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Constitution (Non-Charter) - Conflict Within Constitution. Canada (Attorney General) v. Power
In Canada (Attorney General) v. Power (SCC, 2024) the Supreme Court of Canada re-considers and confirms [the previous case was Mackin (SCC, 2002)] whether and how the Crown can be liable for Charter damages for passing unconstitutional legislation.
In these important passages the court discusses the resolution of apparent conflicts within the Constitution (including the Charter):(1) Limited Immunity Respects All of the Constitutional Principles
[78] As McLachlin J., as she then was, explained in Harvey v. New Brunswick (Attorney General), 1996 CanLII 163 (SCC), [1996] 2 S.C.R. 876, “[w]here apparent conflicts between different constitutional principles arise, the proper approach is not to resolve the conflict by subordinating one principle to the other, but rather to attempt to reconcile them” (para. 69). And as Mr. Power notes, our Court’s jurisprudence demonstrates “that there is no one constitutional principle that dominates the remedial analysis” (R.F., at para. 76, citing G, at paras. 89-99, R. v. Sullivan, 2022 SCC 19, at para. 60, and Albashir, at para. 34).
[79] Our constitutional jurisprudence has not created hierarchies of constitutional principles. It has aimed to provide flexibility and accommodation in the pursuit of good governance and fundamental rights. This is especially important in an era of increased transparency and accountability. Our constitutional remedies must reflect the interdependency of principles, and balance the need for both government autonomy and accountability.
[80] As we will explain, the Mackin threshold is consistent with and best reconciles each of the constitutional principles engaged by this appeal.
[81] First, parliamentary sovereignty is not undermined by the Mackin threshold. As noted above, parliamentary sovereignty does not mean that Parliament is above the Constitution. Parliament remains subject to the constraints and accountability mechanisms of the Constitution, including the Charter. By the text of s. 32(1), the Charter specifically applies to Parliament and the provincial legislatures. 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.
[82] Second, limited immunity is consistent with the separation of powers. The separation of powers does not mean that each branch is completely “separate” or works in isolation. The separation of powers in Canada is not strict (Reference re Secession of Quebec, at para. 15; Cooper v. Canada (Human Rights Commission), 1996 CanLII 152 (SCC), [1996] 3 S.C.R. 854, at para. 10). We have “never adopted a watertight system of separation of judicial, legislative and executive functions” (Doucet-Boudreau, at para. 107). Rather, our Court has always emphasized that each branch cannot exercise “undue” interference, which depends entirely on the circumstances and the constitutional principles engaged. The availability of an after-the-fact judicial remedy for unconstitutional legislation does not interfere with the law-making process. However, respect for the legislative role requires a high threshold for liability for the enactment of unconstitutional legislation. The high bar for liability established in Mackin ensures that the judiciary does not unduly interfere with the government’s ability to carry out its legislative function. Absolute immunity would give insufficient respect to the judicial role to provide meaningful remedies for the breach of constitutional rights.
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