Laws must be 'clearly unconstitutional, or represent 'bad faith'
The state does not have absolute immunity from liability for damages arising from unconstitutional legislation that infringes Charter rights, the Supreme Court of Canada has found.
The decision in Canada (Attorney General) v. Power, 2024 SCC 26 was released Friday morning. The appeal concerned whether the state can be required to pay damages for preparing, drafting, and enacting legislation that is later found to be unconstitutional. In a split decision, the court found that the state can be liable for Charter damages if the legislation is “clearly unconstitutional or was in bad faith or an abuse of power.”
“It's an important case for civil liberties for the rule of law,” says Louis-Alexandre Hébert-Gosselin, who acted for the respondent, Joseph Power. “The majority has demonstrated a good understanding of constitutional remedy. It's a really important case for those who had their fundamental rights violated and just want to get a just and appropriate remedy from the courts.”
Instead of changing the law, the ruling respects the precedent from Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13, which imposed a high, but workable, threshold for damages stemming from unconstitutional legislation, he says. Hébert-Gosselin represented Power with co-counsel Lex Gill.
The “big debate” in the case was over how to strike a balance between parliamentary privilege and individual human rights under the Charter, says Neil Abraham, who acted for the David Asper Centre for Constitutional Rights, an intervenor.
Canada (Attorney General) v. Power could also have implications for cases where unconstitutional legislation is passed with the help of the notwithstanding clause under s. 33, he says. It raises the question of whether a person could seek damages for harm resulting from such an unconstitutional law with lawmakers’ invocation of s. 33 suggesting that they knew the law was “clearly unconstitutional.”
“I think that's a really interesting question that this decision leaves the door open to, and we'll see how that plays out in cases that are currently in the system and working their way up.”
The BC Civil Liberties Association, which intervened in the case, said it was “heartened” by the SCC’s rejection of Canada’s request for absolute immunity.
“The idea that state actors can ever have absolute immunity is completely incompatible with the rule of law,” said BCCLA litigation director Vibert Jack in a statement. “Canadians who are harmed by unconstitutional laws deserve to be compensated, and legislatures that abuse their power need to be held to account.”
Joseph Power was convicted of two indictable offences in 1996. At that time, people convicted of indictable offences could apply for a record suspension five years after their release. By the time Power applied, however, Parliament had enacted legislation containing transitional provisions which retroactively made him permanently ineligible for a record suspension. Following his release from prison, he had studied to become an X-Ray technician, but he was unable find work because of his criminal record.
In a handful of cases at provincial and federal courts, the transitional provisions were found to be unconstitutional for unjustifiably violating s. 11(h) and (i) of the Charter. Under s. 11(h), a person charged with an offence has the right not to be tried or punished for an offence for which they have already been tried or punished. Under s. 11(i), a person has the right to the lesser punishment if the punishment for an offence has been varied between the time of commission and the time of sentencing. The courts found that the transitional provisions effectively elevated the punishment for people convicted before the law’s enactment.
The SCC’s majority consisted of Justices Richard Wagner, Andromache Karakatsanis, Sheilah Martin, Michelle O’Bonsawin and Mary Moreau. Justices Mahmud Jamal and Nicholas Kasirer dissented in part. Justices Malcolm Rowe and Suzanne Côté dissented.
Writing for the majority, Wagner and Karakatsanis laid out four reasons why limited immunity for the state regarding the enactment of legislation that is subsequently declared unconstitutional is “consistent with and best reconciles the constitutional principles underpinning both legislative autonomy and accountability.”
First, Parliamentary sovereignty does not put Parliament above the constitution. Second, limited immunity is consistent with the separation of powers. Third, courts can apply the limited immunity threshold while respecting parliamentary privilege. And finally, absolute immunity is inconsistent with “the principles recognized in the jurisprudence on constitutional remedies.”
“A high bar for immunity, set by the Court in Mackin, has been good law for over two decades,” said Wagner and Karakatsanis. “It has resulted neither in chilling good governance, nor in a floodgate of claims against the state for damages. Although the Court may depart from precedent where there is a compelling reason to do so, there are no compelling reasons to overrule Mackin.”
Justices Kasirer and Jamal would have allowed the appeal in part. They would have found that the Crown has absolute immunity from damages under s. 24(1) of the Charter when preparing and drafting legislation that is later found unconstitutional. This is protected by the freedom of speech and control over parliamentary proceedings which is granted by parliamentary privilege. For the enactment of legislation, Kasirer and Jamal would have clarified Mackin by only allowing damages for “clearly unconstitutional enactments,” but not for bad faith or abuse of power.
According to Côté and Rowe, parliamentary privilege and the Charter constitute components of the Canadian constitution, with neither subordinating the other. They would have found that the state cannot be liable for damages for preparing, drafting, or enacting legislation that infringes someone’s Charter rights and is later to be found unconstitutional.
“Parliamentary privilege is rooted in the earliest chapters of Canada’s constitutional history and reflects an inherited legacy of struggle between the Crown and Parliament in the United Kingdom, one that reaches back to Parliament’s origins,” said Rowe, who wrote their dissent. “The Court has a responsibility to preserve the inheritance of Canada’s constitutional order. It should not be discarded, and parliamentary privilege should not be subordinated to s. 24(1) of the Charter. To do so would be to depart from precedent and to do so unwisely.”
