Flipping the Line: No, legislatures can’t be financially liable for passing legislation

Legislation Damages would give rise to a whole host of practical problems and further strain an already overburdened legal system.

The Line welcomes angry rebuttals and responses to our work. The best will be featured in our ongoing series, Flipping the Line. Today, Asher Honickman, Gerard Kennedy and Mark Mancini respond to a recent article suggesting that legislatures should be financially penalized when they pass laws later found to be unconstitutional.

Photo Credit: Marc Lostracci.

By: Asher Honickman, Gerard Kennedy and Mark Mancini

Christine Van Geyn and Josh Dehaas recently published a piece here arguing that governments should pay damages for legislation declared to be unconstitutional (“Legislation Damages”). They cite the hypothetical example of “Populist Pete” who, as premier, oversees the passing of legislation preventing individuals from working in Alberta, in flagrant violation of their mobility rights under s. 6 of the Charter. 

Alas, there are myriad problems with this proposal, both principled and practical.

First, the concept of Legislation Damages runs counter to deeply entrenched principles regarding private compensation for the conduct of state actors. Centuries of common law and legislation have consistently prescribed that, while damages are available against the Crown (i.e., the executive) for affecting individual rights in certain circumstances, they are never available against the legislature. It is highly implausible that the Charter mandated departure from what otherwise remains a basic tenet of our legal system.

There is good reason for this dichotomy, rooted in Canada’s separation of powers. Notably, the Crown is capable of abusing power and acting in bad faith in a way that the legislature, an incorporeal body, cannot. Moreover, except for responsible ministers, executive actors cannot be voted out of office. Legislators can. In other words, actions for damages against the Crown are an important mechanism to ensure accountability vis-à-vis the executive. Accountability vis-à-vis the legislature, on the other hand, mostly involves elections and other forms of political contestation — and, exceptionally, declaring legislation to be of no force and effect.

In our constitutional order, this is no small thing. The various ways that legislatures and executives can be held to account each represent considered choices made over generations about how we govern ourselves. Transferring judicial remedies to the context of legislation distorts these considered choices, diluting the role of this deliberation in the legislature and confusing the different accountability mechanisms in our constitutional order. 

Perhaps recognizing these concerns, Van Geyn and Dehaas posit that legislation’s unconstitutionality can only lead to damages if the legislation passed was “clearly wrong, drafted in bad faith, or […] amounted to abuses of power.” This, however, raises various conceptual and practical legal issues. What does bad faith in legislation even look like? What happens if some legislators acted in bad faith while others, though perhaps mistaken, acted in good faith? Similarly, abuse of power is a concept taken from executive liability where the Crown actors flagrantly misuse power the legislature gave them — how then does the legislature flagrantly misuse power it gave itself? 

Even if these conceptual questions could be answered, how would a litigant ever prove bad faith? What evidence would tend to show that the legislature acted in bad faith, and how would a court be expected to assess and weigh that evidence? Courts in Canada already wield considerable power, and proposals to expand that power should be seriously assessed.

Beyond this, Legislation Damages would give rise to a whole host of practical problems and add significant strain to an already overburdened legal system. 

First, the availability of damages would incentivize plaintiffs’ lawyers to bring Charter claims as class proceedings, since doing so could result in significant financial benefits for the lawyers. As anyone who practices class-actions litigation knows, these cases invariably involve a voluminous record coupled with numerous procedural complexities, and often remain in the system for years and sometimes even decades. Even where legislation has been passed in good faith, this would not prevent ambitious lawyers from suing and leveraging a settlement against a cost-conscious attorney general. This would be a far cry indeed from the exceptional circumstances Van Geyn and Dehaas envisage. Making Legislation Damages available would exacerbate delay in our already backlogged courtrooms and, paradoxically, delay resolution of the legislation’s unconstitutionality.

History also suggests that this “exceptional” remedy would become less and less so as time passed. There are myriad examples of “exceptional” remedies in the Charter era becoming far from it: remedies from individualized exemptions from laws to Charter damages for executive action have become more the norm rather than the exception. The refusal of the Supreme Court to close the door to claims for “positive” rights to housing or a healthy environment has already created unpredictability in litigation (which we doubt Van Geyn and Dehaas support). A hard “rule” closing the door to Legislation Damages would help reverse this unfortunate trend and enhance the predictability of our laws, and the viability of our legal system.

Finally, we note that the need for damages in these circumstances is doubtful. First, the executive can already be sued for infringing an individual’s Charter rights, and this could conceivably include the enforcement of a constitutionally valid law in an unconstitutional manner. In such a case, the violation would not be the law itself, but its implementation by a particular state actor resulting in provable damages to defined persons — thereby avoiding the myriad of problems described above. 

But second and more importantly, it bears stating the obvious: Populist Pete doesn’t exist. The fictional character conjured by Van Geyn and Dehaas is reminiscent of the “reasonable hypotheticals” that courts use to demonstrate that laws impose “cruel and unusual punishment” to a theoretical person rather than to the person actually before court. Even Justice Sheilah Martin, who defended the use of such hypotheticals earlier this year, acknowledged that they can say “more about the imagination of counsel than […] the true scope of the impugned provision.”

In the case of Populist Pete, the legal imagination truly extends to a world unknown — not merely where overzealous Crowns expend scarce resources prosecuting exceedingly minor offences, but where the people knowingly elect a tyrant, and the numerous other safeguards in the system fail to prevent his draconian legislation from being enacted. With respect, this is not reflective of Canada’s actual experience as a constitutional monarchy and democratic society. Pending Populist Pete’s actual existence, this is a solution in search of a problem.

We do not doubt that legislation can visit injustice on individuals, and we are not unsympathetic to the instances where laws, inadvertently or deliberately, create unsustainable distinctions between individuals or groups. But in our system, and for good reason, there are defined avenues for challenging these laws. Embracing Legislation Damages would undermine the separation of powers and basic architecture of our legal system, overburden our courts, and expand the function of an already powerful judiciary. Pandora’s Box would be opened for theoretical and narrow benefits. 

Asher Honickman is a partner at Jordan Honickman Barristers, Gerard Kennedy is a professor at the University of Alberta's Faculty of Law, and Mark Mancini is a Ph.D. candidate at UBC's Peter A. Allard School of Law. All are officers of Advocates for the Rule of Law. (Disclosure: Line editor Matt Gurney is a board director there, but was not involved in the preparation of this article.)

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