Summary

Keywords

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.

Summary

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Respondent Joseph Power was convicted of two criminal offences in the 1990s. He served a term of imprisonment. After his release Mr. Power enrolled in college to become an X-ray technician. He then worked in Quebec before relocating to New Brunswick, where he worked in a hospital as a medical radiation technologist.

In 2010 Mr. Power made inquiries about the process to obtain a pardon, but did not apply for a pardon at that time.

In 2011 Mr. Power’s employer learned of his criminal record by way of an anonymous phone call. He was told he posed a risk because of his criminal record and was suspended from work, first with pay and later without.

Mr. Power applied for a pardon in 2013 in order to continue working as a medical radiation technologist. However, two enactments since 2010 — the Limiting Pardons for Serious Crimes Act, S.C. 2010, c. 5 and the Safe Streets and Communities Act, S.C. 2012, c. 1 — had amended the pardon scheme (now called a record suspension) set out in the Criminal Records Act, R.S.C. 1985, c. C-47. 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.

As a result, Mr. Power lost his job and became ineligible for membership with the medical radiation technologist governing bodies of New Brunswick and Quebec.

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, have since been declared unconstitutional.

Mr. Power brought an action for damages pursuant to s. 24(1) of the Charter. Prior to trial, the applicant Attorney General of Canada sought a determination of two questions of law:

1. Can the Crown, in its executive capacity, be held liable in damages for government officials and Ministers preparing and drafting a proposed Bill that was later enacted by Parliament, and subsequently declared invalid by a court pursuant to s. 52(1) of the Constitution Act, 1982? and

2. Can the Crown, in its executive capacity, be held liable in damages for Parliament enacting a Bill into law, which legislation was later declared invalid by a court pursuant to s. 52(1) of the Constitution Act, 1982?

The application judge answered “yes” to both questions. The Court of Appeal of New Brunswick dismissed the Attorney General’s appeal.