Last week, the Supreme Court of Canada released a decision that shook the foundations of Canada’s constitutional structure.

The plaintiff, Joseph Power, brought an action against the Crown in which he alleged that the laws that rendered him ineligible for a criminal record suspension were unconstitutional. He also sought damages under s.24(1) of the Charter alleging that his inability to obtain a suspension had prevented him from finding gainful employment. The relevant legislation was found to be unconstitutional in other cases, and so the only issue for the Court was whether the Crown—the executive branch of the state—could be liable in damages for acts committed during the legislative process.

By a slim 5-4 majority, the Supreme Court said that it could (with two of the four dissenters offering limited agreement with the majority). Power’s case will therefore be permitted to proceed on the merits. Going forward, the Crown will be on the hook to pay damages where a court determines that unconstitutional legislation was enacted in “bad faith,” is “clearly unconstitutional,” or is an “abuse of power.”

It is difficult to overstate the radical shift the decision in Power represents. It is uncontroversial that courts can review legislation, but they have historically steered clear of the legislative process itself. There are sound reasons for this rooted in the Constitution.

Parliament and the provincial legislatures are protected by the twin principles of parliamentary privilege and parliamentary sovereignty. The former is expressly codified in the Constitution Act, 1867 and both have been essential features of Westminster parliamentary systems for over 300 years. Together, these principles ensure that the other branches of state cannot interfere with the legislature’s internal workings. As recently as 2018, the Supreme Court reaffirmed that the judiciary is not permitted to scrutinize the lawmaking process.

The majority’s decision in Power subverts these core constitutional principles and implicitly overrules decades of the Court’s own jurisprudence. The judiciary has now established a beachhead on what was previously the sovereign territory of the legislature. Moreover, in putting Parliament “on trial,” as Justice Jamal (joined by Justice Kasirer) put in his partial dissent, the courts will be asked to determine whether the legislature acted in bad faith—an inquest that is wholly alien to the Canadian tradition.

Relatedly, the decision undermines Canada’s “separation of powers.” Under Canada’s Constitution, some state actors can wear multiple hats (for example, ministers are also members of Parliament), but the branches of state themselves—legislative, executive and judicial—are distinct and autonomous. At base, the separation of powers means that one branch cannot infringe upon the powers of another. One could scarcely conceive of a more blatant intrusion than scrutiny of, and damages for, the legislative process itself.

Power also offends the separation of powers by holding the Crown liable for the acts of the legislature. While the concept of Crown liability for damages is well-accepted in Canada, both under the common law and pursuant to s.24(1) of the Charter, that liability has always been anchored to the acts of the Crown and its agents—never to Parliament. Power extends this historic concept of Crown liability without explaining how one branch of the state can be liable for the acts of another. Does this now mean the Crown is also vicariously liable for unconstitutional acts of the judiciary?

Underlying the majority’s decision is the notion of “Charter Supremacy.” The implication of Power is that the adoption of the Charter in 1982 was nothing short of a revolution, upending Canada’s prior order, and establishing a new hierarchy of constitutional law in which the Charter—whose meaning is ever-changing—stands at the apex. Put bluntly, this is not the Constitution our country adopted.

The Charter is certainly the most recognizable part of the Canadian Constitution in the public mind, but it is still just one part. Canadian courts have never wavered from the view that one part of the Constitution cannot supersede or displace another. As Justice Rowe (joined by Justice Côté) put it in his scathing dissent, the Charter did not mark a “clean break” with Canada’s “existing constitutional structures.”

The Charter must therefore be interpreted consistently with Canada’s pre-existing constitutional texts, structures, and principles. Section 24(1) empowers a court to grant a remedy that is “appropriate and just in the circumstances.” It does violence to the words of s.24(1) to interpret “appropriate and just” to include a remedy that is contrary to other parts of the Constitution.

Power comes on the heels of Chief Justice Wagner—the co-author of the majority’s decision—holding a press conference (itself somewhat unusual for a sitting chief justice), in which he lamented “disinformation” and its ability to undermine people’s trust in institutions. The chief justice is understandably concerned about maintaining public confidence in the courts. But to the extent that confidence is in jeopardy, it is at least arguable that the proximate cause is not disinformation from without but disregard from within.

Power is unfortunately a case in point. In infringing upon the legislative branch, the Court has also disregarded the limits of its own constitutional role, and, in so doing, has risked eroding the public’s trust.

In addition to expanding the scope of its own power of judicial review, the Supreme Court has now endowed the judiciary with unprecedented authority over the public purse. Whereas Charter damages for executive conduct were previously limited to a narrow set of individuals who had particular interactions with the state (for example, persons who endured cruel and unusual treatment at the hands of rogue police officers), damages caused by legislation means a theoretically limitless class of claimants, and thus potentially exorbitant damages awards. Even if future decisions narrow the availability of damages to plaintiffs who have been seriously harmed, their collective damages awards are still likely to far exceed the mostly nominal awards we have seen to date.

It should therefore surprise no one if legislatures now invoke the Charter’s notwithstanding clause under s.33 with even greater regularity than they have in recent years—though even that might prove ineffective since the Supreme Court could potentially find that damages under s.24(1) can still be awarded where s.33 has been invoked. The notion that a law could operate (per s.33) but still give rise to a damages award is conceptually incoherent and would be an egregious misinterpretation of the Charter. But this position already has some support in the academy—and in the wake of Power, it can no longer be considered so far-fetched.

In the circumstances, it would be entirely proper for the federal government to spearhead a constitutional amendment to restore institutional balance. Attempts at grand amendments to the Constitution are bound to fail; a surgical amendment of this nature could very well succeed, however. Seven provinces representing 50 percent of the population would need to sign on, but this seems plausible since, presumably, every province would want to insulate itself from potentially significant damages awards and protect the independence of its internal legislative processes. Indeed, the provinces’ attorneys general were united before the Supreme Court in opposing the position the majority ultimately adopted.

Failing an amendment, it will be left to trial and intermediate appellate courts to pick up the pieces. Even granting Power’s premise that an incorporeal legislature could somehow exhibit bad faith, it remains an open question of how bad faith will be proven in a particular case. What sort of evidence will tend to support or refute an allegation that the legislature—as opposed to any individual legislator—acted in bad faith? What documents will the Crown be compelled to produce for discovery? What privileges, if any, will it be able to assert? These questions and more will need to be answered by lower court justices, who will be faced with the unenviable task of developing doctrine from scratch.

Legal uncertainty begets litigation. Trial courts may ultimately apply Power narrowly, but this will not stop ambitious lawyers from commencing claims, at least initially, given the potential upside. Should that occur, our already overburdened justice system will experience further strain, leading to longer delays for ordinary litigants, and increased costs for Canadian taxpayers, who will also be forced to bankroll whatever damages awards are made.

And public opinion will respond accordingly.

On the 80th anniversary of D-Day The Globe and Mail ran his photo on the front page. He was in full military dress—a poppy on his lapel and a string of medals and ribbons across his chest —as he walked among the graves of the Canadian War Cemetery in Normandy, not far from Juno Beach where the Canadians landed. The website of The National Post had a video of him relating his exploits from that day and for 100 years old he was as sharp as the proverbial tack. I’m talking about Richard Rohmer.

He was flying above the beaches during history’s greatest military adventure and I distinctly remember him telling me about it 40 years ago. I was doing a magazine profile on this man who wrote novels that were desecrated by the reviewers.

“There is so much cardboard in a Rohmer novel you could ship a koala bear back to Australia in it,” said Larry Zolf, journalist and erstwhile book reviewer who got sued by Rohmer for a newspaper review of Balls!, his fifth novel. The suit was dropped after the paper printed a statement saying there had been no intent to pass comment on the author.

Canada always remained front and centre in his fiction, but he also wrote non-fiction books about war. Rohmer has published more than 30 books, the most recent in 2013. It was a novel about Sir John A. Macdonald and the Fathers of Confederation arriving in London, England in 1866 for discussions to create this new country in North America. Rohmer was 89 when it came out. Right now he has a new manuscript making the rounds with publishers. Yes, at 100 years of age. On top of those literary pursuits he has enjoyed parallel careers as a lawyer, political advisor, what have you.

Indeed, Rohmer has succeeded at much in life, sort of like Forrest Gump that way because he’s a character whose path always seems to cross with famous people. During the recent D-Day ceremonies he spoke with U.S. President Joe Biden at Omaha Beach, and back at Juno Beach Prime Minister Justin Trudeau, French President Emmanuel Macron, and Prince William lined up to see him.

The first U.S. president he ever met was Dwight Eisenhower, but that was in Ike’s twilight years. As for royalty, the former Prince Charles—now King Charles—is a long-time friend. Notwithstanding a very long list of interactions with the rich, famous, and powerful, Rohmer remains best defined by D-Day, along with the Battle of Normandy and the liberation of Holland. He was in all of it.

On June 6, 1944, the young reconnaissance pilot saw the entire invasion from the air. When I was doing that magazine piece he described it to me in meticulous detail. Then he took out his medals and mentioned the time he came face-to-face with U.S. General George S. Patton. Patton, who stood an imposing 6’2”, was inspecting the Canadian pilots. He got to the diminutive Rohmer—all 5’8” of him—and stopped.

“Boy,” asked the man known to all as Old Blood and Guts. “How old are you?”

“I’m twenty, sir,” Rohmer replied as Patton’s eyes explored the aircraft beside him.

“Do you fly that goddamn airplane?”

“Yes, sir.”

“Son of a bitch,” Patton said.

Six weeks after D-Day reconnaissance pilot Rohmer spotted a German staff car rushing off with five men inside. He radioed its position and a Canadian Spitfire shot up the car. It veered off the road and crashed, killing the driver and wounding the others. One of the wounded was Field Marshall Erwin Rommel. Germany’s top general. Rommel survived, but his war was over and three months later he popped a cyanide tablet and committed suicide. In November 1944, Rohmer flew the last of his 135 missions.

We once had lunch in a swanky Toronto restaurant and he, being like Forrest Gump, who else walks in but billionaire businessman Frank Stronach, who built international auto parts company Magna. Stronach—he’s been in the news for other matters as of late—passed our table and Rohmer the lawyer didn’t miss a beat. He stood up, introduced himself, grabbed Stronach’s hand, and pressed a business card into his palm.

“If you ever need a lawyer,” he said.

Stronach might need one now but Rohmer didn’t practice that kind of law. For him it was municipal law and land development; a notable client was E. P. Taylor, the Canadian industrialist of his day. The legal work paid the bills for all the time spent writing novels, which along with flying airplanes, was his passion.

In 1942, on his 18th birthday, Rohmer enlisted in the Royal Canadian Air Force and up to that point had thought himself a failure. A year earlier he had flunked school and forged his father’s signature on his report card, which got him kicked out of the house. The senior Rohmer was a pro football player, a running back with the Hamilton Tigers which won the 1929 Grey Cup. If that wasn’t enough, three uncles were lacrosse players and a younger brother played pro hockey. Alas, Rohmer was not of that mold.

But he made his mark and more in the armed forces. He retired as a wing commander in 1953 and has been involved in D-Day events for decades. In 1975 he was promoted to brigadier-general and in 2015 honourary lieutenant-general. Today he goes by Major-General (retired) Richard Rohmer.

This past June 5, just before leaving for Normandy as part of the Canadian delegation, he was interviewed by The Peterborough Examiner and asked about D-Day. Said Rohmer: “It’s hard for anybody who’s alive now to understand how deep that change could have been if we had failed. The people who were the enemy were very hard at work trying to conquer the rest of the world. We made sure they didn’t.”

That same newspaper once called him “one of Canada’s most colourful figures of the past half-century.” And rightly so. After all, there is Rohmer the best-selling novelist and author of non-fiction, the lawyer, personal advisor to such people as former Ontario premier John Robarts, not to mention officer of the Order of Canada, former chancellor of the University of Windsor, and a list of honours that piled up over the years and just goes on and on.

No surprise but he once had a one-on-one meeting with Prime Minister Pierre Trudeau during which he laid out his plans for developing the Canadian North. Rohmer even organized a conference about it with such attendees as former prime minister Lester Pearson, former Manitoba premier Duff Roblin, and long-time Conservative strategist Dalton Camp. Everyone seemed interested.

Except Trudeau.

It isn’t widely known, but in 1980 Rohmer published a book of poetry under a pseudonym. This was eight years after he chaired the Royal Commission on Book Publishing. Inside the jacket, with haughty pride, it said: “published without the assistance of the Canada Council.” That in a nutshell sums up Rohmer because the man always did things his way. Much like Frank Sinatra in that regard. Hmm. Did those two guys ever meet?

I wonder.