In the last half of 2024, Parliament has experienced two events with constitutional implications:

1. A majority of the House of Commons has demanded release of unredacted documents pertaining to the Sustainable Development Technology Fund, a defunct government program found (by the Auditor General) to have raised significant questions about the governance and stewardship.  The Government has refused to supply the documents as requested, arguing that such a release would raise issues pertaining to personal privacy and to the integrity of the investigative and judicial process.  This dispute has frozen parliamentary debate for several weeks.
2. The Supreme Court has ruled that the Government is liable for damages resulting from the legislative actions of Parliament, if such actions were unconstitutional or if the actions were undertaken in bad faith or involved the abuse of power.  The Government had argued that it should enjoy absolute immunity as any other approach would interfere with the legislative process and possibly lead to an avalanche of legal challenges.

Parliamentary Authority

In a constitutional democracy, the authority of Parliament is absolute.  In the past, Parliament has chosen to limit or bind its authority through constitutional measures such as the Charter of Rights and Freedoms.  These limits are self-imposed (although changing the Constitution requires much more than the federal Parliament to achieve).  Subject to that limitation, no government administration, no court, or no other legislative body can limit the authority of Parliament.

The Government has refused to provide documents requested by a majority of the House of Commons, arguing that the release of information could (a) compromise the privacy rights of individuals mentioned in the documents and/or (b) compromise any police investigations or judicial proceedings related to the documents.   Such concerns appear quite reasonable on their face.

However, the Government does not have the authority over Parliament to determine what Parliament may or may not see.  It is not the Government which has the authority to adjudge whether privacy rights have been violated or whether investigatory/judicial processes have been compromised.  That is the role of the courts.

If there are indeed privacy or process violations, to be sure Parliament would be morally and managerially accountable, and should be expected to explain and justify its actions in the parliamentary and political arenas.  In certain circumstances, Parliament may also be legally accountable.

However, with respect to the matter of the rights of Parliament the Government’s case fails.

Parliamentary Accountability

In the case known as ‘Fraser’, the Supreme Court outlined the Government’s accountability for actions taken by Parliament.  Mr. Fraser sued the Government for damages resulting from the retrospective application of a law pertaining to criminal records, which cost him employment opportunities.

The Government argued that it (the Crown) must have absolute immunity in such occasions, as anything less would intimidate or impede the legislative process, compromising the independence of the legislature: Parliament.

In actual practice, it is not the legislature – aka Parliament – that is found liable for the consequences of Parliament’s legislation.  It is the Government that is liable.  So the Government is not really arguing for the independence of Parliament, but more for immunity from the consequences of parliamentary decisions.

The Supreme Court noted that Parliament itself has put limits on its powers, by enshrining a Charter of Rights and Freedoms in Canada’s Constitution.  So it is reasonable to decide that the Government be held liable for transgressions against the constitutional rules Parliament itself approved.  It is also reasonable to hold the Government accountable for any abuses of parliamentary power, as defined by centuries of anglophone jurisprudence.

Once again the Government’s case fails.

J’accuse!

Parliament is implicated in both cases, but the dungeon master is the Government, seeking to protect its rights at the expense of the rights of those elected by the people.  Just to clarify: when I speak of the Government, I am referring to ‘The Crown’, the constitutional entity.  I am not referring to a liberal or conservative or ndp government.  The Government defends its interests and seeks to expand its powers regardless of political leadership, although sometimes political actions aid the growth and power of Government.

Parliament represents the people, not The Government.  So when The Government seeks to limit the rights of Parliament, it is eating at the core of constitutional democracy.