In a decision of interest to those involved in Charter class actions, the Supreme Court recently revisited and reaffirmed the (limited) availability of Charter damages in relation to unconstitutional legislation in Canada (Attorney General) v. Power, 2024 SCC 26 (“Power”).
Subject to legislation that retrospectively rendered him permanently ineligible for a suspension of his criminal record, Joseph Power sought Charter damages under s. 24, and a declaration of invalidity under s. 52. He pled that the enacting legislation clearly violated the Charter, was enacted in bad faith and was abusive.
Canada Asks the Court to Find That an Absolute Immunity Applies
In response, Canada brought a motion on a question of law that it would, in time, pursue up to the Supreme Court of Canada.
By the time that Canada's motion was heard, the legislation in question had been declared unconstitutional by the Supreme Court of British Columbia, the Federal Court, and the Ontario Superior Court of Justice.[1]
Conceding the unconstitutionality of the applicable laws, Canada argued – despite the court's statement in Mackin v. New Brunswick (Minister of Finance) (“Mackin”), that damages are available for laws that are "clearly wrong, in bad faith or an abuse of power"[2] – that Charter damages are never available for the enactment of legislation later found to violate Charter rights.
That argument for an absolute immunity failed before the motion judge and was rejected by the New Brunswick Court of Appeal.[3] It found a mixed audience at the Supreme Court.
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