• Source: Canada (Attorney General) v. Power

      • Canada (Attorney General) v. Power, 2024 SCC 26 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 is later found to be unconstitutional by a court. The decision has been widely criticized as undermining Canada's constitutional order and system of Westminster parliamentary democracy.


      Background


      Joseph Power was convicted of two offences of sexual assault and sentenced to prison. After being dismissed from his job at a New Brunswick hospital when his criminal record came to light, he applied for a pardon (now known as a record suspension). His application was refused under the Limiting Pardons for Serious Crimes Act and the Safe Streets and Communities Act because of the nature of his crimes. The Act's transitional provisions were later struck down by the courts.
      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 Supreme Court's decision has been extensively criticized. 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

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