By Scott Chimuk and David Mann, K.C.
In a pivotal decision, the Supreme Court has ruled that “the state is not entitled to an absolute immunity from liability for damages when it enacts unconstitutional legislation that infringes Charter rights": Canada (Attorney General) v. Power, 2024 SCC 26 (CanLII).
The Supreme Court held that allowing the government absolute immunity would infringe on constitutionality and the rule of law. Specifically, the Court held that damages may be awarded under s 24 (1) of the Charter against Canada for the enactment of legislation which violates the Charter.
In finding that the state does not enjoy absolute immunity in respect of the enactment of legislation the Supreme Court set out a 4 part test to determine whether damages are appropriate for legislation which violates the Charter:
Has a Charter right 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?
What is the appropriate quantum of damages?
This ruling opens the door for potential litigation against the government with respect to the enactment of legislation which is found to be unconstitutional. Further, in obiter dicta, the Supreme Court held that, in addition to unconstitutional legislation, that the government may be liable for legislation that “was in bad faith or an abuse of power”.
Clearly, the threshold test for such liability would be high, however, we anticipate that this may open the door for litigation against the government where it can be clearly established that it is acting in bad faith or otherwise abusing its power. Additionally, although the Power decision involved the federal government, we anticipate that arguments will be made that it is equally applicable to both provincial and municipal governments.
To learn more, listen to Definitely Not Legal Advice, Episode 31 - Supreme Court finds Government can be Liable for Unconstitutional Legislation with Scott Chimuk
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