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Canada v Power

Joseph Power was convicted of two criminal offences in the 1990s, and completed his sentences for both. In 2010 and 2012, the federal government passed two pieces of legislation that had the combined effect of making Mr. Power permanently ineligible for a record suspension (previously referred to as a pardon). This was in part because the legislation applied retroactively. In 2013, Mr. Power applied for a record suspension and was denied. As a result, his employment was terminated. 

Eventually the retroactive nature of the legislation was found to be unconstitutional. After that, Mr. Power sued the federal government for monetary damages under section 24(2) of the Charter, claiming that Canada passed these laws knowing that they were unconstitutional. Canada asked the court to throw out this lawsuit, arguing that monetary damages were not available based on legislative acts. This argument was rejected at the lower court and then again at the court of appeal. The court of appeal held that monetary damages could be available where laws are passed in bad faith or as an abuse of process. Canada has appealed this decision to the Supreme Court of Canada, arguing that legislators should have absolute immunity in the legislative process.

The BCCLA intervened in this case because we believe that Canadians who are harmed by unconstitutional laws deserve to be compensated. Our argument to the court is that the principle that there is no immunity for exercises of public authority in bad faith or as an abuse of power is well established in the common law and should apply in this case. Governments need to be held to account in all of their actions including when they wield their legislative powers.

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