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The only explicit constitutional protections in Canada against retrospective legislation are found in sections 11(g) and (i) of the Canadian Charter of Rights and Freedoms. Section 11(g) provides that no one shall be found guilty of an offence unless at the time of the relevant act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations. Section 11(i) confines sentencing to the range of sanctions available at the time of the commission of an offence. However, both these protections are subject to the legislative override provisions of section 33(1) of the Charter and obviously neither of them in any event covers the kind of retrospective legislation that was used to deal with the situation in Eurig Estate. The only other potential source of protection against such legislation that could be raised is section 7 and its requirement that deprivations of life, liberty and security of the person be constrained by adherence to the principles of fundamental justice. However, life, liberty and security of the person has been construed consistently as not including economic and property rights.

It is also noteworthy that the Supreme Court of Canada postponed the operation of the declaration of invalidity of the subordinate legislation in issue in Eurig for six months in a manner that might be read as wanting to give the province an opportunity to rectify the situation by passing intra vires primary legislation.

Whether the exemption of the Eurig Estate from the operation of the new law was an act of generosity or constitutional necessity is a fascinating question. Certainly, there are precedents for the legislative reversal of Supreme Court of Canada judgments. See e.g. the K.V.P. Co. Ltd. Act, 1950 (Ont.) dissolving the injunction granted in K.V.P. v. McGie, [1949] S.C.R. 698. However, as far as I am aware, those legislative reversals have never been contested. What is also clear is that the Supreme Court of Canada is showing an increasing willingness, outside of the Charter of Rights and Freedoms, to read guarantees of judicial independence into the Canadian constitution by reference to the Preamble to the Constitution Act, 1867 and sections 96-100 of that Act. See e.g. Reference re Remuneration of the Provincial Court Judges of Prince Edward Island, [1997] 3 S.C.R. 3 (on the Preamble). Thus, I think a case could be made quite strongly and without reliance on the Charter for the same outcome in Canada were the facts of Liyanage v. The Queen to be replicated here. Whether, however, this growing sense of a constitutionally protected independent judiciary would extend as far as dooming any legislative reversal of a Supreme Court of Canada judgment outside of the domain of the criminal law is a rather more problematic matter.

On the middle question, I would be interested in any reactions by other correspondents on whether, absent the legislative reversal, the judgment in Eurig would have triggered successful claims by all other estates which had previously paid the ultra vires tax. Certainly, before the introduction of the Bill resurrecting the tax, there was much talk in the media of class action suits on behalf of groups of executors.

David Mullan.