No absolute immunity for unconstitutional laws

The Supreme Court of Canada has ruled that the state is liable when Parliament enacts legislation that is later found to be unconstitutional.

“The state is not entitled to an absolute immunity from liability for damages when it enacts unconstitutional legislation that infringes on Charter rights,” Chief Justice Richard Wagner and Justice Andromache Karakatsanis jointly wrote for the majority in the split 5-2-2 decision.

"The government and its representatives are required to exercise their powers in good faith and to respect the 'established and indisputable' laws that define the constitutional rights of individuals.”

They continued: “The defence of immunity will be available to the state unless it is established that the law was clearly unconstitutional, or that its enactment was in bad faith or an abuse of power. This is a high threshold. But it is not insurmountable.”

The decision upholds the Court’s 2002 ruling in Mackin, which found the state could be liable for damages in accordance with Section 24(1) of the Charter. The decision in Power clarifies that ruling’s test from a standard of “clear wrongness” to “clear unconstitutionality.”

In the case at hand, Joseph Power served a sentence in prison but did not apply for a pardon when he was first eligible to do so. When he later sought the pardon or “record suspension,” as it became known, he was no longer eligible thanks to legislation enacted by the Conservative government. He lost his job as a result. When that legislation was later found to be unconstitutional, Power sought damages from the federal government. With this ruling that the government does not enjoy absolute immunity, Power can now proceed with his lawsuit.

The majority was not persuaded by the federal government’s position that the mere suggestion of damages would have a chilling effect on government, or that good governance concerns require an absolute bar to Charter damages.

“Indeed, damages may promote good governance by encouraging constitutional compliance and deterring Charter breaches,” Wagner and Karakatsanis wrote.

Josh Dehaas, counsel for the Canadian Constitution Foundation, which intervened in the case, was pleased with the result as it was in line with what the CCF had argued.

“The Court did a good job of balancing the various parts of the constitution here,” he says.

“Parliamentary sovereignty, parliamentary privilege, separation of powers—these are all important parts of our Constitution, and we agree with that, but we also need to look at the text of the Charter itself. Section 24 says that judges can award damages where it’s just and appropriate in the circumstances… If [government] does something that recklessly disregards the Constitution, there need to be damages to compensate people, but also to deter them from doing that again.”

In the more than 20 years since the Mackin decision, Dehaas says there hasn't been a floodgate of damages for things that the government should have been on the hook for or huge damages awards that lead governments to be overly cautious about whether their laws violate rights.

“We are comfortable with this high threshold."

Megan Stephens of Megan Stephens Law in Toronto represented the David Asper Centre for Constitutional Rights as intervenors in the case. She was also pleased with the outcome.

“It’s making sure that we don’t just have Charter rights in this country, we have Charter remedies,” she says.

“(The justices) also do a great job of unpacking what are the unwritten constitutional principles that are play here. They recognize the concerns about parliamentary sovereignty and privilege, but also that there needs to be a balance.”

Stephens notes that the majority decision feels consistent with the approach to constitutional remedies in general, and that it is an easier test to apply. She says the existing test from Mackin and the test in Ward for damages from Charter breaches, will deal with most of the parliamentary privilege issues.

“Ultimately, these kinds of cases are still very challenging for individual litigants to bring because of those privilege concerns, so there will be evidentiary barriers, as the majority points out—you can’t summon parliamentarians to testify what they were thinking when they passed this legislation,” Stephens says.

Dehaas says that people with concerns about government liability need to remember that the Mackin threshold is exacting, and points to the majority’s warning that the inability to provide particulars will be “fatal to their claim at the pleadings stage.”

“It’s going to be very rare cases when you can actually show that, especially with regard to bad faith or abuse of power because you can’t compel MPs to testify,” he says.

“It would need to be something like the prime minister going out and saying ‘I know this is unconstitutional, but I’m going ahead with it anyway’.”

Peter Spiro, counsel to Monkhouse Law in the area of class actions, says that it was virtually inconceivable that the Court could rule in any other way than they did in this case, noting the number of submissions from provincial attorneys general that called for the Mackin standard to be clarified.

“It’s not going to be common and most people are not going to suffer substantial monetary damage from unconstitutional legislation,” Spiro says.

“Joseph Power is one of the rare examples where you can point to somebody who suffered personally significant damages. He suffered maybe tens of thousands of dollars of losses—it’s obviously a drop in the bucket for a federal government, but the principle is a sound one.”

Spiro says he was contemplating a class action lawsuit on behalf of a client affected by a different piece of legislation that had also been declared unconstitutional, but decided not to proceed because it would have been too difficult to prove the Mackin standards and the amounts of money were fairly trivial.

The Power case also separated the questions as to whether the immunity applied to just the Crown enacting the law as passed, or also to preparing and drafting a bill enacted by Parliament. The majority ruled that immunity was limited in both cases to avoid the risk of extending the privilege to public servants as part of the executive with far-reaching consequences.

The partial dissent, written by Justice Mahmud Jamal, separated the questions and found that the Crown could not be held liable for the preparation and drafting of the legislation, but could for its enactment. The full dissent, written by Justice Malcolm Rowe, argued that immunity should be absolute because of parliamentary privilege.

Philippe Lagassé, the Barton Chair at Carleton University’s Norman Patterson School of International Affairs, is critical of the way the majority goes against the distinctions between the Crown’s various capacities in Mikisew Cree.

“They’re saying that you can find the executive—the Attorney General—liable for something that the legislative power does, which is exactly what they didn’t do in Mikisew,” Lagassé says.

“In Mikisew, the duty to consult binds the Crown, but that doesn’t transfer over to the legislature. They’re fudging it—in this case, they’re saying the reverse of Mikisew. The legislature is doing something, but because we can’t enforce a remedy against the legislature, we’re going to enforce it on the executive. It doesn’t matter because the executive and the legislature are part of the same state, so we don’t need to worry about the capacities of the Crown. We don’t have to worry about the fact that we’re holding the executive accountable for the legislature’s actions.”

He adds: “It’s violence against the 1867 Constitution.”