The decision
In a decision handed down on July 19, 2024, the Supreme Court of Canada ruled in favor of our client, the respondent Mr. Joseph Power, represented by Me Lex Gill and Me Louis-Alexandre Hébert-Gosselin. The decision confirmed that the state can be required to pay damages under subsection 24(1) of the Canadian Charter for rights violations caused by legislation that was clearly unconstitutional, in bad faith or an abuse of power. This decision is a landmark ruling in constitutional law and involved more than 20 interveners on appeal.
The Supreme Court concluded that the absolute immunity sought by the Attorney General of Canada would have improperly shielded the state from any responsibility to provide redress for Charter violations even in the most serious cases, and would have contravened other key constitutional principles in the process.
We are proud to have represented Mr. Power pro bono before the Supreme Court and to have obtained this important victory for the protection of human rights in Canada.
History of the Appeal
In 1996, Mr. Power was convicted of two offences for which he served his sentence without incident. When he was sentenced, it was possible to apply for a suspension of his criminal record five years after his release. However, legislation passed in 2010 and 2012 removed this possibility. These provisions, which were subsequently declared unconstitutional, have had a serious impact on Mr. Power’s life. Because of his record, he lost his job and he was unable to find work in his chosen profession.
In 2018, Mr. Power filed a statement of claim against Canada before the New Brunswick Court of King’s Bench. He sought a declaration of invalidity of the legislative provisions that prevented him from obtaining a record suspension under section 52 of the Constitution Act, 1982, and damages based on subsection 24(1) of the Charter for the violation of his rights caused by the enactment of the legislative provisions. The legislative provisions in question were later declared unconstitutional in several provinces and by the Federal Court.
Canada asked the first instance judge the following two questions:
Can the Crown, in its executive capacity, be held liable in damages for government officials and Ministers preparing and drafting a proposed Bill that was later enacted by Parliament, and subsequently declared invalid by a court pursuant to s. 52(1) of the Constitution Act, 1982?
Can the Crown, in its executive capacity, be held liable in damages for Parliament enacting a Bill into law, which legislation was later declared invalid by a court pursuant to s. 52(1) of the Constitution Act, 1982?
The first instance court answered both questions in the affirmative. It held that the State does not enjoy absolute immunity, but rather qualified immunity from an award of damages under the Charter arising from unconstitutional legislation.
Canada appealed to the New Brunswick Court of Appeal, which dismissed the appeal. Following Canada’s appeal, the Supreme Court also ruled in favor of Mr. Power.
The decision can be read here.
