Supreme Court to look at issue of Crown liability when a law is struck down

OTTAWA — The Supreme Court of Canada will examine whether the Crown enjoys absolute immunity from a civil suit seeking damages over passage of a law that is found to be unconstitutional.

The top court has agreed to hear the federal attorney general's appeal in the case of a New Brunswick man who filed an action for damages over legislative measures that made him ineligible for a criminal pardon.

Joseph Power served a prison sentence after being convicted of criminal offences in the 1990s and he went on to become a medical radiation technologist.

Power was suspended when his employer became aware of his criminal record, prompting him to apply for a pardon in 2013.

However, legislative changes introduced by the federal Conservatives that applied retrospectively made him permanently ineligible for a pardon and he lost his job.

Power's action for damages alleged that the adoption and application of the provisions amounted to conduct that was clearly wrong, undertaken in bad faith and abusive of government power.

Elements of the legislation that allowed for retrospective application were later declared contrary to the Charter of Rights and Freedoms.

Before Power's action went to trial, the federal attorney general sought clarity on whether the Crown can be held liable for damages for enacting a bill into law that is subsequently found to be unconstitutional.

A judge ruled there could be liability in certain circumstances, a decision upheld by New Brunswick's Court of Appeal. The federal attorney general then took its case to the Supreme Court.

As usual, the top court gave no reasons Thursday for agreeing to hear the case.

This report by The Canadian Press was first published March 2, 2023.

The Canadian Press