Canada (Attorney General) v. Power

Canada (Attorney General) v. Power
Supreme Court of Canada
Hearing: December 7, 2023 Judgment: July 19, 2024
Full case name	Attorney General of Canada v. Joseph Power
Citations	2024 SCC 26
Docket No.	40241
Holding
The Crown, in its executive capacity, can be held liable in damages for Parliament enacting a bill into law, which is later deemed to be unconstitutional by a court, as well as for government officials and ministers acting in a legislative capacity in preparing and drafting the bill.
Court membership
Chief Justice	Richard Wagner
Puisne Justices	Andromache Karakatsanis, Suzanne Côté, Malcolm Rowe, Sheilah Martin, Nicholas Kasirer, Mahmud Jamal, Michelle O'Bonsawin, Mary Moreau
Reasons given
Majority	Wagner CJ and Karakatsanis J, joined by Martin, O'Bonsawin, and Moreau JJ
Concur/dissent	Jamal J, joined by Kasirer J
Dissent	Rowe J, joined by Côté J

Canada (Attorney General) v. Power, 2024 SCC 26 is a 2024 decision of the Supreme Court of Canada on the Crown's immunity for an action arising out of a legislature's enactment of legislation that is later found to be unconstitutional by a court. The decision has been widely criticized as undermining Canada's constitutional order and system of Westminster parliamentary democracy.

Background

Joseph Power was convicted of two offences of sexual assault and sentenced to prison. After being dismissed from his job at a New Brunswick hospital when his criminal record came to light, he applied for a pardon (now known as a record suspension). His application was refused under the Limiting Pardons for Serious Crimes Act and the Safe Streets and Communities Act because of the nature of his crimes. The Act's transitional provisions were later struck down by the courts.

Power sued for damages under section 24(1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, being Schedule B to the Canada Act 1982.

Decision

In a 5-2-2 decision, the Supreme Court of Canada held that the executive government could be held liable for Charter damages for preparing legislation that is later struck down by the courts, as well as for Parliament enacting legislation which is later struck down by the courts.

Kasirer and Jamal JJ would have held that the Crown enjoys absolute immunity for ministers and officials preparing and drafting a bill which is later found to be unconstitutional, but that damages are available for the legislature enacting such legislation.

Côté and Rowe JJ would have held that damages are available in neither situation.

Commentary

The Supreme Court's decision has been extensively criticized. University of Ottawa law professor Stéphane Sérafin called the judgment "shocking", writing that the Supreme Court "effectively granted itself ultimate authority over the legislative process in this country". Philippe Lagassé, an expert on the Crown and the Westminster system at Carleton University, wrote that the majority judgment in Power was "all rather disconcerting" and "went against rulings as recent as 2018 in Mikisew, went against the principle that one part of the Constitution shouldn’t invalidate another, and dissolved the essential distinction made between the Crown’s capacities and those of legislative and executive offices".

Legal scholar Kerry Sun described the Court's judgment as exhibiting "a striking misapprehension of Canada’s constitutional architecture" and commented that the decision was "perhaps one of the Supreme Court’s most expensive mistakes in recent history".

Legal commentator and lawyer Asher Honickman wrote the decision "subverts" the core constitutional principles of parliamentary privilege and parliamentary sovereignty.