In Canada (Attorney General) v. Power, the Supreme Court of Canada confirmed that claimants may seek a monetary award (damages) if the state passes a law that violates their rights or freedoms under the Canadian Charter of Rights and Freedoms (the "Charter") and the law was "clearly unconstitutional", in "bad faith", or an "abuse of power". This decision preserves Charter claimants' ability to seek damages in these circumstances and reinforces the principle that Charter rights are only as meaningful as the remedies available for their breach.
The state enjoys only limited immunity against Charter damages awards
Section 24(1) of the Charter grants courts broad discretion to order an "appropriate and just" remedy for any violation of the rights and freedoms set out in the Charter. The central issue in Power was whether the state nonetheless enjoys absolute immunity against Charter damages awards for passing laws that violate the Charter. A majority of the Supreme Court of Canada held that the state enjoys only limited—not absolute—immunity against such awards.
In reaching this conclusion, the Court reaffirmed and clarified its earlier decision in Mackin v. New Brunswick (Minister of Finance). The Court held that Charter claimants may seek a damages award under s. 24(1) if the state passes a law that violates their rights or freedoms under the Charter and the law was "clearly unconstitutional", in "bad faith", or an "abuse of power". The Court stated that this test sets a "high threshold for damages" that strikes "a balance between the protection of constitutional rights and the need for effective government".
The Court held that this approach comports with the constitutional principles of parliamentary sovereignty, separation of powers, and parliamentary privilege:
- Parliamentary sovereignty remains subject to the constraints and accountability mechanisms set out in the Constitution, including the Charter. Moreover, awarding damages does not limit the legislature's power to enact or repeal legislation.
- The separation of powers is protected by the high threshold for damages, which prevents the judiciary from encroaching unduly on the legislative function.
- Parliamentary privilege remains protected because damages awards are made against the state, not individual members of Parliament. That said, parliamentary privilege may create certain evidentiary issues, since it would not be possible, for example, to compel a Member of Parliament to testify.
Accordingly, the Court held that limited state immunity strikes the right balance between protecting Charter rights and these other constitutional principles.
Courts may award damages if the Charter-violating law was "clearly unconstitutional", in "bad faith", or an "abuse of power"
The Court clarified the threshold for seeking damages awards for Charter-violating laws. Charter claimants may seek such an award if the state passes a law that violates their rights or freedoms under the Charter and the law was "clearly unconstitutional", in "bad faith", or an "abuse of power".
The Court stated that the "clearly unconstitutional" threshold requires an objective examination of the law itself, "particularly the nature and extent of its constitutional invalidity". A claimant can meet this threshold by showing that the state "either knew that the law was clearly unconstitutional, or was reckless or wilfully blind as to its unconstitutionality". The court must anchor this analysis at the time the state passed the law.
The Court also stated that a court may award damages if the law was in "bad faith" or an "abuse of power"—for example, where the state acted for an improper purpose or was dishonest. Given the "exacting" nature of this threshold, "bald or vague assertions will necessarily fall short".
Conclusion
The Court's landmark ruling confirms that Charter claimants may seek damages for Charter-violating laws where appropriate. At the same time, it reminds those claimants that they have a high threshold to meet, and that the principle of parliamentary privilege may limit their ability to meet their burden of proof. The decision has significant implications for a wide range of Charter claimants in a wide range of Charter cases, and for government accountability in Canada.
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