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.
Mackin balanced these principles and has been good law in Canada for 22 years. Since then, we have not seen the floodgates open with a tsunami of litigation bankrupting the country. The court in Power affirmed the Mackin standard, which is good for accountability of the government and good for stability in the law.
The Court was also mindful of affirming, in even stronger language than in Mackin, that damages for an unconstitutional law will be rare. As the Canadian Constitution Foundation argued in its intervention in the case, the Supreme Court found that a claim of negligence on the part of government is insufficient. It is necessary to show bad faith on the basis of evidence “obtained in a way that does not violate parliamentary privilege, such as statements made outside the Parliamentary privilege,” according to the Court. This makes clear that in order for the court to consider damages, a lawmaker would need to be knowingly or recklessly breaching the Charter and this will be hard to prove, especially where bad faith is alleged.
One of Honickman’s main concerns is that “the courts will be asked to determine whether the legislature acted in bad faith—an inquest that is wholly alien to the Canadian tradition.” He argues this will require courts to interfere with Parliamentary privilege and upset the delicate balance between the executive, legislature, and courts. But Honickman himself acknowledges that claims of bad faith will be extremely difficult to prove, noting that “it remains an open question of how bad faith will be proven in a particular case.” It would only be proved in unusual circumstances, perhaps where ministers publicly state that a law purporting to do something with a constitutional purpose is actually being done with an unconstitutional purpose. Clear wrongness might be made out where there are court rulings clarifying a type of law would be unconstitutional but a legislature passes it anyway.
Power has brought to the forefront a core tension amongst members of the Canadian legal community who can be broadly classified as supportive of the rule of law, liberty, and judicial restraint and who are usually on the same side. Legal conservatives such as Honickman are fearful of the decision’s implications for Parliamentary supremacy and the separation of powers. Classical liberals such as ourselves are more concerned with granting governments absolute immunity. The case highlights a tension between two principles legislative accountability and legislative autonomy.
The Supreme Court of Canada is seen, Wednesday, August 10, 2022 in Ottawa. Adrian Wyld/The Canadian Press.
But legislative autonomy and legislative accountability are all co-equal principles.
Legislative autonomy is an important principle, holding that Parliament is sovereign, controls its own processes, that the judiciary and legislature are separate, and the courts interpret the laws or strike them down but may not overtake Parliament’s independence to make those laws. But judicially enforced accountability is also sometimes necessary. The principles of accountability and parliamentary autonomy are not hierarchical, with accountability entirely subordinated to allow Parliament unlimited scope to pass abusive laws in bad faith. Affirming that there are some exceptional and limited cases where individuals can sue for unconstitutional laws does not undermine the principle of legislative autonomy.
As the court held, “By shielding the government from liability in even the most egregious circumstances, absolute immunity would subvert the principles that demand government accountability.”
Now, Power can try to sue. As outside observers, it seems unlikely that his claim will rise to that high threshold the Court has set, but he now has a free hand to try. The principles in this case are important beyond Power’s individual circumstances. Cases where Parliament has acted in bad faith and violated fundamental rights are rare but not theoretical in Canadian history. Parliament has passed laws related to the banning of Indigenous potlach ceremonies, the forced sterilization of Indigenous women, and Parliament even tried to pass Bills of Attainder aimed at punishing specific individuals. In a constitutional order, government should not be entitled to absolute immunity from being sued for causing these harms.
As skeptics of judicial power, we share the desire to protect parliamentary autonomy and concern about Canada’s activist judiciary. On the other hand, we operate in the real world where we are not governed by noble philosopher kings entitled to absolute immunity. We are governed by flawed human beings, and human beings are driven to seek power and hold onto it at all costs. Fearing judicial power is understandable but we must not become blind to the risk of too much power in the hands of politicians.
Editor’s Note: In a previous version of this piece the authors mistakenly asserted that Canadian Parliament passed laws on the internment of Japanese Canadians during the Second World War. However, the ability to intern Japanese Canadians was actually enacted as a wartime measure under the War Measures Act, not standalone legislation. The Hub apologizes for this error and we have altered the piece to reflect this correction.
