A legal advocacy group is intervening in a Supreme Court of Canada case considering whether governments can be sued for damages from laws later declared unconstitutional..New Brunswick resident Joseph Power was convicted of sexual crimes and sought a “record suspension” (pardon) to prevent him from losing his job as a medical radiation technologist..By the time he applied for a record suspension, the legislative regime changed and excluded his crimes from eligibility. He lost his job and became ineligible for further work in the field..Transitional provisions in the Limiting Pardons for Serious Crimes Act, 2010, and the Safe Streets and Communities Act, 2012, meant that the exclusion applied retroactively to crimes which occurred before the pieces of legislation were passed. The provisions were subsequently deemed unconstitutional in Chu v Canada, 2017 and PH v Canada, 2020..Power submitted that the provisions were “clearly wrong, taken in bad faith, and an abuse of power.”.The lower court applied a rule from an older SCC case called Mackin v New Brunswick to conclude that Crown immunity is not absolute..The Court of Appeal of New Brunswick ruled in favour of Power on April 21, 2022. However, the auditor general appealed the decision, and the SCC granted leave for appeal on March 2, 2023. .The Canadian Constitution Foundation has been granted leave to intervene in Attorney General of Canada v Joseph Power. The CCF is not taking a position on the merits of the case, but is weighing in on the issue of whether the Crown is entitled to absolute immunity..“The government is not entitled to absolute immunity from damages if they enact unconstitutional legislation that is clearly wrong, in bad faith or an abuse of power."."Suing the government for damages is one of the ways our system makes government accountable and the government cannot be permitted to immunize itself the way they are attempting to in this case,” said CCF Litigation Director Christine Van Geyn..“When a government enacts unconstitutional laws, there must be consequences for that. One of those consequences must be the ability to sue for damages when the threshold set out in Mackin is met"."If the Supreme Court accepts the argument from the attorney general that the Crown has absolute immunity for damages for unconstitutional laws, people will be unable to seek compensation when governments act in bad faith.”.The SCC hearing is scheduled for December, 2023. The CCF is represented in this case by George Avraam, Jennifer Bernardo and Rono Khan of Baker McKenzie. The CCF receives tax-deductable donations for its work at theCCF.ca/donate/..“We will argue that the current threshold from Mackin is the correct one. To deny Charter damages to people who have suffered from bad faith government action would be intolerable. While the threshold is high, the state does not deserve absolute immunity,” explained Van Geyn..University of Toronto legal student Alexandra Robbins offered an analysis of the case in TheCourt.ca in April..“It will be valuable to hear the SCC’s perspective on whether or not the separation of powers, parliamentary sovereignty, and parliamentary privilege can be respected while concurrently depriving the Crown of the benefit of absolute immunity. These concepts are fundamental to the Canadian legal order,” Robbins wrote..“Further, if the SCC does affirm Mackin, it may very well set out a clearer and more robust test for when damages can be sought in response to unconstitutional legislation.”
