The federal government will ask the Supreme Court on Thursday for complete protection from lawsuits over unconstitutional legislation.
The request for absolute immunity will be made in a case involving a New Brunswick man who lost his job in health care and was barred from similar jobs over the retroactive application of a law denying him a pardon for sexual assault – a provision subsequently found to violate the Charter of Rights and Freedoms.
The question raised by the case of Joseph Power is whether government can be sued for financial damages if it passes laws that are an abuse of power, blatantly wrong or created in bad faith – for instance, if a government was willfully blind to a law’s obvious violation of constitutional rights. Supreme Court rulings in 1996 and 2002 affirmed that governments could be sued in those circumstances. And two lower courts in Mr. Power’s case cited those rulings in saying he has the right to sue Ottawa.
But the federal government argues that the earlier rulings have been misunderstood and need clarification. People can sue for damages over how a law is carried out, or enforced, it says, but allowing lawsuits over the legislative process itself would “undermine representative democracy” and create “potentially unlimited” liability.
The case of Mr. Power, now 65, has sweeping implications for legislative bodies and the people they serve, in everything from the use of solitary confinement to drastic wartime measures such as mass internments. Several provinces will be in court as intervenors to back Ottawa’s position that governments need absolute immunity. (Intervenors are not directly involved but give their own perspectives, based on their experience.) So will the speakers of the House of Commons and the Senate, each arguing that the separation of powers between legislators and judges, and “parliamentary privilege,” mean that the courts have no role in scrutinizing the legislative process – a principle they say was established in 1689 in England.
On the other side, several First Nations groups will argue reconciliation depends partly on being able to hold governments to account for bad-faith conduct. Groups representing prison inmates will say that ending the possibility of damages for unconstitutional laws will rob vulnerable populations of protection from legislative misconduct. Civil liberties groups say a foundation of English law is that immunity does not apply to bad-faith exercises of government power.
In 1995, Mr. Power was sentenced to eight months in jail for two counts of sexual assault. After his release, he studied medical radiation technology in Quebec and found a job in a New Brunswick hospital. He was eligible for a pardon five years after he committed the offences, but did not apply. When, some years later, an anonymous caller informed his employer of his convictions, he was suspended and eventually placed on leave without pay. So in 2013 he applied for a pardon – only to find that the opportunity had been taken away by retroactive legislation.
Two laws passed by the Conservative government of Stephen Harper, one in 2010 and one in 2012, put a pardon (which became known as a record suspension) permanently beyond his reach. One law made most sex offenders ineligible, and the other made the ineligibility retroactive for those who did not have a pardon already.
The new laws “fundamentally altered the course of his life, depriving him of the opportunity to work in his chosen field and imposing significant financial, professional and psychological hardship,” says a written argument filed with the Supreme Court by Mr. Power’s lawyers, Lex Gill and Louis-Alexandre Hébert-Gosselin.
In 2017, in cases brought by other former offenders, courts in British Columbia and Ontario found the retroactive aspect of the pardons law unconstitutional, since the Charter says punishments cannot be increased on an individual after an offence. (Section 11(i) says that if a punishment changes between an offence and sentencing, the offender receives “the benefit of the lesser punishment.”)
In 2018, Mr. Power sued Ottawa, which continued treating the retroactive provision as lawful (outside of Ontario and B.C.) until 2020, when the Federal Court ruled the retroactive aspect unconstitutional.
Mr. Power has not spelled out why he views the provisions as having been passed in bad faith. Thursday’s hearing is about whether he has a right to sue, not whether he has established that the government was liable in his case.