Crown immunity for the enactment of legislation later declared unconstitutional before the Supreme Court of Canada

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 threshold is met when the state conduct is shown to have been “clearly wrong, in bad faith or an abuse of power” (par. 78).

The Court of Appeal confirmed the decision of the motion judge, determining that the Crown and its officials do not enjoy absolute immunity when exercising a legislative function.

Decision

The Court of Appeal’s analysis relies primarily upon Mackin, a widely cited Supreme Court decision in which the New Brunswick government had enacted legislation abolishing supernumerary provincial judges. The judges subsequently sued, claiming that having to choose between returning to sit full time or retiring infringed upon their security of tenure and financial security as aspects of judicial independence. In this case, while the Court agreed that the legislation was unconstitutional, it established what constituted the burden of proof to obtain damages under s. 24 of the Charter⁵ in the case of unconstitutional legislation:

“According to a general rule of public law, absent conduct that is clearly wrong, in bad faith or an abuse of power, the courts will not award damages for the harm suffered as a result of the mere enactment or application of a law that is subsequently declared to be unconstitutional.” (par. 78).

Mackin argued that in the absence of such conduct, attaching liability to legislative action would prevent the government from acting effectively and efficiently. The conclusion was that, although they are rare, there are situations where damages may be obtained following a declaration of unconstitutionality, but that such an action cannot be combined with an action for a declaration of invalidity under s. 52 of the Charter.

The Court of Appeal states unequivocally that Mackin was the appropriate precedent in this case and established the high threshold that Mr. Power had to meet in order to obtain damages in his claim.

The Attorney General’s main argument is that Crown immunity is founded in the separation of powers, parliamentary sovereignty, and parliamentary immunity. While this was not explicitly discussed in Mackin, the Court remains headstrong that the Supreme Court nevertheless provided the answer to the question at hand.

First, the Attorney General alleges that attaching any liability to government action would constitute improper interference of the judicial branch into the legislative branch. The Court rejects this argument on the basis that an action based on s. 24 of the Charter, in the same way as an action based on s. 52, falls within the exclusive power of the judicial branch, reiterating, however, that the Mackin threshold must be met to succeed in claiming damages for legislation later declared unconstitutional.

Next, the Attorney General advances that anything short of absolute immunity would restrain the government, forcing it to consider future liability when exercising its legislative power. Seeing as Mackin outrightly rejected absolute immunity in favour of a threshold placing a very heavy burden on the person claiming damages for the unconstitutional legislation, the Court does not accept this argument either.

The Attorney General also pleaded that “by endorsing a theory of liability based on Parliament’s alleged bad faith or wilful blindness, the motion judge invited scrutiny of Parliament’s action and thereby disregarded well-established categories of parliamentary privilege” (par. 25). Again, the Court insists that Mackin provided the answer to the question of law that the Attorney General presented in his motion for determination and refuses to consider this argument.

Finally, the Attorney General claims that the motion judge misinterpreted Mackin and other Supreme Court jurisprudence with respect to Charter liability. The Court insists that the question of damages was a core issue in Mackin, and that the threshold was clearly identified and consequently applied by the motion judge. The application of other cases such as Doucet-Boudreau,⁶ in which the Supreme Court established that courts must be sensitive in their application of s. 24 of the Charter, and Mikisew,⁷ where it was unanimously held that the Federal Court was not statutorily enabled to review the passing of legislation, was rejected.

While the Court admits that the Attorney General might have gained traction had it not been for Mackin, it remains that the Supreme Court’s decision was the proper precedent to apply, and that the motion judge did not err in applying it to the question presented by the Attorney General.

Conclusion

On March 2, 2023, the Supreme Court granted leave to appeal to the Attorney General.

It remains to be seen whether the highest court will review the threshold it established in Mackin in favour of a reinforced Crown immunity against damages for legislation later declared unconstitutional.

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¹ Attorney General of Canada v. Power, 2022 NBCA 14.
² Limiting Pardons for Serious Crimes Act, S.C. 2010, c. 5, s. 10.
³ Safe Streets and Communities Act, S.C. 2012, c. 1, s. 161.
⁴ Mackin v. New Brunswick (Minister of Finance); Rice v. New Brunswick, 2002 SCC 13
⁵ Canadian Charter of Rights and Freedoms, s. 24(1), Part 1 of the Constitution Act, 1982, being schedule B to the Canada Act 1982 (UK), 1982, c. 11.
⁶ Doucet-Boudreau v. Nova-Scotia (Minister of Education), 2003 SCC 62.
⁷ Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40.