Case information

Civil procedure — Class actions — Conditions for authorization — Arguable case — Transitional provisions relating to amendments to Criminal Records Act — Territorial reach of declarations of constitutional invalidity made by provincial and territorial superior courts regarding those transitional provisions — Qualified immunity of Crown for acts carried out pursuant to law before law was declared unconstitutional — Whether Crown can be found liable for damages as appropriate and just remedy under s. 24(1) of Canadian Charter when it violates fundamental rights of litigant by subjecting litigant to law that it has expressly acknowledged is unconstitutional — Code of Civil Procedure, CQLR, c. C 25.01, art. 575.

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(PUBLICATION BAN IN CASE)

The applicant, Groupe Alter Justice, is a non-profit organization whose mission is to represent people in the criminal justice system in Quebec. In 2021, it filed an application for authorization to institute a class action against the respondent, the Attorney General of Canada (AGC), for the benefit of Quebec residents who were allegedly deprived of the opportunity to apply for a suspension of their criminal record further to the enactment of amendments to the Criminal Records Act, R.S.C. 1985, c. C 47 (CRA). The main allegation against the AGC is that he allowed the violation of the class members’ rights to continue even though he had given up defending the constitutionality of the transitional provisions in the wake of two proceedings where the Supreme Court of British Columbia and the Ontario Superior Court of Justice had declared those provisions unconstitutional. The amendments to the CRA resulted from the enactment of two laws: the Limiting Pardons for Serious Crimes Act, S.C. 2010, c. 5 (LPSCA), and the Safe Streets and Communities Act, S.C. 2012, c. 1 (SSCA). The transitional provisions of these two laws gave the amendments to the CRA a retrospective reach: the amendments applied to any application for suspension made after their coming into force regardless of the date of the offence, of the conviction or of the sentencing. Reprieve was granted for applications that were pending at the time of the coming into force of the amendments to the CRA. Since the AGC did not appeal the decisions of the Supreme Court of British Columbia and the Ontario Superior Court of Justice, the transitional provisions continued to apply to applications from other provinces, including the province of Quebec. In April 2018, an application for a declaratory judgment contesting the validity of the transitional provisions was filed with the Quebec Superior Court. The application relied on the decision rendered by the Supreme Court of British Columbia. The proceeding was postponed sine die. Since the AGC decided not to contest the application for a declaratory judgment, the parties agreed to take the case to the Federal Court to have the transitional provisions declared of no force or effect throughout Canada. In March 2020, the Federal Court declared the transitional provisions unconstitutional (see P.H. v. Canada (Attorney General), 2020 FC 393). The Superior Court dismissed the application for authorization to institute a class action and the Court of Appeal dismissed the appeal.