Trudeau's government wanted ABSOLUTE IMMUNITY from being sued for uncons...

Bloggers NOTE:  with Transcript

S EE   https://theccf.ca/ccf-pleased-by-scc-ruling-no-absolute-immunity-from-damages-for-charter-violating-laws/

see also   Supreme Court Canada  https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20546/index.do

 

see also analisis 

https://thehub.ca/2024/07/31/asher-honickman-the-supreme-courts-controversial-new-decision-radically-rewrites-canadas-constitutional-order/?utm_source=The%20Hub&utm_campaign=83fc1624fa-EMAIL_CAMPAIGN_2024_06_07_10_31_COPY_01&utm_medium=email&utm_term=0_-0e9056dd2c-%5BLIST_EMAIL_ID%5D&mc_cid=83fc1624fa&mc_eid=7b6d081327

 

...

Transcript 

hi there today I want to tell you about

0:02

a decision that just came out from the

0:03

Supreme Court in a case that we at the

0:06

CCF intervened in the big question in

0:09

this case called RV power was can you

0:12

sue the government for damages for money

0:15

for an unconstitutional law now the

0:18

shocking thing about this case was that

0:20

the federal Trudeau government was

0:22

arguing that they had absolute immunity

0:26

from being sued by people who were hurt

0:29

by their constitutional laws even after

0:32

courts had struck down those laws as

0:34

unconstitutional the government in

0:36

Ottawa was saying that people hurt by

0:38

those laws can never Sue we had argued

0:42

as an intervenor that there is no

0:45

absolute immunity and I'm happy to tell

0:48

you today that the court sided with us I

0:51

can't wait to tell you all about it

0:55

[Music]

1:03

if you're new here welcome my name is

1:04

Christine and I'm the litigation

1:06

director at the Canadian Constitution

1:08

Foundation a legal charity that fights

1:10

for fundamental freedoms in Canada I

1:12

upload regular videos about our ongoing

1:14

legal cases and about other interesting

1:16

developments in constitutional law in

1:18

Canada so if that sounds like something

1:20

you'd be interested in please hit like

1:22

And subscribe below it really helps my

1:24

videos out a lot also please remember

1:26

nothing in these videos is ever legal

1:28

advice if you have your own legal

1:29

question or problem please consult your

1:31

own lawyer so as I said this case is

1:34

called RV power I'll leave a link to it

1:37

in the description below and the main

1:39

issue in the case was this question of

1:41

whether you can sue the government for

1:43

an unconstitutional law now it's

1:46

important here to distinguish between

1:47

suing the government for an

1:49

unconstitutional law which is what's

1:51

proposed here and suing for

1:53

unconstitutional acts by government

1:56

state agents or the executive so we're

2:00

all familiar with lawsuits for say

2:02

police brutality or even the ongoing

2:05

lawsuit right now for the executive

2:08

action harm caused by the executive

2:11

action of the Trudeau government

2:13

freezing bank accounts when they uh when

2:16

they declared an emergency under the

2:18

emergencies act now you can sue for

2:21

damages for that you can sue for damages

2:23

for executive Acts or acts by state

2:26

agents that's wellestablished but what

2:29

if you have Dam es flowing from the law

2:32

itself that is what Mr power in this

2:35

case said he was suffering from so this

2:38

is the difference between suing for an

2:40

unconstitutional law and suing for an

2:43

unconstitutional act by a state agent so

2:46

in power's case he had been convicted of

2:49

criminal offenses in the 1990s he served

2:52

his time and he uh became an x-ray

2:55

technician he looked into getting a

2:58

pardon for those criminal off offenses

3:00

but by the time he got around to

3:02

applying for his pardon the regime for

3:04

granting pardons had changed and there

3:06

was now this new federal law that

3:09

prohibited him from getting a pardon now

3:12

this regime actually applied

3:14

retrospectively so even though at the

3:16

time of his conviction he would have

3:18

been eligible to apply for a pardon

3:21

after 5 years now because of this new

3:24

new law he was permanently ineligible

3:27

for a pardon and it eventually came out

3:30

to his employer that he had this

3:31

criminal record that he couldn't get the

3:34

pardon and as a result he was let go

3:36

from his job now eventually the law that

3:39

was preventing him from getting that

3:41

pardon was struck down as

3:43

unconstitutional but by then he'd

3:45

already lost his job and his income so

3:48

he wanted to sue the government for

3:49

damages for that law that had been found

3:52

unconstitutional and the question that

3:54

went to the Supreme Court in this case

3:56

was can he can he Sue now this is not an

4:00

entirely novel question even though it's

4:02

different from suing for executive Acts

4:05

or acts of State agents this is still

4:08

not a new question there's existing case

4:11

law a case that's about 20 years old

4:13

called Mackin that says that you

4:15

actually can sue for an unconstitutional

4:18

law if a high threshold is met so you

4:21

can sue for an unconstitutional law if

4:23

that law was enacted in bad faith or as

4:26

an abuse of power or if it was clearly

4:28

unconstitutional

4:30

now that's a a high threshold that

4:32

mackan set out but it should be a high

4:35

threshold governments can't govern

4:37

effectively if there is a permanent

4:39

Spectre of liability hovering over every

4:42

single policy decision that they make on

4:44

the other hand governments shouldn't be

4:47

immunized from just trampling on our

4:50

constitutional rights in bad faith and I

4:53

think that the court got it right in

4:54

Mackin and that had been the law for

4:57

about 20 years we haven't seen the

4:58

floodgates open with this you know

5:02

tsunami of litigation bankrupting our

5:04

country the court just in this case

5:07

affirmed the standard for Mackin which I

5:10

think is good both for accountability

5:12

but also good for stability of the law

5:15

now the court in this case affirmed

5:17

mackan they found that the Constitution

5:19

must be read so that the key principles

5:22

are reconciled with one another not read

5:25

reflecting some hierarchy in which one

5:27

principle is subordinated to another the

5:30

court explained that constitutional

5:31

remedies must reflect a balance and must

5:34

take into account government

5:35

accountability and the government

5:37

concluded that a limited amount of

5:40

immunity rather than absolute immunity

5:43

best achieves that balance it considered

5:46

these various principles like

5:48

parliamentary sovereignty parliamentary

5:50

privilege and the separation of powers

5:52

and found that those principles are not

5:55

in conflict with this limited immunity

5:58

now the majority concluded uded that

6:00

while our democracy requires the

6:02

preservation of an independent space for

6:04

elected representatives to carry out

6:06

their parliamentary duties in which

6:08

includes debating and deciding our laws

6:12

they found that absolute immunity would

6:13

actually subvert the principles that

6:16

ensure government accountability namely

6:18

the rule of law and the Court's role in

6:20

ensuring compliance with the

6:22

Constitution so that is essentially what

6:24

we at the CCF had argued that allowing

6:27

for the ability to sue in some limited

6:29

cases for unconstitutional laws is

6:31

actually necessary for accountability

6:33

now that threshold bad faith clearly

6:35

unconstitutional or abuse of power is

6:38

this this threshold that needs to be met

6:40

if you're going to sue for an

6:41

unconstitutional law and the majority uh

6:44

did some work trying to clarify what

6:47

those terms mean it said that mere

6:49

negligence wouldn't be enough to

6:51

overcome the immunity um we had also

6:55

argued this that negligence wouldn't be

6:56

enough and instead the court found that

7:00

the law would need to be clearly

7:01

unconstitutional in the sense that the

7:03

state either knew that the law was

7:05

clearly unconstitutional or was Reckless

7:08

or willfully blind as to its

7:10

unconstitutionality now the government

7:12

the federal government had argued that

7:15

this standard of bad faith and Abus of

7:17

power should just be thrown out and the

7:19

majority rejected that they declined to

7:23

uh throw out or discard that part of the

7:25

test but they didn't you know provide a

7:28

huge amount of clarity about what those

7:29

terms actually mean so what about Mr

7:32

power uh can he Sue well the court said

7:35

that he can try and I'm not convinced

7:38

that his case meets that threshold of

7:41

clearly unconstitutional abuse of power

7:43

or bad faith um but the Supreme Court

7:46

said that he can try he might not be

7:48

successful but what kind of cases might

7:51

meet that threshold when this hearing

7:53

happened there were a lot of

7:55

hypotheticals discussed but we actually

7:57

don't even need to talk about

7:58

hypothetical we can look at some real

8:01

examples from Canada's own history

8:04

because we have a history of enacting

8:06

unconstitutional laws that the enactment

8:09

of the law itself can harm people the

8:11

laws that intered Japanese Canadians

8:14

into camps uh there was laws Banning

8:18

indigenous potlot ceremonies there were

8:21

laws that had forced sterilization of

8:24

indigenous women in fact there are

8:27

damages that can flow from these laws

8:30

even if Government action by state

8:33

agents or the executive is not yet taken

8:36

so let's look at the example of

8:37

internment camps you know the

8:39

legislature might pass a law saying

8:41

people of a certain ethnicity are sent

8:43

to an internment camp and people of that

8:46

ethnicity may take action in response to

8:49

that clearly unconstitutional or abuse

8:52

of power law um they may relocate they

8:56

may sell their possessions there are

8:58

damages to to those people um that

9:01

result from the law itself before the

9:05

executive part of government even takes

9:06

action or consider legislation that

9:10

existed that related to force

9:13

sterilization if the legislature were to

9:15

do that if they were to pass another law

9:18

like that people again they who are

9:20

subject to that law they might move they

9:23

might go into hiding they may

9:25

preemptively do things to their bodies

9:27

to preempt the state for from taking

9:29

action and there are damages that flow

9:33

from the enactment of those

9:36

unconstitutional clearly

9:37

unconstitutional laws let's consider

9:40

another example I've talked about this

9:41

one in a previous video I did about this

9:43

case there's something called a bill of

9:45

attainer and these used to get passed in

9:47

England these are acts of the

9:49

legislature that declare a person or a

9:52

group of people guilty of some crime and

9:54

punishing them without a trial so a bill

9:57

of attainer might say you know Christine

10:00

she's a very bad person no one should

10:02

speak to her no one should employ her

10:05

she's a

10:06

pariah uh we should give her the death

10:09

penalty even so you know you might be

10:11

thinking bills of a tainer those are

10:13

these old things from England uh this is

10:16

irrelevant hypothetical but parliament

10:18

in Canada has twice tried to pass bills

10:20

of a Tanger I mean not to people like me

10:24

they were passed bills of attainer

10:26

against some two notorious serial

10:28

killers

10:30

but they still did they still tried so

10:33

you might think that because these are

10:34

you know serial killers that they tried

10:36

to pass bills of attainer related to

10:38

that those are not you know good

10:40

examples but the simple fact is that

10:43

this is not how our system is intended

10:45

to work we should be concerned when

10:48

governments have a history of passing

10:50

laws that are abusive or in bad faith um

10:54

this is a high threshold like how would

10:56

you feel if the government if parliament

10:59

passed a law specifically targeting you

11:02

or targeting one of your political

11:04

enemies or someone who may be unpopular

11:07

in the mainstream but who for whatever

11:09

reason you happen to like the the

11:12

government has shown in in our living

11:15

history that they have a willingness to

11:17

pass specific laws targeting individual

11:20

people um if if they're willing to do

11:24

that I think that we need some type of

11:26

recourse to prevent that from happening

11:29

uh I want to come down on the side of

11:32

limiting the government's power to do

11:35

this the state should not be entitled to

11:38

this absolute immunity from claims of

11:40

Damages and individuals should have a

11:43

right to sue I think when that high

11:45

threshold in Mackin is met and the

11:47

Supreme Court has now affirmed this now

11:50

the thing that is interesting about this

11:52

case is this tension or relationship

11:56

maybe between competing constitutional

11:58

principles there's the the legislative

12:00

autonomy the the autonomy of parliament

12:02

to pass these laws and then there's

12:04

legislative accountability what recourse

12:06

do we have as Citizens when governments

12:09

enact laws that are abusive or in bad

12:11

faith or clearly

12:13

unconstitutional so by legislative

12:15

autonomy I mean this idea that

12:17

Parliament is Sovereign Parliament

12:18

controls its own process that the

12:20

Judiciary and the legislature are

12:22

separate that the legislature makes the

12:24

laws that's their function and the

12:26

courts interpret the laws or strike them

12:28

down

12:29

but they may not overtake parliament's

12:31

Independence to make those laws and

12:34

there have been some critics of this

12:36

case who have said that this power case

12:39

is now that's what the courts are doing

12:41

now they're they're overstepping and

12:44

overtaking parliament's Independence to

12:46

make laws even unconstitutional laws

12:48

that are in bad faith now the other set

12:51

of principles are legislative

12:53

accountability so constitutionalism and

12:56

the rule of law these are fundamental

12:57

principles that guide the courts in

12:59

Parliament when these principles are

13:01

violated I think that there must be

13:04

accountability and look I am on the

13:06

record as a skeptic of judicial power um

13:10

I think that judges have very different

13:12

lives from the rest of us and judges get

13:14

it wrong and sometimes judges are overly

13:17

um ambitious and overly want to intrude

13:21

into the policymaking realm that should

13:24

be the the uh sole responsibility of

13:26

parliament um and I understand you know

13:28

some people people are saying that this

13:30

case is undermining parliament's power

13:32

and

13:33

Supremacy but as you all probably know

13:35

I'm also a skeptic of power generally

13:38

I'm not just a skeptic of judicial power

13:40

I'm a skep skeptic of Parliament and of

13:43

politicians and I don't want them to

13:45

have unlimited immunity the way the

13:47

government the Trudeau government was

13:49

proposing they have here for those

13:52

people who like me don't trust judges

13:55

you look I agree but I want to know why

13:57

you would trust politicians with

13:59

unlimited immunity allowing these

14:02

limited situations where people who are

14:04

badly hurt by clearly unconstitutional

14:07

laws that are enacted in bad faith or

14:09

abusive allowing them to Super damages

14:12

is I think a reasonable check on that

14:15

power and it's consistent with the

14:17

principles of constitutionalism and the

14:19

rule of law you know our politicians are

14:22

not some Noble philosopher Kings we

14:24

should not trust them with the amount of

14:26

power and Immunity that they were asking

14:29

for in this case and I think we at the

14:31

CCF came down on the right side of the

14:34

issue limiting state power to hurt

14:37

citizens and I think that the Supreme

14:39

Court in this case got it right now I

14:41

would love to know your take on the

14:43

issue leave a comment below letting me

14:45

know what you think of the case uh a

14:47

link to the decision alow if you're

14:49

interested in this case and other cases

14:52

like it make sure you sign up for our

14:53

email Freedom updates at the

14:56

cf. freedom updates okay that's that's

14:59

it for this update thanks for watching

15:00

and let's keep fighting for freedom in

15:02

Canadahttps://theccf.ca/ccf-pleased-by-scc-ruling-no-absolute-immunity-from-damages-for-charter-violating-laws/