Christine Van Geyn and Josh Dehaas: Governments should pay for passing unconstitutional legislation

There should be real consequences for governments that enact laws that are abuses of power and done in bad faith.

By: Christine Van Geyn and Josh Dehaas

Picture this: It’s 2030. The latest annual COVID variant is shaping up to be a beast. The United States and Canada have shut their borders to non-essential travel, factories in China have started sending workers home to lock down, and the price of oil plummets. Oilsands companies start laying off staff, and the unemployment rate spikes in Alberta. The job situation is even worse in the rest of Canada and Albertans start to get annoyed that the few positions that open up often go to outsiders.

An upstart politician named Populist Pete unveils his “Albertans First” strategy and sweeps to power in the provincial election. Pete’s first act in power is to introduce a law that says no one who hasn’t been an Alberta resident for at least two years can take a new job in the province. When the opposition leader points out that this legislation is clearly contrary to section 6(2) of the Charter of Rights and Freedoms, which says that “every citizen of Canada … has the right: to move to and take up residence in any province; and to pursue the gaining of a livelihood in any province,” Populist Pete just scoffs.

“I really don’t care what Pierre Trudeau’s Charter says. If Quebec can control its immigration, so can we,” he says. “We’re going to put Albertans first regardless of what the Charter says.”

The law passes. Several weeks later courts overturn the obviously unconstitutional statute. But by then, many Canadians who had been living in Alberta were already forced to pack up and leave the province.

You might think this scenario sounds far-fetched, the Populist Pete hypothetical is a common scenario beyond Canada’s borders, where the condemnation, imprisonment and even execution of political enemies still occur. Here at home, Canada’s pre-Charter history is full of examples of Parliaments passing laws that were clearly wrong, drafted in bad faith, or that amounted to abuses of power. The federal government banned Indigenous Potlatch ceremonies for 66 years. They held Japanese-Canadians in internment camps during the Second World War. Quebec jailed Jehovah’s Witnesses for proselytizing in the early 20th Century. And let’s not forget that there are still occasions when the government may go too far — consider the recent (and ongoing) debates over the extent of the government’s powers during the pandemic and the convoy crisis last year.

There should be real consequences for governments that enact these types of laws that are abuses of power and done in bad faith. One of those consequences should be the right to sue for damages so that people who suffer from blatantly unconstitutional legislation are compensated, and governments are deterred from breaching the Charter again. Under existing law, damages are available when that high threshold is met. But now the Trudeau government, supported by the provinces, is arguing at the Supreme Court — after losing twice in the courts of New Brunswick — that they have absolute immunity against paying damages caused by the introduction or enactment of any unconstitutional laws. The case is Power v. Canada, and the argument put forward by the government should send a chill down the spine of every civil libertarian.

The government’s argument would be a seismic shift in the law. Section 24(1) of the Charter guarantees that anyone whose rights have been infringed may apply to a court for an “appropriate and just” remedy, which the Supreme Court has said can include money damages when needed to compensate the person, vindicate the right, or deter the government from trampling rights in the future. Courts have long accepted that section 24(1) should not be used in ways that chill legislators from passing laws out of fear they might accidentally find themselves on the hook for large sums of money in the future. But the 2002 case Mackin v. New Brunswick established that this immunity only extends so far. According to Mackin, governments still need to pay Charter damages where their conduct is “clearly wrong, in bad faith or an abuse of power.” This is an extraordinarily high threshold.

The government argues that Mackin only applies to the unconstitutional application of otherwise valid laws, and that they can never be forced to pay up when the constitutional violation arose during the law-making process itself.

They offer three unconvincing reasons. First, they say it would violate the unwritten constitutional principle of parliamentary sovereignty, which says that only Parliament gets to make laws. But Parliamentarians would be no less free to make laws; they would only be on the hook when their laws are enacted despite being clearly wrong, in bad faith or abuses of power. And Parliament already has an obligation to act within the confines of the constitution. Their second argument is that separation of powers between the executive, Parliament and courts is nullified by anything but absolute immunity because otherwise courts are inserted into the law-making process. But the court would not be in the room during the development, introduction or passage of laws; it would simply be reviewing laws after they’re passed and awarding damages where “appropriate and just.” A post-hoc review does not meddle in the legislative process. Their third argument is that anything but absolute immunity interferes with parliamentary privileges, but there is no reason to believe that after-the-fact review interferes with these privileges, properly understood.

The principles of parliamentary supremacy and division of powers are important parts of our constitution, but they can’t be used to immunize governments from paying up when claimants can show that their Charter rights were breached by the enactment of those rare and exceptional laws that were clearly wrong, in bad faith or abuses of power. This attempt to expand state power must be resisted.

While the threshold to sue for damages of an unconstitutional law must remain high, the hypothetical story of Populist Pete and our history show the risks of allowing absolute immunity.

Christine Van Geyn is litigation director with the Canadian Constitution Foundation (CCF). Josh Dehaas is counsel with the CCF. Visit the CCF’s website to sign a petition against absolute government immunity.

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