is a 2024 decision of the Supreme Court of Canada on the Crown's immunity for an action arising out of a legislature's enactment of legislation that violates the Canadian Charter of Rights and Freedoms.

Background Joseph Power was convicted in 1996 of two offences of sexual assault and sentenced to prison. After being dismissed in 2011 from his job at a New Brunswick hospital when his criminal record came to light, he applied in 2013 for a pardon (now known as a record suspension). His application was refused under the Limiting Pardons for Serious Crimes Act, which Parliament passed in 2010, and the Safe Streets and Communities Act, which Parliament passed in 2012, because of the nature of his crimes. The Act's transitional provisions were later struck down by the courts for violating Sections 11(h) and (i) of the Canadian Charter of Rights and Freedoms, which prohibit a second punishment for the same crime after a punishment for that crime is complete, and prohibit a harsher punishment than was authorized at the time of the offence.

Power sued for damages under section 24(1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, being Schedule B to the Canada Act 1982.

Decision In a 5-2-2 decision, the Supreme Court of Canada held that the executive government could be held liable for Charter damages for preparing legislation that is later struck down by the courts, as well as for Parliament enacting legislation which is later struck down by the courts.

Kasirer and Jamal JJ would have held that the Crown enjoys absolute immunity for ministers and officials preparing and drafting a bill which is later found to be unconstitutional, but that damages are available for the legislature enacting such legislation.

Côté and Rowe JJ would have held that damages are available in neither situation.

Commentary The attorneys for the plaintiff, Joseph Power, declared, "This decision is a landmark ruling in constitutional law and involved more than 20 interveners on appeal."https://tjl.quebec/en/judgment/attorney-general-of-canada-v-joseph-power-supreme-court-victory/

The Canadian Constitution Foundation declared that it was "pleased" by the decision. The Foundation had intervened in the case in opposition to a finding of absolute parliamentary immunity.https://theccf.ca/ccf-pleased-by-scc-ruling-no-absolute-immunity-from-damages-for-charter-violating-laws/ The David Asper Center for Constitutional Rights at the University of Toronto, which also intervened in opposition to absolute parliamentary immunity, declared, "Significantly, the Supreme Court’s view achieves a balance between important legislative privileges which weigh in favour of absolute immunity, and the Charter rights of all Canadians that favour no immunity."https://aspercentre.ca/the-state-is-not-immune-the-supreme-court-affirms-that-crown-can-be-held-liable-in-damages-for-unconstitutional-laws/

Thecourt.ca, the law review of Osgoode Hall Law School, called the decision "a sort of goldilocks solution – some immunity but not too much." Thecourt.ca still decries both the majority decision and the two dissenting opinions for their lack of clarity, though the article still asserts that all three opinions struck a different balance in how to reconcile the opposing constitutional principles of parliamentary sovereignty and the rule of law.https://www.yorku.ca/osgoode/thecourt/2024/11/07/the-clashing-of-constitutional-principles-canada-attorney-general-v-power/

University of Ottawa law professor Stéphane Sérafin called the judgment "shocking", writing that the Supreme Court "effectively granted itself ultimate authority over the legislative process in this country". Philippe Lagassé, an expert on the Crown and the Westminster system at Carleton University, wrote that the majority judgment in Power was "all rather disconcerting" and "went against rulings as recent as 2018 in Mikisew, went against the principle that one part of the Constitution shouldn’t invalidate another, and dissolved the essential distinction made between the Crown’s capacities and those of legislative and executive offices".

Legal scholar Kerry Sun described the Court's judgment as exhibiting "a striking misapprehension of Canada’s constitutional architecture" and commented that the decision was "perhaps one of the Supreme Court’s most expensive mistakes in recent history".

Legal commentator and lawyer Asher Honickman wrote the decision "subverts" the core constitutional principles of parliamentary privilege and parliamentary sovereignty.

References