The recent Supreme Court of Canada decision in R v Power is an important and principled win for skeptics of state power who desire accountability when the government hurts people by passing unconstitutional laws. In Power, the Trudeau government made the shocking claim that they enjoy absolute immunity from being sued for damages—money awards—by people who are hurt by unconstitutional laws. The court rejected this expansive claim, which had attempted to overturn a 22-year-old precedent from a case called Mackin. The court affirmed the principles of constitutionalism and the rule of law by holding that in some narrow circumstances, we can sue our government for enacting unconstitutional laws.

Those who have decried the decision as a radical expansion of judicial power, including Asher Honickman in The Hub, are being needlessly alarmist and evincing a blind spot for state overreach.

It is important here to distinguish between suing the government for unconstitutional acts by state agents and the executive and suing for Parliament’s passage of unconstitutional laws. A classic example of suing for an unconstitutional act by a state or executive actor is a lawsuit for police brutality. It is well established that we can sue for that and damages are necessary not only to compensate people but to deter bad government actors from violating rights. But what if you have damages flowing from the passage of the law itself?

That was the scenario Joseph Power found himself in. Power was convicted of criminal offences in the 1990s. He served his time and became an X-ray technician. He investigated getting a pardon but by the time he got around to it, the regime had changed and there was a new federal law that prohibited him from getting the pardon. It eventually came out to his employer that he had a criminal record and so he was let go from his job. That law that prevented him from getting the pardon was struck down as unconstitutional, but by then he’d already lost his job and his income. He wanted to sue the government for the damage that their unconstitutional law had caused. The question that went to the Supreme Court was simple: could he sue?

Contrary to Honickman’s assertion that Power “overrules decades of the court’s own jurisprudence,” this is not a novel question. Mackin held that one can sue for an unconstitutional law if a specified threshold is met: if the law was enacted in bad faith, an abuse of power, or clearly unconstitutional. The threshold to sue for an unconstitutional law in Mackin is extremely high. It should be; governments cannot govern effectively if there is a permanent spectre of financial liability hovering over every policy decision.

On the other hand, governments should not be immunized from flouting our constitutional rights in bad faith.

In each EconMinute, Business Council of Alberta economist Alicia Planincic seeks to better understand the economic issues that matter to Canadians: from business competitiveness to housing affordability to living standards and our country’s lack of productivity growth. She strives to answer burning questions, tackle misconceptions, and uncover what’s really going on in the Canadian economy.

Two years ago, a lack of workers was a top economic concern and a hot topic of conversation. While some viewed labour shortages as a temporary challenge of an over-heated economy, others said it was more structural. Canada was experiencing a “grey wave” of retirement and sectors with an older workforce would be hit especially hard.

As of the latest data, the job vacancy rate has returned to its pre-COVID level (about 3 percent)—down significantly from its 5.7 percent peak in the spring of 2022. Other information from business surveys and online job postings tells a similar story. It’s easier to find workers and harder to find work.

Open postings aren’t just disappearing in a few big industries either. They’re down across nearly every sector of the economy. Twelve of the 16 industries analyzed now have a job vacancy rate in line with or below their pre-COVID average.

The difference between industries has also shrunk. Those that faced the most difficulty hiring a couple years ago (think back to where you saw all those “help wanted” signs) have seen the biggest decline in vacant postings.

For instance, hospitality—the industry that at one point held the highest job vacancy rate ever recorded—now looks like any other industry. Likewise, vacancies in construction, an industry whose concerns of a shrinking workforce pre-date COVID, have fallen back down to a vacancy rate of 3.6 percent, just a hair above its previous norm.

Only one industry is having a noticeably harder time finding workers, and that is health care. Though the struggle to find staff isn’t as bad as it was two years ago, it’s still a challenge. The job vacancy rate is nearly 50 percent higher than previous norms and is the highest of any industry.

Overall, the collapse in the job vacancy rate does not disprove the theory that labour shortages are a new norm. A weak economy could be masking an underlying issue. After all, the one industry bucking the trend is primarily comprised of public sector jobs that are least affected by the health of the economy. Also worth noting, certain roles within industries may remain harder to fill.

Nonetheless, it’s a good reminder of how much, and how quickly, labour markets can change—from not enough workers to too many. And is also a cautionary tale for policy solutions that seek to intervene.

This post was originally published by the Business Council of Alberta at businesscouncilab.com.