TORONTO: The Canadian Constitution Foundation (CCF) has been granted intervenor status in a Supreme Court of Canada appeal about Crown immunity. The case is Attorney General of Canada v Joseph Power.
The issue in Power is a narrow one: whether the Crown enjoys absolute immunity from a civil suit seeking Charter damages for the enactment of legislation declared unconstitutional. The government says it does have absolute immunity, and Power, who claims to have suffered damages flowing from unconstitutional legislation, says otherwise. The lower court applied a rule from an older Supreme Court of Canada case called Mackin v New Brunswick to conclude that Crown immunity is not absolute. The AG is appealing that lower court decision. The Canadian Constitution Foundation has been granted leave to intervene in that appeal. The CCF is not taking a position on the merits of the case, but rather, focusing on the issue of whether or not the Crown is entitled to absolute immunity.
“The government is not entitled to absolute immunity from damages if they enact unconstitutional legislation that is clearly wrong, in bad faith or an abuse of power. Suing the government for damages is one of the ways our system makes government accountable, and the government cannot be permitted to immunize itself the way they are attempting to in this case,” said CCF Litigation Director Christine Van Geyn.
“When a government enacts unconstitutional laws, there must be consequences for that. One of those consequences must be the ability to sue for damages when the threshold set out in Mackin is met. If the Supreme Court accepts the argument from the Attorney General that the Crown has absolute immunity for damages for unconstitutional laws, people will be unable to seek compensation when governments act in bad faith,” continued Van Geyn. “We will argue that the current threshold from Mackin is the correct one. To deny Charter damages to people who have suffered from bad faith government action would be intolerable. While the threshold is high, the state does not deserve absolute immunity.”
The CCF is represented in this case by George Avraam, Jennifer Bernardo and Rono Khan of Baker McKenzie. The hearing at the Supreme Court of Canada is scheduled for December 2023.
Members of the public interested in supporting the costs associated with this case can make a tax-deductible charitable donation at theCCF.ca/donate/
