State Accountability for Unconstitutional Legislation: CCLA intervening before Supreme Court in AGC v. Power

TORONTO — The Canadian Civil Liberties Association is appearing as an intervenor before the Supreme Court of Canada in Attorney General of Canada v. Power. This case is about when the state can be sued under the Canadian Charter of Rights and Freedoms for passing unconstitutional legislation.

“For the Charter to have meaning, there must be consequences for violating it. We are intervening in this case to protect all people in Canada from unconstitutional laws,” said Shakir Rahim, Director of the Criminal Justice Program.

The CCLA will argue the current law is clear and should be upheld. If the government was clearly wrong, acted in bad faith, or abused the legislative process, it can be legally liable for the passage of unconstitutional legislation. This can result in an award for damages under the Charter. The CCLA will also argue that courts should examine any case on its own facts and merits, and not unnecessarily limit the state’s liability for passing unconstitutional legislation.

The CCLA is grateful to Andrew Lokan and Mariam Moktar of Paliare Roland Rosenberg Rothstein LLP for their excellent pro bono representation in this case.