It is often said that when Uncle Sam coughs, we all catch colds here in the North. And there is little evidence to suggest that the influence of ideological priorities from American campuses has made its way to our home. Could the US Supreme Court’s decision in Trump v. United States also influence the level of immunity to be granted to our political leaders?
The jugement
The judgment has been widely discussed and summarized, but it is important to review its broad outlines here. According to the court, the U.S. Constitution “confers upon a former president absolute immunity from criminal prosecution for acts within his constitutional authority. And he is entitled to a presumption of immunity from prosecution for all his official acts. There is no immunity for unofficial acts.”
As to what distinguishes official acts from unofficial acts, the Court does not rule. Many have criticized it for that, but as the judgment makes clear, citing the decision in Zivotofsky v. Clinton, the Supreme Court is a court of “ultimate review, not of first glance.”
Its impact
Supporters on all sides quickly seized on the judgment to make it a political argument justifying their crusade. Is this the disappearance of the rule of law as some suggest? The sentence deserves to be more nuanced. The rule of law means that no one is above the law. Will this judgment undermine these foundations?
First, we are talking about three levels of immunity and not the Manichean reading that has been conveyed. If it is a responsibility attributed by the Constitution to the President, his immunity is absolute. If it is an action taken during an official act, there is a presumption of immunity. It is important to note here that the President is presumed and not deemed to enjoy immunity. Since the presumption is not irrefutable, prosecutions are always possible, but with an increased burden of proof. Finally, unofficial acts are not covered by immunity. Some will object here that an American President is President 24 hours a day or that it will be easy to organize things by meeting the required thresholds, but let the courts debate that as the Supreme Court suggests.
One thing is certain: it is doubtful that invalidating a lost election is part of the President’s constitutional responsibilities, or even of the official actions he can take. If this reasoning holds, several of the accusations brought against Donald J. Trump would then not be covered by immunity. Did his supporters rejoice too quickly? The judgment would then not bring the announced catastrophe. Only the future will assure us of that.
And at our place?
First, we know that court decisions are not binding on Canadian and Quebec courts. But do they influence them? Not only is this possible, it is probable. National law occasionally draws inspiration from related decisions in other jurisdictions in order to resolve, for example, a legal impasse. It is therefore interesting to see what the state of the law is regarding the immunity of our leaders: are we facing such an impasse?
He makes us answer in the negative. We note first that several positions already enjoy a significant level of immunity from prosecution. This is particularly the case for judges. Furthermore, the Act respecting Public Inquiry Commissions specifies that “Commissioners enjoy the same immunity and privileges as judges of the Superior Court, for any act done or omitted in the performance of their duties” (s. 16). And in turn, several other office holders—this is the case for the Auditor General, for example—can be invested “with the powers and immunity of a commissioner appointed under the Act respecting public inquiry commissions, except the power to impose a sentence of imprisonment.” (s. 49 of the Auditor General Act).
Immunity given to the State
But what about our political leaders, and in particular, the members of our executives, including the Prime Minister and his ministers? Does not the Canadian Charter of Rights and Freedoms—which applies to our governments—specify that all are equal before the law?
However, there is a significant level of immunity granted to members of the executive for acts carried out in the exercise of their functions.
This immunity granted to agents of the State stems from the immunity given to the State itself against the application of laws since it is then the State that acts through its agent. This immunity comes from the Interpretation Act (s. 17) which specifies that, unless explicitly indicated otherwise (i.e. a section of the law that establishes that this law applies to the State, as is the case with the Charter of Human Rights and Freedoms (s. 54)), no text of law can bind the State. In return, the actions taken by an agent on behalf of the State can only be those that the law authorizes.
In our country, the question that must be asked to determine whether immunity applies or not is therefore to determine whether the acts complained of were committed in the specific exercise of the functions of the agent of the State or simply on the occasion of these functions. This distinction is much more precise than that made by the American Supreme Court. As Justice Dickson of the Supreme Court of Canada argued in the Eldorado Nuclear case, “when the agent exceeds the ends of the State, he acts personally and not on behalf of the State, and he cannot invoke the immunity enjoyed by the agent of the State.”
In other words, when the agent acts on behalf of the State and his action is authorized by law, since the State cannot be sued, the agent benefits from the same immunity that applies to the State; but as soon as he no longer acts on behalf of the State, he benefits from no immunity.
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Our law therefore sets much clearer guidelines regarding the immunity of State agents than those which exist in the United States and protects us from a drift whose influence could be attributed to the judgment rendered in Washington on 1 July.