The Supreme Court of Canada (“SCC”) will soon comment on the compelling question of how far Crown immunity stretches. Having granted leave to appeal in Attorney General of Canada v Power, 2022 NBCA 14, the SCC will soon provide clarity as to whether or not the Crown can be held liable for damages for passing legislation later deemed unconstitutional by the courts.
Joseph Power (the “Respondent”) was convicted of sexual crimes and sought a pardon (now called a “record suspension”) to prevent him from losing his job as a medical radiation technologist (Power, paras 5, 7). By the time Mr. Power applied for a record suspension, the legislative regime changed and excluded his crimes from eligibility (Power, para 8). He lost his job and became ineligible for further work in the field (Power, para 8). Transitional Provisions (the “Provisions”) in the new legislation, namely the Limiting Pardons for Serious Crimes Act, SC 2010, c 5 and the Safe Streets and Communities Act, SC 2012, c 1 meant that the exclusion applied retroactively to crimes which occurred before the pieces of legislation were passed (Power, para 9). The Provisions were subsequently deemed unconstitutional in Chu v Canada (Attorney General), 2017 BCSC 630 and PH v Canada (Attorney General), 2020 FC 393.
In Power, the Respondent sought damages from the Crown flowing from the enactment of the unconstitutional Provisions (Power, para 10). He submitted that the Provisions were “clearly wrong, taken in bad faith, and an abuse of power” (Power, para 10). This standard for holding the Crown liable for unconstitutional legislation stems from Mackin v New Brunswick (Minister of Finance); Rice v New Brunswick, 2002 SCC 13 [Mackin], where the SCC recognized that Crown immunity is strong but not absolute (Mackin, para 78). In Power, the motion judge applied Mackin and held that while the threshold for liability is extremely high, it is not insurmountable (Power, para 13). Thus, the Respondent could proceed with an action against the Crown.
The Crown appealed.
Issue on Appeal
Does the Crown enjoy absolute immunity in passing legislation which is subsequently deemed unconstitutional? (Power, para 16)
The Court of Appeal for New Brunswick’s (“NBCA”) decision was very simple: The Crown does not enjoy absolute immunity with respect to unconstitutional legislation because Mackin says so (Power, para 19).
The NBCA noted that in Mackin, the SCC clearly established that where legislation has been deemed unconstitutional, damages can be sought as a remedy under s. 24(1) of the Charter (Mackin, paras 78–81). Citing Mackin, the NBCA wrote:
In Mackin, the claim for damages was dismissed because the Supreme Court did “not find any evidence that might suggest that the government of New Brunswick acted negligently, in bad faith or by abusing its powers,” and because “[i]ts knowledge of the unconstitutionality of eliminating the office of supernumerary judge has never been established” […] Mackin is authoritative, and the motion judge was right to apply it in the present case. While the burden on Mr. Power may be a heavy one to prove that the enactment of the impugned transitional provisions was clearly wrong, in bad faith or an abuse of power, the fact remains that there is no absolute Crown immunity from suit seeking damages under s. 24(1) of the Charter. (Power, paras 18–19, emphasis added).
The Crown argued that the above statements in Mackin constituted obiter, but the NBCA rejected this, noting that damages were a live issue throughout the case (Power, para 27). The NBCA relied on Mackin, which not only made room for Crown liability for unconstitutional legislation, but went so far as to set out some guiding principles such as negligence and bad faith (Power, para 19).
The NBCA also briefly considered and rejected the Crown’s other argument that non-absolute immunity violates the principles of separation of powers and parliamentary sovereignty (Power, paras 20–24). The NBCA noted that had the SCC been concerned about judicial infringement upon the legislative process, it would have endorsed absolute liability (Power, para 22). It further posited that “the legislative branch and those within it are free to make policy choices and adopt laws, although they may have to pay a price if they do so in circumstances that are clearly wrong, or where bad faith or abuse of power is proven” (Power, para 23). Any concerns about legislative infringement are further curbed by the high threshold set out in Mackin (Power, para 24).
Last, the NBCA acknowledged but rejected the Crown’s argument that non-absolute liability violates the principle of parliamentary privilege (Power, para 25). The NBCA wrote that the Crown’s argument “is of no moment because the motion judge, like this Court, was duty-bound to apply the law as formulated in Mackin” (Power, para 25).
The NBCA’s decision is simple, as it boils down to the mere application of a binding precedent.
This case, however, is fundamentally important because it provides the SCC with a chance to affirm or overturn Mackin. The jurisprudence on this issue is rather clear-cut, and it is not that the SCC seeks to clarify the state of the jurisprudence. Rather, it is likely that the SCC will address the Crown’s arguments, given that they are novel and were not addressed in Mackin. In particular, it will be valuable to hear the SCC’s perspective on whether or not the separation of powers, parliamentary sovereignty, and parliamentary privilege can be respected while concurrently depriving the Crown of the benefit of absolute immunity. These concepts are fundamental to the Canadian legal order, so it will be interesting for the SCC to clarify their scope.
Further, if the SCC does affirm Mackin, it may very well set out a clearer and more robust test for when damages can be sought in response to unconstitutional legislation. As it stands, Mackin provides only loose guiding principles rather than a comprehensive framework. For example, the SCC failed to establish liability in Mackin because it couldn’t be established that the Crown knew its legislative actions to be unconstitutional. It is unclear whether this is an optional factor to consider or if it is a necessary requirement that the Crown have prior knowledge of its legislation’s unconstitutionality. If the latter is true, it is unclear how this is to be assessed. If anything, it seems an impossible standard to meet because constitutionality is assessed by and is the expertise of the courts, not the Crown. This is one feature of the separation of powers, which the Crown itself emphasized in Power.
While it is clear that the SCC did not leave room to interpret Mackin as granting the Crown absolute immunity from damages when legislation is deemed unconstitutional, Mackin left much to be desired with respect to a predictable and followable framework.
As noted by the NBCA, “although [the Crown’s] arguments were not expressly addressed in Mackin, it remains that the case says what it says and, until the Supreme Court overrules it or limits its application, we are duty-bound to apply it” (Power, para 20). It is ironic that the NBCA alluded to a hypothetical situation within which the SCC revisits Mackin, because it will soon do so in this very case.