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Limiting State Power: Supreme Court of Canada Rules Legislatures Do Not Have Absolute Immunity from Liability for Creating Laws that Infringe Charter Rights

Updated: Oct 5

by Victoria Wright, J.D. Candidate 2025
Staff Writer, Seven/Fifty
October 4, 2024
 
The court room of the Supreme Court of Canada.

When the government enacts unconstitutional laws, a declaration of invalidity under section 52(1) of the Constitution Act, 1867 is the “first and most important remedy.”[1] However, section 24(1) of the Constitution Act, 1867 also enables individuals whose rights under the Canadian Charter of Rights and Freedoms have been infringed to apply for “such remedy as the court considers appropriate and just in the circumstances.”[2] The individual remedies available under section 24(1) are broad and flexible — one example being monetary awards (damages).[3]


It is not contentious that individuals may seek damages for Charter violations by the executive branch of the state.[4] However, the Supreme Court of Canada recently confirmed in Canada (Attorney General) v Power that damages are also an appropriate remedy if the legislative branch enacts a law that is clearly unconstitutional, in bad faith, or is an abuse of power. This post describes the Court’s reasoning in this case, arguing, ultimately, that the decision constitutes an important step towards the full vindication of individual Charter rights.


BACKGROUND


In 1996, Mr. Power was convicted of two indictable offences and sentenced to eight months’ imprisonment.[5] At this time, individuals convicted of indictable offences could apply for a record suspension five years after their release.[6] Upon his release, Mr. Power attended college, graduated with an X-ray technician diploma, and worked as a medical radiation technologist.[7] After his employer became aware of his criminal record, Mr. Power was suspended from his employment and was unable to find other work in his field.[8] Though Mr. Power applied for a record suspension, his application was denied as the transitional provisions enacted by Parliament retroactively rendered him permanently ineligible for a record suspension.[9] Due to his criminal record, Mr. Power was unable to find any work in his profession.[10]


ISSUES


The transitional provisions prohibiting Mr. Power’s record suspension had previously been declared unconstitutional and the government conceded that the transitional provisions are unconstitutional.[11] However, Mr. Power brought a claim against the Government of Canada for damages under section 24(1) as the unconstitutional law infringed his Charter rights and, ultimately, damages are an appropriate and just remedy for this infringement.[12] The government sought to strike the claim, arguing that it enjoys absolute immunity from section 24(1) damages for the enactment of unconstitutional legislation as “the state cannot be held liable for anything done in the exercise of legislative power.”[13]


Both the Court of Queen’s Bench of New Brunswick and the Court of Appeal of New Brunswick found that the state does not have absolute immunity from section 24(1) damages in exercising its legislative powers.[14]


On appeal by the government, the Supreme Court of Canada considered a single issue: “can damages ever be an appropriate and just remedy under s. 24(1) of the Charter for the enactment of legislation later declared unconstitutional?”[15]


At the heart of this appeal was a set of difficult questions about the appropriate balance of state power. Should the state enjoy absolute or limited immunity from section 24(1) damages when it enacts legislation that violates the Charter? How can courts uphold the duty to protect Charter rights while affording legislative autonomy to the state to govern effectively? And generally, how can Canada’s commitment to constitutional principles such as parliamentary privilege, the separation of powers, and parliamentary privilege be reconciled with Canada’s commitment to protecting fundamental rights?


ANALYSIS


What are the Key Charter Principles Utilized in the Analysis?


The Supreme Court reaffirmed that under section 32(1), federal and provincial legislatures are subject to Charter scrutiny as “the Charter is essentially an instrument for checking the powers of government over the individual.”[16] An especially meaningful function of the Charter, in this regard, is the ability for courts to provide remedies when the state infringes upon one’s protected rights.[17] Throughout the whole analysis, the Supreme Court noted that, much like Charter rights, Charter remedies must also be interpreted with a purposive and generous approach.[18]


Does the Availability of Alternative Remedies Render Damages Inappropriate?


To begin its analysis, the Supreme Court rejected the government’s argument that the availability of an alternative remedy, such as a declaration of invalidity, renders damages inappropriate and unjust, and, as such, supports absolute immunity for the state. While there is a general presumption against combining section 52(1) and 24(1) remedies, the Court noted that there is no legal restriction in doing so.[19] Essentially, when a declaration of invalidity under section 52(1) is determined to be an appropriate remedy, individuals may still be entitled to a remedy under section 24(1), such as damages, so long as the result is not duplicative.[20] Damages are an appropriate and just remedy when the four-step Ward test is satisfied,[21] and when this is the case, they will remain on the table if a declaration of invalidity fails to “satisfy the functional need for compensation, vindication or to meaningfully deter future breaches.”[22] 


Does Limited Liability Interfere with the Foundational Constitutional Principles and the Legislature’s Law-Making Functions?


The Supreme Court also rejected Canada’s argument that absolute immunity for the state is necessary as damages would interfere with the legislature’s law-making functions and is inconsistent with the longstanding and foundational constitutional principles of parliamentary sovereignty, the separation of powers, and parliamentary privilege.[23] Instead, the Supreme Court found that these constitutional principles must be appropriately balanced with the need for meaningful remedies for the enactment of unconstitutional legislation — as was done in the Mackin case.[24] In support of this approach, the Supreme Court noted that our “constitutional jurisprudence has not created hierarchies of constitutional principles” and suggested that our “constitutional remedies must reflect the interdependency of principles, and balance the need for both government autonomy and accountability.”[25]


Mackin established that “while legislative bodies enjoy immunity from damages for the ‘mere enactment or application of a law that is subsequently declared to be unconstitutional,’” this immunity does not extend to situations where the law was “clearly wrong, in bad faith or an abuse of power.”[26] Though this is a high threshold for establishing liability, the Supreme Court reaffirmed that the Mackin limited immunity standard was intentionally designed to reconcile and balance competing constitutional principles:[27]


  • Parliamentary sovereignty refers to Parliament’s power to make and repeal laws within the confines of the Constitution. This principle was found not to be undermined by the Mackin standard as Parliament always remains “subject to the constraints and accountability mechanisms of the Constitution, including the Charter.”[28]

  • The separation of powers refers to the differentiation between the three branches of government (legislative, executive, and judicial). This principle was not undermined by the Mackin standard as the separation of powers in Canada is not watertight or strict and “the high bar for liability established in Mackin ensures that the judiciary does not unduly interfere with the government’s ability to carry out its legislative function.”[29]

  • Parliamentary privilege refers to the “shielding [of] some areas of legislative activity from external review” to give members of the legislature “the freedom of speech necessary to carry out their law-making power without fear of liability.” This principle was not undermined by the Mackin standard as Charter damages for the enactment of unconstitutional legislation are claimed against the state, not individual members of the legislature.[30] 


Is Mackin Binding?


Canada also argued that Mackin is not a binding authority as the Supreme Court has overruled the Mackin decision and even if the Supreme Court found it to be a binding authority, this decision should be overruled. However, the Supreme Court rejected both of these arguments, indicating that there has been no departure from the limited immunity threshold in the post-Mackin jurisprudence and that “absolute immunity would subvert the principles that command government compliance with the Charter and the court’s role in enforcing its fundamental guarantees.”[31] As such, Mackin was reaffirmed and continues to be a binding authority for Canadian courts.


What is the Clarified Mackin Standard?


In response to the different descriptions of the Mackin threshold and the vagueness of the “clearly wrong” wording, the Supreme Court clarified that this is an objective and high standard involving situations where the law was clearly unconstitutional, in bad faith, or an abuse of power.[32] Because of the objective nature of this standard, judges must look at the legislation itself, as well as the legislature’s knowledge of and respect for Charter rights, to determine whether the state knew that the law was clearly unconstitutional, or was reckless or willfully blind as to its unconstitutionality.[33]


CONCLUSION


In light of this analysis, the majority of the Supreme Court dismissed the appeal, finding that state immunity for the exercise of legislative power is in fact limited (not absolute).[34] As such, the state may be liable for Charter damages if Parliament or a legislature enacts a law that is clearly unconstitutional, in bad faith, or an abuse of power.[35] 


However, this decision was not unanimous. The Supreme Court was split five to four and there were two different reasons for dissent. Justice Jamal and Justice Kasirer dissented in part — arguing that the “bad faith” and “abuse of power” language should be eliminated from the Mackin standard. In Justice Jamal and Justice Kasirer’s view, the government should only be held liable for damages when enacted legislation is “clearly unconstitutional,” and holding the government liable for the preparation and drafting of legislation under the Mackin standard infringes upon the principle of parliamentary privilege. Justice Rowe and Justice Côté also dissented — arguing that absolute immunity for the legislature is necessary in order to uphold the principle of parliamentary privilege.


It is possible for this decision to be viewed with two lenses: (1) enabling greater protection of individual’s rights from state interference and the ability to seek financial compensation if this does occur; or (2) expanding the role of the judiciary from the assessment of the constitutionality of duly enacted laws and the conduct of the executive branch to broader oversight of the legislative process. Though diametrically opposed, both of these views are rooted in concerns about the appropriate balancing of power between the legislative and judicial branches of government.


I am of the opinion that the Charter is a valuable legal instrument in that it prescribes Canadians' protected rights and the remedies for breaches of said rights. As such, ensuring that individuals can pursue legal action for rights infringements is a key facet of constitutional law in Canada — a facet that is clearly strengthened, albeit controversially, by the Power decision. Whether the decision in Power will open the floodgates to undue legislative oversight is yet to be seen, however, and future Charter damages jurisprudence will be necessary in providing greater clarity.

 


[1] Canada (Attorney General) v Power, 2024 SCC 26 at para 34 [Power], citing Vancouver (City) v Ward, 2010 SCC 7 at para 1 [Ward].

[2] Canadian Charter of Rights and Freedoms, s 24(1), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK) ,1982, c 11 [Charter].

[3] Power, supra note 1 at paras 38 and 41.

[4] See e.g. Ward, supra note 1; Roncarelli v Duplessis, [1959] SCR 121.

[5] Power, supra note 1 at para 9

[6] Ibid at para 11.

[7] Ibid at para 9.

[8] Ibid at para 10.

[9] Ibid at para 11.

[10] Ibid.

[11] Ibid at paras 12-13.

[12] Ibid at para 2.

[13] Ibid at para 3.

[14] Canada (Attorney General) v Power, 2021 NBQB 107; Canada (Attorney General) v Power, 2022 NBCA 14.

[15] Power, supra note 1 at para 17.

[16] Ibid at para 30, citing McKinney v University of Guelph, [1990] 3 SCR 229 at 261.

[17] Ibid at para 31.

[18] Ibid at para 32.

[19] Ibid at para 45.

[20] Ibid.

[21] In Ward, the Supreme Court outlined a four-step test to assess whether damages are an appropriate and just remedy. The four-step test involves asking the following questions: (1) has a Charter right been breached? (2) would damages fulfill one or more of the related functions of compensation, vindicating the right, or deterring future breaches? (3) has the state demonstrated that countervailing factors defeat the functional considerations that support a damage award and render damages inappropriate or unjust? (4) what is the appropriate quantum of damages? Ibid at para 42 citing Ward, supra note 1.

[22] Ibid at para 45.

[23] Ibid at paras 46-47.

[24] Ibid at para 57.

[25] Ibid at para 79.

[26] Ibid at para 61, citing Mackin v New Brunswick (Minister of Finance), 2002 SCC 13 [Mackin].

[27] Ibid at para 65.

[28] Ibid at para 81.

[29] Ibid at para 82.

[30] Ibid at paras 85 and 91.

[31] Ibid at para 77.

[32] Ibid at para 100.

[33] Ibid at paras 103-105.

[34] Ibid at para 116.

[35] Ibid.

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