Crown Immunity For The Enactment Of Legislation Later Declared Unconstitutional Before The Supreme Court Of Canada

• Law Firm: Langlois Lawyers, LLP
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Author: Mr Sean Griffin
• Published date: 21 April 2023

Introduction

On April 21, 2022, the Court of Appeal of New Brunswick rendered its decision in the case of Attorney General of Canada v. Power¹ as it pertains to the limits to Crown immunity in the context of a claim for damages for the enactment of legislation later declared unconstitutional.

In the decision under appeal, the Court of Queen's Bench found that Crown immunity is not absolute because it does not extend to conduct that is clearly wrong, in bad faith or an abuse of power.

On March 2, 2023, the Supreme Court of Canada granted leave to appeal from the judgment of the Court of Appeal.

Background

In 2018, Joseph Power applied for a declaration that transitional provisions contained in the Limiting Pardons for Serious Crimes Act² and in the Safe Streets and Communities Act³ were unconstitutional and claimed damages against the Attorney General of Canada (the "Attorney General").

Over two and a half decades before his claim, Mr. Power was convicted of sexual assault and sentenced to two eight-month terms of imprisonment to be served consecutively. After his release, Mr. Power studied and began working as a medical radiation technologist. When the hospital in which he worked received an anonymous phone call alleging that Mr. Power had a criminal record, he was suspended.

In 2013, when Mr. Power applied for a pardon, or "record suspension," the combined effects and transitional provisions of both statutes made him ineligible. He was terminated from his position at the hospital and was no longer eligible for membership with the medical radiation technologist governing bodies.

Mr. Power applied before the Court of the Queen's Bench seeking damages pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms, alleging that the adoption and application of the transitional provisions in question constituted conduct that was "clearly wrong, undertaken in bad faith, and abusive of government power." Before the pleading in this action, the Attorney General applied for a determination of two questions of law, under Rule 23 of the Rules of Court, which blend together in the following: "is there absolute state immunity with respect to the legislative action?"

The motion judge determined that there exists a threshold, albeit quite high, beyond which damages may be awarded for the adoption and application of legislative provisions which are later declared unconstitutional. Applying the Supreme Court's teachings in Mackin,⁴ the Court explained that the...