Canada's Supreme Court has rejected the Trudeau government's claim that it enjoys absolute immunity from being sued for damages caused by its unconstitutional laws.
CCF pleased by SCC ruling no absolute immunity from damages for Charter-violating laws | Canadian Constitution Foundation (news release):
July 19, 2024 - "The Canadian Constitution Foundation [CCF] is pleased that the Supreme Court of Canada has ruled that the state is not entitled to absolute immunity from damages when it enacts unconstitutional legislation that infringes Charter rights. In a 5-4 decision released Friday [July 19] in Attorney General of Canada v Joseph Power, Chief Justice Wagner and Justice Karakatsanis for a majority of the court decided that the state may be required to pay damages for passing legislation that meets the very high threshold of being clearly unconstitutional, passed in bad faith or that amounts to an abuse of power.
"The Trudeau government had argued that it had absolute immunity from paying damages for its enactments based on the constitutional principles of the separation of powers, parliamentary sovereignty and parliamentary privilege.
"The government claimed that damages for enactments of even clearly unconstitutional legislation would open the floodgates to claims and chill them from passing constitutional laws out of concern they would later be on the hook for payments.
"The applicant, Joseph Power, had argued that there was no absolute immunity, and that he should receive damages to compensate him for the harm cause by the enactment of laws that retroactively removed access to pardons, which were passed despite being in clear violation of the protections in section 11 of the Charter against being punished twice for the same crime.
"The CCF intervened in the case to argue that the government is not entitled to absolute immunity. Section 24(1) of the Charter states that damages are available where 'appropriate and just in the circumstances.' The CCF said damages must be available in some exceptional circumstances. The majority agreed.'By shielding the government from liability in even the most egregious circumstances, absolute immunity would subvert the principles that demand government accountability,' Chief Justice Wagner and Justice Karakatsanis wrote.
"The majority also agreed with the CCF on when damages should be available. The Court agreed that there ought not be damages available for merely negligent enactments, but they should be available where the legislation is unconstitutional on its face, where the state was reckless or wilfully blind as to a law’s unconstitutionality and where there was evidence of bad faith or an abuse of power including where the state acted dishonestly or with an improper purpose.
"CCF Executive Director Joanna Baron said she was pleased by the outcome. 'The CCF is relieved that the Supreme Court has recognized that important constitutional principles like parliamentary sovereignty and the separation of powers cannot justify an absolute immunity from damages where the government passes laws that are flagrantly or knowingly unconstitutional,' Baron said. 'Today’s decision gets it right by clarifying that although claimants who seek damages will have a high test to meet, they will still be able to hold governments to account where the Constitution requires damages to vindicate their rights and compensate them,' she added.
"CCF Litigation Director Christine Van Geyn said she believes the threat of having to pay damages will help to deter future governments from passing laws that they know violate the Constitution. 'From banning Indigenous potlatch ceremonies to interning innocent Japanese-Canadians during the Second World War, Canada’s pre-Charter history is sadly full of examples of Parliaments that passed laws that were clearly unconstitutional,' Van Geyn said. 'If the freezing of bank accounts during the freedom convoy is any indication, we still can’t trust Parliament to never enact unconstitutional laws,' she added. 'Today’s decision recognizes that.'
"The CCF was represented in this case by George Avraam, Jennifer Bernardo and Rono Khan of Baker McKenzie."
Trudeau's government wanted ABSOLUTE IMMUNITY from being sued for unconstitutional laws... THEY LOST | Canadian Constitution Foundation | July 30, 2024:
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