SCC confirms no absolute immunity from Charter damages for unconstitutional legislation

SCC confirms no absolute immunity from Charter damages for unconstitutional legislation

In Canada (Attorney General) v. Power, 2024 SCC 26, the Supreme Court of Canada revisited the issue of whether an award of monetary damages can be ordered against a government for Charter breaches related to legislation found by a court to be unconstitutional.

Previous Cases on Immunity

In 2002, the Court held in Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13 that the state has a limited immunity (freedom from prosecution for the violation of a law) in the exercise of its law-making power such that damages can only be awarded for conduct that is “clearly wrong, in bad faith or an abuse of power.” Such immunity, the Court noted, is necessary to “balance between the protection of constitutional rights and the need for effective government.”

A Four-Step Test for Damages for Charter Breaches

In a subsequent decision, Vancouver (City) v. Ward, 2010 SCC 27, the Court established a four‑step test for determining whether damages were an appropriate remedy:

• has a Charter right has been breached?
• would damages fulfill one or more of the related functions of compensation, vindicating the right, or deterring future breaches?
• has the state demonstrated that countervailing factors defeat the functional considerations that support a damage award and render damages inappropriate or unjust?
• If damages are appropriate, what is the appropriate quantum of damages?

The Crown’s Argument for Immunity from Charter Damages:

The Canadian government argued before the Court in Power that it has immunity from Charter damages. The Canadian government argued this happened when making new laws through Parliament that are later found to be unconstitutional and that it cannot be held liable for anything done in the exercise of its legislative (lawmaking) power. The Court disagreed, reaffirming the “qualified immunity” approach taken in Mackin.

The Court Looks at Mackin Case:

In this case, the Court found that absolute immunity for the Canadian government would negatively interfere with the principles that require the government to be held accountable for infringing Charter rights. These principles include:

• constitutionality (acting under the direction of the Canadian constitution— in this case the government’s role under the Charter to protect the rights of individual people); and
• the rule of law.

The Mackin approach provides the appropriate balance between upholding these principles and those that relate to the protection of:

• legislative autonomy, such as parliamentary sovereignty (ensuring that Parliament is the only body that can make federal laws for Canada); and
• parliamentary privilege (rights that members of Parliament have, which includes speaking and working on laws while inside of the legislature).

Qualified Immunity:

The Court clarified the Mackin qualified immunity threshold, which is assessed at step three of the Ward framework, as follows: the good governance defence will prevail unless the law was clearly unconstitutional, in bad faith or an abuse of power. If this threshold is not met, then the balance of constitutional principles tilts in favour of state immunity.