Supreme Court rules governments can’t shield themselves from lawsuits stemming from bad legislation

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The Supreme Court of Canada has ruled that federal and provincial governments cannot be immune from lawsuits filed by people injured by unlawful legislation.

In a decision Friday, the court reaffirmed principles that leave governments open to civil liability for damages that may result from their legislatures passing laws that are later found to be clearly unconstitutional. The court rejected arguments from the Attorney General of Canada and 10 of his provincial counterparts who argued that governments should face less liability for their legislation — or none at all.

“By shielding the government from accountability even in the most egregious circumstances, absolute immunity would undermine the principles that require government accountability,” Chief Justice Richard Wagner and Justice Andromache Karakatsanis said in a letter on behalf of the five-judge majority.

The majority justices said they would reaffirm the principles set forth in a previous Supreme Court decision from 2002 that established that legislatures are vulnerable to civil lawsuits in rare cases where legislative thinking is “manifestly unconstitutional, bad faith, or an abuse of power.”

The justices were ruling in the case of New Brunswick resident Joseph Power, who tried to sue the federal government for damages arising from a law denying him the right to a pardon.

Mr Power was convicted of serious offences in the 1990s and served time. He then took a job as a medical radiotherapy technician but lost it when his employers found out about his past. In 2013, he applied for a pardon – or a stay of records, as it is now called.

But he was met with laws passed by Stephen Harper’s Conservative government that permanently stripped those convicted of certain crimes of the right to pardon. The laws were later found to be unconstitutional and struck down by the courts. But Mr Power argued that he was personally entitled to compensation for the fact that Parliament had passed such laws.

A New Brunswick judge found that Mr. Power had standing to sue the federal government in 2021. The province’s Court of Appeal agreed in 2022. That prompted the Attorney General of Canada to appeal to the Supreme Court of Canada last year, where federal lawyers asked for absolute immunity from such lawsuits.

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

“The reasons confirm that no one is above the law,” she said. “We are pleased that he will finally have his day in court.”

Toronto lawyer James Sayce, who filed an unrelated class action lawsuit on behalf of mentally ill prisoners subjected to solitary confinement, said the ruling is important and “maybe governments will think twice.”

He said governments “should be restrained from doing things that could harm people and that are clearly unconstitutional.”

Representatives from federal and provincial attorneys general argued for the ruling, which would make governments less vulnerable to such lawsuits, saying the courts were violating parliamentary privilege.

“Any exposure of the legislative process to judicial review, even indirectly, would have an unacceptable chilling effect on the ability of the legislature to fearlessly carry out its constitutional duties,” lawyer Alyssa Tomkins argued in court this winter, representing the office of federal House of Commons Speaker Greg Ferguson.

But the court disagreed. “Holding a legislator accountable for harm caused under the Charter when it gravely abuses its legislative power does not constitute an unwarranted judicial interference in the legislative process,” the majority ruling said.

The dissenting justices raised a variety of reasons for breaking with the majority, but they warned that courts must be careful about trying to peer into the minds and processes of lawmakers who pass laws that could later be ruled unconstitutional.

Justice Malcolm Rowe argued in the case that just as the British Parliament in the 17th century could not tolerate undue interference by the King, so the Canadian Parliament should similarly oppose infringements arising from the interpretation of the 1982 Charter of Rights and Freedoms.

“Absolute immunity in relation to the preparation, drafting and enactment of legislation necessarily flows from the need to enable the Crown to act freely within its legislative powers to make and adopt legislation,” Justice Rowe wrote.

He stated that “judges cannot supervise the consideration of legislation any more than members of parliament can supervise the preparation of our judgments.”