THE BC Civil Liberties Association (BCCLA) said on Friday it is heartened by the Supreme Court of Canada’s decision in Attorney General of Canada v Power, a case where Canada asked for an absolute immunity against having to pay damages for passing unconstitutional laws.

The majority of the Court held that absolute immunity would be inconsistent with the need to hold government accountable for violating Charter rights.

In 2010 and 2012, the federal government passed two pieces of legislation that had the combined effect of making Joseph Power permanently ineligible for a criminal record suspension. Years later these laws were found to be unconstitutional, following which Power sued the government. Canada applied to have the lawsuit struck, arguing that Parliament has absolute immunity when passing laws – even if they act in bad faith or as an abuse of process.

The BCCLA welcomed the court’s ruling that Charter damages can be available when governments pass laws that are clearly unconstitutional, in bad faith or an abuse of power.

Vibert Jack, Litigation Director for the BCCLA, said: “The idea that state actors can ever have absolute immunity is completely incompatible with the rule of law. Canadians who are harmed by unconstitutional laws deserve to be compensated, and legislatures that abuse their power need to be held to account.”

The BCCLA is represented by Emily MacKinnon, Brodie Noga and Emily Wang of Osler, Hoskin & Harcourt.