Attorney General of Canada v. Joseph Power
(New Brunswick) (Civil) (By Leave)
Constitutional law - Charter of Rights, Remedy (s. 24), Damages - Constitutional law — Charter of Rights — Remedy (s. 24) — Damages — Respondent convicted of criminal offences prior to certain amendments to regime for obtaining pardons, but transitional provisions applied the amendments retrospectively — Respondent seeking pardon after employer learned of criminal record, but amendments rendered respondent permanently ineligible for a pardon — Respondent losing his employment — Respondent seeking damages after transitional provisions declared unconstitutional — Whether the Crown may be held liable in damages for government officials and Ministers preparing and drafting legislation that is later declared unconstitutional — Whether the Crown may be held liable in damages for Parliament enacting legislation that is later declared unconstitutional — Limiting Pardons for Serious Crimes Act, S.C. 2010, c. 5 — Safe Streets and Communities Act, S.C. 2012, c. 1 — Criminal Records Act, R.S.C. 1985, c. C-47.
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Respondent Joseph Power was convicted of two criminal offences in the 1990s. He served a term of imprisonment.
In 2010 Mr. Power made inquiries about the process to obtain a pardon, but did not apply for one.
In 2011, Mr. Power’s employer learned of his criminal record. He was suspended from work.
Mr. Power applied for a pardon — now called a record suspension — in 2013 in order to continue working in his chosen field. However, two enactments since 2010 — the Limiting Pardons for Serious Crimes Act and the Safe Streets and Communities Act — had amended the Criminal Records Act. Transitional provisions in both of the amending acts gave them retrospective application to offences that had occurred before their coming into force. The combined effect of these enactments and their transitional provisions was to render Mr. Power permanently ineligible for a record suspension.
Mr. Power lost his job and became ineligible for membership with provincial bodies governing his field of employment.
The transitional provisions of both the Limiting Pardons for Serious Crimes Act and the Safe Streets and Communities Act, which gave them retrospective application to offences committed prior to their enactment, were later declared unconstitutional.
Mr. Power brought an action against the Crown, alleging that the adoption and application of the transitional provisions constituted conduct that was clearly wrong, undertaken in bad faith, and abusive of government power. He sought damages pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms.
Prior to trial, the appellant Attorney General of Canada sought a determination of questions of law, concerning whether the Crown could ever be held liable in damages in respect of the enactment of legislation that is later declared unconstitutional.
The Court of Appeal of New Brunswick upheld the application judge’s determination of those questions, and dismissed the Attorney General’s appeal.
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