation
One interesting feature of Power is that the majority’s discussion of the principles of Charter interpretation does not refer to either Quebec (Attorney General) v 9147-0732 Québec inc. or Toronto (City) v Ontario (Attorney General), two recent cases in which a majority of the Supreme Court seemed to elevate the constitution’s text above other elements of the purposive approach. This move was viewed by some as a shift toward a more textual approach to Charter interpretation. In Power, the majority made no mention of these leading cases. Instead, it reached back to older decisions, including the Senate Reform Reference and the bedrock 1985 case of Hunter v Southam, and reiterated that the Charter should be given a “broad and purposive” reading. As I noted in a recent blog post, this move raises questions about how committed the Court is to the more textual approach articulated in Quebec Inc. and City of Toronto. That approach was only ever endorsed by five judges (two of whom are no longer on the Court), and it goes against decades of jurisprudence.
Unwritten Principles
City of Toronto is now also the leading case on the nature and status of unwritten constitutional principles. In that case, Chief Justice Wagner and Justice Brown affirmed that “Unwritten principles are ... part of the law of our Constitution, in the sense that they form part of the context and backdrop to the Constitution’s written terms.” However, they also stated that these principles could only be applied by judges in limited ways. They can be used to interpret the written constitution and to “fill gaps” in the constitutional text, but they cannot be relied upon to invalidate legislation.
Those who are familiar with the case law will know that courts have always had an uneasy relationship with unwritten constitutional principles. The case law does not offer a single, coherent account of the nature of these principles or the role they play in constitutional adjudication. Yet they continue to be relied upon by lawyers and courts alike. One reason for this may be that unwritten principles have occasionally proven to be very consequential. In the Manitoba Language Reference, for example, the Court referenced the rule of law in refusing to strike down all of Manitoba’s statutes despite the fact that they had not been published in English and French as required by the constitution. And in the Secession Reference, the Court knit together four principles – constitutionalism and the rule of law, democracy, federalism, and the protection of minorities – to craft a test for determining when secession negotiations are constitutionally required.
City of Toronto seems to close the door on the use of unwritten principles to strike down legislation, despite a vociferous dissent on the issue by four judges. However, the case also raises many questions that will need to be answered in future cases.
Given the majority’s scepticism about the utility of these principles, it is surprising to see them feature so prominently in Power. Indeed, the majority frames its entire analysis in terms of a balancing of principles. Now, it should be noted that the Court was invited by the Attorney General of Canada and multiple interveners to consider how recognizing damages in this context would impact the separation of powers, parliamentary sovereignty and the rule of law. But the majority’s framing is notable given its confident assertion in City of Toronto that the written text will usually supply the answers to constitutional questions without the need to resort to principles. Perhaps this conclusion does not hold up to the same degree in practice, particularly when one of the aspects of the constitution under consideration is itself unwritten.
Another question to consider is which of the two permissible uses of principles is at work in Power. Is the majority using principles to assist it in interpreting constitutional text, or to fill gaps in the written text? In my view, the answer is unclear. In any event, the approach to principles in Power is far more robust than what was contemplated in City of Toronto.
One reason why courts may find principles to be useful is that principles-based reasoning aligns well with the way apex courts decide cases. When an apex court is articulating law for the country as a whole, the tendency is naturally to focus on the high-level principles that govern a dispute rather than the minutia of the case. My colleague Richard Mailey argues in a brilliant forthcoming paper that (somewhat ironically), the majority in City of Toronto used principles-based reasoning to conclude that principles-based reasoning should be strictly limited. To my mind, this observation reinforces the allure of this form of reasoning. All these factors suggest that courts will continue to gravitate toward them.
Dependent Parliamentary Sovereignty
Power embodies the distinctly Canadian approach to parliamentary sovereignty that has evolved since the enactment of the Charter. In the Secession Reference, the Supreme Court infamously stated that “with the adoption of the Charter, the Canadian system of government was transformed to a significant extent from a system of Parliamentary supremacy to one of constitutional supremacy.” Yet the Court has continued to refer to parliamentary sovereignty in its case law, raising questions about what, exactly, the Court intends when it refers to this principle.
Building on the work of Peter Oliver, I have argued that parliamentary sovereignty is a concept that continues to have conceptual purchase in Canada, but that in its post-1982 variation, it is best understood as a form of “dependent parliamentary sovereignty.” On this view, Parliament is supreme within its sphere, but the outer limits of its authority are delimited by the Charter (and other parts of the constitution). This form of sovereignty that is different in kind than the classical, Diceyan parliamentarian sovereignty that is most familiar to lawyers, according to which Parliament may “make or unmake any law whatever.”
In my view, it makes sense to understand Power as giving effect to dependent parliamentary sovereignty. Not only is Parliament constrained by the Charter, but courts are willing to reach into the parliamentary sphere to ensure that the Charter is respected. The deferential standard that the majority articulates – that damages may be available for the enactment of unconstitutional legislation where a law is clearly unconstitutional, in bad faith or an abuse of process – does not change the fact that the majority chooses to elevate Charter imperatives above parliamentary sovereignty.
The Separation of Powers
The separation of powers is arguably a latent feature of all constitutional cases. When the Court is asked to evaluate the constitutionality of legislation or government action, it must consider its role relative to that of the other branches of government. Indeed, the Court has made ample use of this principle in recent years. In a 2024 book chapter written with Keenan Macneal, we tracked the use of this principle systematically, and showed that the Court has found itself returning to the separation of powers principle with some frequency.
One of the main findings of our research was that while there is a high degree of consensus about the nature of this principle, the Court has sometimes divided on how it applies in concrete cases. For this reason, we argued, we were likely to continue to see the separation of powers be a live issue in the Supreme Court’s jurisprudence.
Power is a stark example of this type of division. The five-judge majority countenanced fairly significant intrusions into the parliamentary sphere. The concurrence worked hard to articulate a standard for Charter damages that mitigated the effects on parliamentary privilege, parliamentary sovereignty and the separation of powers. And the dissent, written by Justice Rowe, strongly resisted any intrusion into Parliament’s sphere, and instead balanced the competing interests at stake by noting that there were several ways of challenging legislation post hoc that left the separation of powers more or less intact.
One of the upsides of the Court referring to this principle so often is that the doctrine is beginning to solidify. However, operating as it does as a proxy for debates about the proper judicial role in constitutional matters, it will likely continue to be a source of division.
Charter Damages
The majority in Power concluded that Charter damages may be available for the enactment of unconstitutional legislation where a law is clearly unconstitutional, in bad faith or an abuse of process. In doing so, it built on the framework for Charter damages articulated in the Court’s 2009 decision in Vancouver (City) v Ward.
In Ward, Chief Justice McLachlin explained that an award of damages did not flow automatically from the fact of a Charter breach. Rather, the suitability of damages as a remedy should be assessed having regard to four factors: “(1) Has a Charter right been breached? (2) Would damages fulfill one or more of the related functions of compensation, vindicating the right, or deterring future breaches? (3) Has the state demonstrated that countervailing factors defeat the functional considerations that support a damage award and render damages inappropriate or unjust? (4) What is the appropriate quantum of damages?” The Court in Ward was clear that it was taking a first step by establishing a framework for damages in that case, and that the jurisprudence would continue to develop over time. Power represents an important evolution in this body of jurisprudence.
From an outsider’s perspective, it would be easy to conclude that the impact of Ward has been minimal. After all, Charter damages are not awarded as a matter of course, and when they are, the damage awards tend to be small (the damages awarded in Ward were set at $5,000). However, interviews that I have conducted with government lawyers as part of an ongoing research project suggest that outsiders likely underestimate the impact of Ward on government. Even if these claims are only rarely successful, and the damage awards are usually small, Ward has increased the litigation risk for government. Moreover, given that this jurisprudence is in its infancy, there is still considerable uncertainty about the future direction(s) it might take.
In Power, the Courts recognized yet another source of liability for government. And unlike the s 24(1) damages awarded in Ward, where the issue was unlawful police conduct, a finding that damages are owing for the enactment of legislation could be much more serious and costly for the government.
It is difficult to predict what the impact of this case will be on politicians and public servants. However, we do know that the recognition of the possibility of Charter damages has had an impact on the executive. The introduction of a new form of liability will undoubtedly alter how government lawyers give advice. Whether it makes a difference for the choices that politicians make is, of course, another story.