Introduction

On July 19, 2024, the Supreme Court of Canada delivered a landmark decision in the case of Canada (Attorney General) v. Power (2024 SCC 26), addressing the issue of government liability for damages arising from the enactment of unconstitutional legislation.

Background

The case originated with Joseph Power, who was convicted of two indictable offences in 1996. After serving his sentence, Power applied for a record suspension, a process that was available to individuals convicted of indictable offences five years post-release at the time of his conviction.

However, subsequent legislative changes by Parliament introduced transitional provisions that retroactively rendered him permanently ineligible for a record suspension. These provisions were later declared unconstitutional in other cases, and Canada conceded that their retrospective application violated sections 11(h) and 11(i) of the Canadian Charter of Rights And Freedoms.

Power initiated legal action against the Crown, seeking damages under section 24(1) of the Charter for the breach of his rights due to the enactment of the unconstitutional provisions. The central questions for the court were:

1. Whether the Crown could be held liable in damages for government officials and Ministers preparing and drafting a Bill later enacted and subsequently declared invalid.
2. Whether the Crown could be held liable in damages for Parliament enacting a Bill into law later declared invalid.

Judgment

The Supreme Court, in a majority decision, held that the Crown can indeed be liable for damages under section 24(1) of the Charter for the enactment of unconstitutional legislation. The Court affirmed that absolute immunity does not protect the government from liability when it enacts laws that infringe on Charter rights, especially when such legislation is clearly unconstitutional or enacted in bad faith or as an abuse of power.

Majority Decision

Chief Justice Wagner and Justice Karakatsanis, writing for the majority, emphasized that absolute immunity would undermine the principles of accountability and the rule of law. They outlined that the state could be liable for Charter damages if the legislation was clearly unconstitutional or enacted in bad faith, aligning with the precedent set in Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13. They further explained that the government must be held accountable for actions that infringe on individuals' Charter rights.

Dissenting Opinions

Justice Jamal, with Justice Kasirer concurring, partially dissented, arguing that while damages could be available for harms from clearly unconstitutional enactments, there should be an absolute immunity for the preparation and drafting of legislation due to parliamentary privilege and separation of powers concerns. Justices Côté and Rowe, in their dissent, argued for absolute immunity, stressing that any intrusion into the legislative process by the judiciary would disrupt the fundamental principles of parliamentary privilege and the separation of powers.

Importance

The Supreme Court’s judgment is significant for several reasons:

1. Clarification of Government Liability: It reinforces that the government cannot claim absolute immunity from damages when enacting unconstitutional laws, ensuring a check on legislative power.
2. Accountability and Rule of Law: The ruling underscores the importance of holding the government accountable for breaches of Charter rights, thereby promoting good governance and constitutional compliance.
3. Separation of Powers and Parliamentary Privilege: While maintaining the principle of separation of powers, the decision balances the need for legislative accountability without unduly infringing on parliamentary privilege.

Conclusion

The Supreme Court's decision marks a pivotal moment in Canadian constitutional law, delineating the scope of government liability for unconstitutional legislative actions.

By rejecting absolute immunity and affirming the possibility of damages under the Charter, the Court has reinforced the principles of accountability, the rule of law, and the protection of individual rights against legislative overreach.