Supreme Court hears fired NBer’s case, questions gov’t immunity

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OTTAWA • Several of the country’s Supreme Court justices have appeared to pour cold water on a call to give governments absolute immunity from being sued for damages from legislation it passes but is later found to be unconstitutional.

The Supreme Court of Canada heard last week a case stemming from a New Brunswicker who lost his job at the Miramichi hospital after his health authority employer found out he had a criminal record.

Joseph Power attempted to receive a pardon after he was dismissed from his job as a medical radiation technologist at the Miramichi Regional Hospital in 2011.

He was deemed permanently ineligible due to a federal law.

But that law has since been found to violate the Canadian Charter of Rights and Freedoms.

Power then sued for damages.

But prior to trial, the federal attorney general sought clarity on whether the Crown can be held liable.

The ask has made it all the way to the Supreme Court.

Why shouldn’t there be a remedy in damages for that?

Justice Mahmud Jamal

In doing so, the Attorney General of Canada has submitted that absolute immunity of governments is necessary, arguing that interfering with Parliament’s law-making process would bring the courts into the legislative sphere “where the courts have no role.”

That said, the argument was met with a flurry of questions and concerns when it was heard last Thursday.

“It seems perfectly fair game to say…if legislation is unconstitutional and harms Canadians, then perhaps there should be a remedy for that,” said Justice Mahmud Jamal. “In the case of torture, for example, legislation that imposes manditory torture or sterilization, for example, why shouldn’t there be a remedy in damages for that?”

He later added: “I recognize that it’s an extreme example, but we have to have an extreme example to test the principle.

“Why shouldn’t somebody be compensated?”

Attorney General of Canada lawyer Sharlene Telles-Langdon argued against the consideration of an extreme example, suggesting it an “unlikely” scenario dealing only with a rogue legislature.

She added that things like court injunctions are immediately available to stop legislation to test its validity.

“Surely, the fact that there may be other remedies is not an answer as to why there should be absolute immunity to Parliament,” Justice Andromache Karakatsanis said, later questioning why that level of immunity would be appropriate in a constitutional democracy “in an era where we believe there needs to be accountability and transparency.”

Justice Sheilah Martin said case law exists setting out that damages are possible as a result of unconstitutional legislation but on a “high standard” of bad faith or abuse of process by legislators.

Good governance considerations also must be taken into account, acknowledging that laws that benefit the greater good may not be helpful to others.

“I don’t understand the premise on which you are coming forward,” Martin said.

Telles-Langdon said Power had remedies long before coming forward with his legal action.

“He could have sought judicial review,” she said.

The top court has reserved its decision.

The attorney generals of every province have intervened in the case.

“The evolving nature of Charter rights prevents absolute guarantees of legislative Charter compliance,” reads the factum submitted to the court by New Brunswick.

The province’s attorney general’s office also argues for the “separation of powers,” arguing courts must refrain from any judicial oversight of the development or debate of laws.

“Courts come into the picture when legislation is enacted, and not before,” it states.

It adds that parliamentary privilege sees legislatures free “to make or unmake any law” with no external limits, adding certain immunities “are essential for open and uninhibited debate, effective law making, and holding government to account.”

Meanwhile, New Brunswick submits that imposing damages following a declaration of constitutional invalidity would effectively “impair government’s ability to effectively govern.”

“A primary role of the executive and legislative branches of government is to propose creative and unique legislative and policy solutions to pressing social issues and problems,” reads the factum. “Imposing a threat of damages for legislation that is subsequently declared to be unconstitutional would have an undesirable chilling effect on legislators and would hamper their ability to discharge this responsibility.”

The backstory to the now Supreme Court case spans decades.

Power served time in prison after being convicted of criminal offences in the 1990s.

The public decision from the appeal court specifies that, over two and a half decades ago, Power was convicted of two offences of sexual assault and was sentenced to two eight-month terms of imprisonment to be served concurrently.

The Attorney General of Canada notes in its submission to the court that Power has a history of convictions prior to that, including assault, obstructing a peace officer, and driving with a blood alcohol level above the legal limit on two separate occasions.

He was released from prison after serving his sexual assault convictions in 1996.

After being released, he went to college to become an X-ray technician.

He was first hired in Quebec before relocating in 2001 to New Brunswick, where he became employed at the Miramichi Regional Hospital as a medical radiation technologist.

It wasn’t until 2011 that Power’s employer “discussed with him an anonymous phone call to the hospital alleging he had a criminal record,” according to court documents.

“Until then, neither the hospital nor the organizations that govern the conduct of X-ray technicians had asked whether he had a criminal past,” it states. “In August 2011, the Miramichi Regional Hospital informed Mr. Power he posed a risk because of his criminal record.”

He was suspended from work, “first with pay and later without,” according to a Supreme Court summary.

He then attempted to get a pardon, erasing his past record.

However, legislative changes introduced by the federal Conservatives that applied retroactively made him permanently ineligible for a pardon.

He then lost his job.

Provisions of both the Limiting Pardons for Serious Crimes Act and the Safe Streets and Communities Act, enacted by the Harper Conservatives, have since been declared unconstitutional.

The Charter provides that “any person who is the victim of a violation or denial of the rights or freedoms guaranteed to him may apply to a competent court to obtain the remedy that the court considers appropriate and just in the circumstances.”