Supreme Court confirms state is liable when Parliament enacts unconstitutional laws

The Supreme Court of Canada has confirmed the federal government does not have absolute immunity from liability when Parliament enacts laws that are later overturned as unconstitutional.

The decision upholds a 2002 ruling — Mackin v. New Brunswick (Minister of Finance) — that says the state does have limited liability when it enacts unconstitutional laws, but only when those laws are “clearly wrong, in bad faith or an abuse of power.”

The hearing was unusual because all ten provinces intervened in the case.

The split decision saw Supreme Court Chief Justice Richard Wagner and six other justices conclude the limited liability stands, while Justice Malcolm Rowe and Justice Suzanne Côté disagreed.

The ruling says the decision is meant to strike a balance between “the protection of constitutional rights and the need for effective government.”

“The government and its representatives are required to exercise their powers in good faith and to respect the ‘established and indisputable’ laws that define the constitutional rights of individuals,” the ruling says.  

“However, if they act in good faith and without abusing their power under prevailing law and only subsequently are their acts found to be unconstitutional, they will not be liable.”

The ruling stems from the case of Joseph Power, who was convicted on two counts of sexual assault and sentenced to eight months in prison.

After being released in 1996, Power trained as an X-ray technician. He worked first in Quebec and then later in New Brunswick, where he was employed as a medical radiation technologist at the Miramichi Regional Hospital.

In 2011, the hospital suspended Power from his post and later told him that he would need a pardon to continue working in his chosen field.

When he tried to apply for a pardon, Power learned that the Limiting Pardons for Serious Crimes Act and the Safe Streets and Communities Act made him permanently ineligible.

When that law was later found to be unconstitutional, Power filed a notice seeking damages from the federal government in court.

In response, the Attorney General of Canada challenged the 2002 Mackin ruling. The Court of Queen’s Bench of New Brunswick ruled against the government.

On Friday, the Supreme Court of Canada upheld that ruling, freeing Power to pursue damages.