State Not Fully Immune for Enacting Charter-Violating Laws, Says Supreme Court

The Supreme Court of Canada is seen in Ottawa on Aug. 10, 2022. The Canadian Press/Adrian Wyld

Canada’s highest court has ruled that the state does not have full immunity if adopted legislation is subsequently found to be unconstitutional.

“The state may be required to pay damages for making unconstitutional legislation if it is clearly unconstitutional, or was in bad faith or an abuse of power,” says a case brief of the Supreme Court’s decision delivered on July 19.

The decision, adopted by a 5–4 majority and co-written by Chief Justice Richard Wagner, was made in the case of Canada (Attorney General) v. Power.

Joseph Power was convicted of two indictable offences n 1996. He served his eight-month sentence and was released later that year. At the time of his conviction, one could apply for a record suspension five years after one’s release, which means having one’s criminal record removed from the Canadian Police Information Centre database.

In 2011 while working for a New Brunswick hospital as a medical radiation technologist, Mr. Power’s employer received a tip that he had a criminal record and suspended him from his job.

Mr. Power applied for a record suspension in 2013, but laws passed in 2010 and 2012—the Limiting Pardons for Serious Crimes Act and the Safe Streets and Communities Act—retroactively made him ineligible. His application was denied, and his criminal record also made him ineligible for membership in the governing bodies for his profession, thus preventing him from finding work in his profession.

Mr. Power sued the federal government in 2018, alleging that the transitional provisions of the two bills enacted in 2010 and 2012 were unconstitutional. He also sought damages under section 24(1) of the charter, arguing that the legislation was enacted in “bad faith, abusively, and with knowledge of its unconstitutionality,” according to the Supreme Court decision.

Section 24 says anyone whose rights or freedoms guaranteed by the charter have been infringed upon or denied can apply to a court to seek remedy.

The Supreme Court noted that the transitional provisions of the two pieces of legislation from 2010 and 2012 have been found unconstitutional by courts in other matters, a position supported by the attorney general.

On the question of whether the Crown can be held liable in damages for having enacted such bills into law, in Canada (Attorney General) v. Power, the attorney general argued that anything less than absolute immunity would be inconsistent with the foundational constitutional principles of parliamentary sovereignty, the separation of powers, and parliamentary privilege.

Mr. Power countered that these principles do not require absolute immunity and that they could be in conflict with constitutionalism and the rule of law. The Supreme Court agreed.

“An absolute immunity fails to properly reconcile the constitutional principles that protect legislative autonomy, such as parliamentary sovereignty and parliamentary privilege, and the principles that require the government be held accountable for infringing Charter rights, such as constitutionality and the rule of law,” wrote Justice Wagner and Justice Andromache Karakatsanis in the decision.

In a dissenting opinion, Justice Suzanne Côté and Justice Malcolm Rowe said the attorney general’s appeal should be allowed. They wrote that writing and enacting legislation involves parliamentary privilege, “which is fundamentally at odds with awarding damages against the Crown in the manner sought.”

“Both parliamentary privilege and the Charter constitute components of the Constitution of Canada. Neither one subordinates the other.”

Justice Department spokesperson Ian McLeod told The Epoch Times in a statement that the decision is being “carefully” reviewed to evaluate its impact on ongoing cases.

The Canadian Constitution Foundation, which intervened in the case, said it was pleased with the ruling.

“Today’s decision gets it right by clarifying that although claimants who seek damages will have a high test to meet, they will still be able to hold governments to account where the Constitution requires damages to vindicate their rights and compensate them,” the foundation’s executive director Joanna Baron said in a statement.

The civil liberties group said having to pay damages will help deter governments from knowingly passing laws in conflict with the Constitution.

“If the freezing of bank accounts during the freedom convoy is any indication, we still can’t trust Parliament to never enact unconstitutional laws,” said the foundation’s litigation director Christine Van Geyn.