No government should be able to grant itself immunity for intentional wrongdoing. Government accountability and respect for the rule of law are essential to a functioning democracy. When a government attempts to evade these fundamental principles by legislating itself a get-out-of-jail-free card, the democratic foundations of a society are in danger.
The Ontario Place Protectors v. Ontario case, which will be heard by the Supreme Court of Canada this fall, deals with this exact issue. In 2023, the Ontario government passed legislation called the Rebuilding Ontario Place Act. Section 17 of that Act is a blanket immunity clause insulating the Ontario government from any liability related to the Ontario Place redevelopment project, including liability for bad faith and intentional wrongdoing.
The CCLA is intervening in this case to argue that absolute immunity provisions are unconstitutional because they encroach on the superior courts’ core jurisdiction to supervise the exercise of public power and hold the government accountable. These provisions also fundamentally contravene the rule of law – the constitutional principle that no one is above the law, including the government.
While certain limited immunities are well-established at common law and rooted in constitutional principles, there is simply no constitutional justification for a blanket government immunity from deliberate, willful misconduct. At a minimum, the CCLA is urging the Supreme Court of Canada to safeguard the superior courts’ constitutional jurisdiction to hold government to account when its officials intentionally abuse public power in a way that injures members of the public.
You can read our factum here.
We are deeply grateful to Jonathan Lisus and John Carlo Mastrangelo from Lax O’Sullivan Lisus Gottlieb LLP for their excellent pro bono representation.
