Supreme Court rules governments cannot shield themselves from lawsuits prompted by bad legislation

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The Supreme Court of Canada has ruled federal and provincial governments cannot make themselves immune to lawsuits from people who are harmed by unlawful legislation.

In a decision released Friday, the court reaffirmed principles that leave governments open to legal liability for civil damages that can result from their legislatures passing laws that are later found clearly unconstitutional. The court rejected arguments by the Attorney-General of Canada and 10 of its provincial counterparts that claimed governments should face less liability for their law-making – or even none at all.

“By shielding the government from liability in even the most egregious circumstances, absolute immunity would subvert the principles that demand government accountability,” Supreme Court Chief Justice Richard Wagner and Justice Andromache Karakatsanis said in writing for the five-judge majority.

The majority judges said they would reaffirm the principles of a previous 2002 Supreme Court decision, which established that legislatures are vulnerable to civil actions in rare cases that arise from legislative thinking that is “clearly unconstitutional or was in bad faith or an abuse of power.”

The justices were ruling in a case involving a New Brunswick man, Joseph Power, who has been attempting to sue the federal government for damages flowing from laws that denied him his right to a pardon.

Mr. Power was convicted of serious criminal offences in the 1990s and served his time. He then went to work as a medical radiation technologist but lost his job after employers learned of his past. In 2013, he sought a pardon – or records suspension as it is now called.

But he encountered laws passed by Stephen Harper’s Conservative government that made convicts of some criminal offences permanently ineligible for pardons. These laws were later deemed unconstitutional and overturned by the courts. Mr. Power then claimed he was personally owed damages for Parliament having passed such laws in the first place.

A judge in New Brunswick agreed that Mr. Power had the right to sue the federal government in 2021. The province’s appeal court agreed in 2022. This led the Attorney-General of Canada to appeal to the Supreme Court of Canada last year, where federal lawyers asked for absolute immunity from such suits.

Lex Gill, a Montreal-based lawyer acting for Mr. Power, called the ruling a “major victory for civil liberties.”

“The reasons confirm that no one is above the law,” said Ms. Gill of Trudel, Johnston & Lésperance. “We are glad that he will finally get his day in court.”

She said Mr. Power is now clear to reactivate his lawsuit, which has been in limbo for years as government officials repeatedly argued that he had no right to sue them. “What this means practically now is that he is going to be allowed to proceed on the merits of his case.”

Representatives for the federal and provincial attorneys-general had argued for a ruling allowing governments to be less vulnerable to such lawsuits, saying courts were encroaching on parliamentary privilege.

“Any exposure of the legislative process to judicial scrutiny, even if indirect, would lead to an impermissible chilling effect on the legislature’s ability to proceed fearlessly in its constitutional duties,” lawyer Alyssa Tomkins argued before the court this winter. She was representing the office of the federal Speaker of the House of Commons, Greg Fergus.

But the court disagreed. “Holding the legislature liable for Charter damages when it seriously misuses its legislative power does not constitute undue judicial interference in the legislative process,” the majority ruling says.

The Supreme Court majority ruled there are rare circumstances where damage-seeking lawsuits can arise. They could include when a legislature passes a statute in a way that is “reckless or wilfully blind as to its unconstitutionality” or in which “the state acted for an improper purpose, or was dishonest.”

Legal observers say that lawmakers across Canada will now have to keep these clauses in mind as they craft their laws.

“That incentivizes due diligence. That incentives getting legal advice,” said Sujit Choudhry, a lawyer at Toronto’s Haki Chambers.

Dissenting judges in the case raised different reasons for breaking with the majority view. But they all warned that courts must be wary of trying to peer into the minds and processes of parliamentarians who pass laws that may be later found unconstitutional.

Justice Malcolm Rowe argued that just as the British Parliament of the 17th century could not tolerate undue interference from the king, then Canada’s Parliament should similarly stand its ground against encroachments arising from interpretations of the 1982 Charter of Rights and Freedoms.

He said that “judges can no more oversee the consideration of legislation then can members of Parliament oversee the preparation of our judgments. "