The Imperatives of Power

Towards the end of its reasons, which dealt at length with the existence and extent of government immunity for unconstitutional laws, the majority in Canada (Attorney General) v. Power, 2024 SCC 26, wrote that where “the balance of constitutional principles tilts in favour of state immunity…the constitutional imperative that the government be afforded the autonomy to govern effectively will defeat the claim to damages” (¶115).

Add it to the quickly growing list: reconciliation, judicial independence, the duty to consult, order, fairness, the real and substantial connection test, the Charter, parliamentary privilege, possibly the separation of powers, and now…sufficient government autonomy to govern effectively?

Less elegant than the other members of this new pantheon, but rough edges are perhaps expected given the rate at which the Court is minting new imperatives. Taking a conservative approach (excluding the ambiguous separation of powers, R. v. Edwards, 2024 SCC 15, ¶89), the Court canonized 33% (3/9) of all constitutional imperatives in the first half of the 2024 term. Imperatives are proliferating like frameworks in the Court’s rhetoric.

The majority also clarified the relationship between constitutional imperatives and other constitutional elements. In the very first paragraph, Wagner C.J. and Karakatsanis J. framed the case in the following terms: “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 Freedomsfrom infringement by the state. However, other foundational constitutional principles require that the state be afforded the legislative autonomy to govern effectively. At the heart of this appeal is a question about how to reconcile these principles in the context of s. 24(1) of the Charter, which authorizes courts to grant such remedies to individuals for the infringement of their Charter rights as is considered appropriate and just in the circumstances” (¶1).

Those “other foundational constitutional principles” are parliamentary privilege, parliamentary sovereignty, and the separation of powers (¶¶46-52). And the relationship is apparently quite simple: those principles impose that requirement (affording the government the autonomy to govern effectively) on our Constitution.

Even better, that relationship resembles the relationships between other constitutional principles and constitutional imperatives:

• the constitutional principle of federalism requires order, fairness, and the real and substantial connection test (British Columbia v. Imperial Tobacco Canada Ltd., [2005] 2 S.C.R. 473, ¶27; see also Club Resorts Ltd. v. Van Breda, 2012 SCC 17, ¶28).
• the constitutional principle of the honour of the Crown requires the duty to consult (aka meaningful consultation and workable accommodation) (Clyde River (Hamlet) v. Petroleum Geo‑Services Inc., 2017 SCC 40, ¶¶23-24; Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, ¶41).

As the number of constitutional imperatives increases and the Court invokes them more frequently, we have more opportunities to assess and elaborate the general relationship between these constitutional elements.

• Constitutional principles are “the vital unstated assumptions upon which the text is based”; they “dictate major elements of the architecture of the Constitution itself and are as such its lifeblood” (Reference re Secession of Quebec, [1998] 2 S.C.R. 217, ¶¶49, 51).
• Constitutional imperatives are the formal, structural, and doctrinal requirements dictated by those principles.
  • They may be one example of the second use of constitutional principles identified by the majority in Toronto (City) v. Ontario (Attorney General), 2021 SCC 34: “unwritten principles can be used to develop structural doctrines unstated in the written Constitution per se, but necessary to the coherence of, and flowing by implication from, its architecture. In this way, structural doctrines can fill gaps and address important questions on which the text of the Constitution is silent, such as the doctrine of full faith and credit…; the doctrine of paramountcy…; the remedy of suspended declarations of invalidity …; and the obligations to negotiate that would follow a declaration of secession by a province…” (¶56).

This is progress, but it is limited. Important questions remain. For example, some constitutional principles are also constitutional imperatives (e.g. judicial independence, the Charter, parliamentary privilege, and maybe the separation of powers). How can those principles impose themselves as requirements? What would that even mean? Of course, real progress is always incremental. We have no choice but to take it step by step.

We also know that constitutional imperatives apply to the government (e.g. the duty to consult) and to Parliament and legislatures, in the sense that those law-making bodies cannot override them (Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5, ¶57). There may also be a sense in which compliance with those constitutional imperatives is itself constitutive of legitimacy: “in Canadian constitutional law, the real and substantial connection test has given expression to the constitutionally imposed territorial limits that underlie the requirement of legitimacy in the exercise of the state’s power of adjudication” (Van Breda ¶32). 

But we need more datapoints. Specifically, we need to identify more constitutional imperatives so that we can gather more information on this increasingly important constitutional element, elaborate the test for and implications of these imperatives, and perpetuate this virtuous cycle of constitutional development.

Limited government immunity is a constitutional imperative

The Power majority was circumspect, cautious even. After referring to it once as a “principle” (¶63), the majority studiously avoided classifying immunity. Wagner CJ and Karakatsanis J did describe immunity as a “threshold” (e.g. ¶¶65, 68-70, 80, 81), but this is a characterization of how limited government immunity operates, not a constitutional classification.

The majority inherited this tentative approach from a series of judgments in which the Court elaborated the mechanics of this “threshold” but largely avoided classifying it: Harvey v. New Brunswick (Attorney General),  [1996] 2 S.C.R. 876; Mackin v. New Brunswick (Minister of Finance); Rice v. New Brunswick, [2002] 1 S.C.R. 405; Vancouver (City) v. Ward, 2010 SCC 27 (which does refer in passing to “the Mackin principle”, ¶¶40-41);Conseil scolaire francophone de la Colombie‑Britannique v. British Columbia, 2020 SCC 13. 

At most, we learn from Mackin that limited government immunity is a “doctrine” (¶79). This is important but not determinative: it confirms that “limited government immunity” is part of our law, not a mere concept, idea, or interpretive tool. 

Dissenting in Power, Jamal J. also described parliamentary privilege as a “doctrine” (e.g. ¶¶139, 142, 156). Since we know it is also a constitutional principle and a constitutional imperative, these three categories are not mutually exclusive.

Notwithstanding the majority’s reluctance, limited government immunity is clearly a constitutional imperative.

• It is required by constitutional principles.
  • “Limited immunity respects the constitutional principles underpinning both legislative autonomy and accountability” (¶77). 
    • These principles include not only parliamentary privilege, parliamentary sovereignty, and the separation of powers but also constitutionalism and the rule of law (¶¶53-57).
  • By contrast, “absolute immunity would subvert the principles that command government compliance with the Charter and the courts’ role in enforcing its fundamental guarantees” (¶77)
  • Limited immunity was “was expressly designed to reconcile competing constitutional principles” (¶65): it upholds each of them without compromising any of them.
• Limited government immunity is a doctrine: a rule, not a concept or interpretive tool (¶63).
  • Courts apply this threshold directly to government conduct, rather than to other rules or principles: 
    • “courts can respect parliamentary privilege when applying the limited immunity threshold” (¶84)
    • “There is no government immunity for decisions made in accordance with government policies” (CSF 2020, ¶166)
• Also, and I am not yet sure whether this is a requirement for a constitutional imperative or just an inevitable consequence of this status, limited immunity is bound up with legitimacy.
  • Specifically, limited immunity strikes a balance between principles that can and must be justified in order to promote democracy and good governance.
    • “A limited immunity reconciles the importance of parliamentary privilege with the Charter by ensuring that the privilege is no broader than is justified for a functioning constitutional democracy” (¶89).
    • “Limited immunity ends at the point where it no longer strikes a justifiable constitutional balance. If the state enacts legislation that is subsequently declared invalid and that is clearly unconstitutional, in bad faith or in an abuse of power, good governance concerns can no longer justify shielding the government from liability for violating Charterrights. Damages may instead “promote good governance” by supporting the “foundational principle of good governance” that state action must comply with the Constitution (Ward, at para. 38). If the Mackin threshold is not met, the balance of constitutional principles tilts in favour of state immunity” (¶115)
    • CSF 2020, ¶177: “the limited government immunity is justified by the fact that the law is the “source” of duty for the government. The enactment of laws is the fundamental role of legislatures, and the courts must not act so as to have a chilling effect on the legislatures’ actions in this regard.”

Is purposive interpretation also a constitutional imperative?

The Power majority effectively established two new constitutional imperatives: (1) “that the government be afforded the autonomy to govern effectively” and (2) limited government immunity.

It also demonstrated a potential third imperative: purposive interpretation.

When explaining “the proper approach to Charter interpretation,” Wagner CJ and Karakatsanis J write that “A purposive approach considers constitutional principles” (¶¶25, 27).

This statement resonates with a similar assertion made by Rowe J, dissenting in R. v. J.J., 2022 SCC 28 (and referenced this year in R. v. Kruk, 2024 SCC 7, ¶17): “the Court should adopt and consistently apply an interpretive approach that is in line with the structure and purpose of the Charter. Doing so is a matter of constitutional imperative.”

Purposive interpretation is required by the principled nature of the Charter (and the entire Constitution), rather than a specific constitutional principle. It is perhaps a meta-imperative. 

It is clearly tied to the performance and legitimacy of the Court’s constitutional role: it presumes and perpetuates a purpose within or behind the text. As the Court wrote in Reference re Senate Reform (and as quoted by the Power majority at ¶27): “the Constitution must be interpreted with a view to discerning the structure of government that it seeks to implement. The assumptions that underlie the text and the manner in which the constitutional provisions are intended to interact with one another must inform our interpretation, understanding, and application of the text” (¶ 26).

The Constitution must be interpreted this way. A purposive approach is mandatory, not optional, advisable, preferable, or merely useful. It is mandatory because of the nature of the Constitution, which the Court says “should be viewed as having an “internal architecture”, or “basic constitutional structure”” (Re Senate Reform,¶26; citing QSR ¶50; OPSEU v. Ontario (Attorney General),  [1987] 2 S.C.R. 2, p. 57; Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21 ¶82).

The ultimate imperative is a Constitution of imperatives

Constitutional imperatives seem to reflect a way of seeing: once you learn to identify them, you see them everywhere. 

This perspective, which does require practice, may be the Court’s ultimate imperative. The elaboration of particular principles and imperatives is less important than the entrenchment of those categories and their conceptual relationships. 

The Court has gone to great lengths (in thousands of paragraphs across dozens of judgments over the last few decades) to ensure the Canadian Constitution is understood and engaged in terms of principle and structure. 

The framework is the contemporary, technocratic version of the classic metaphor deployed by Viscount Sankey: “a living tree capable of growth and expansion within its natural limits” (Edwards v. Canada (Attorney General), [1930] AC 124, p. 136). Of course, we know now there is nothing natural about it. Right? Right?

The Court’s modern language is no less aspirational for being less poetic: it continues to insist our Constitution can be (and is) both flexible and strong, dynamic and consistent, accommodating and directional.

Dickson J. (as he then was) captured the defining dyad of coherence (permanence) and reality (change) 40 years ago in Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145: “A constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and, when joined by a Bill or a Charter of Rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the constitution and must, in interpreting its provisions, bear these considerations in mind” (p. 155, emphases added). 

The twin preoccupations of coherence and reality continue to define the Court’s ideology approach to the Constitution. Purposive analysis means we don’t ever have to choose: interests can always be balanced, principles can always be reconciled, once we reach a sufficient level of enlightenment abstraction.

But what does this privileged account obscure? What goes on in the shadows?