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Constitution (Non-Charter) - Separation of Powers. 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.
Here the court considers the constitutional 'separation of powers':(5) Constitutional Principles
[47] Canada argues that anything less than absolute immunity is inconsistent with three longstanding and foundational constitutional principles: parliamentary sovereignty, the separation of powers, and parliamentary privilege. Mr. Power responds that these principles do not necessitate absolute immunity and, moreover, that such immunity is inconsistent with other foundational constitutional principles, including constitutionalism and the rule of law. Each of these principles inform the separation of powers. We will briefly consider each in turn, before addressing the parties’ substantive submissions later in the analysis.
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[50] The separation of powers is part of the foundational architecture of our constitutional order. It is a constitutional principle which recognizes that the three branches of government have different functions, institutional capacities and expertise; and that each must refrain from undue interference with the others (Fraser v. Public Service Staff Relations Board, 1985 CanLII 14 (SCC), [1985] 2 S.C.R. 455, at pp. 469-70; British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia, 2020 SCC 20, [2020] 2 S.C.R. 506, at paras. 65-66). The separation of powers allows each branch to fulfill its distinct but complementary institutional role without undue interference and to create a system of checks and balances within our constitutional democracy (Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, at para. 29).
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[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.
[83] Like parliamentary privilege, discussed below, the separation of powers supports the need for some immunity, but not absolute immunity. 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. Insofar as an award of damages provides any guidance to the legislature at all, it merely says that “the government and its representatives are required to exercise their powers in good faith and to respect the ‘established and indisputable’ laws that define the constitutional rights of individuals” (Mackin, at para. 79). While the separation of powers demands a core of legislative autonomy, it also demands legislative accountability through the role of the courts.
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