CANADA Trends and Developments Contributed by: Sujit Choudhry and Mani Kakkar, Circle Barristers
In practical terms, this is a very high standard. Power explained that the clearly unconstitutional standard would govern most cases where this limited immunity did not apply. For bad faith and abuse of power, Power suggested that evidence of improper purpose or dishonesty would suf - fice. But it also clarified that “a higher degree of misconduct” may be required for legislative bad faith and abuse of power than for executives. But Power broadened the scope of scope of Charter damages by clarifying that the standard of liability varied by institutional context for Char - ter damages and was set based on underlying constitutional principles. These constitutional principles were parliamentary sovereignty, the separation of powers, parliamentary privilege, on the one hand, and constitutionalism and the rule of law, on the other. Power also affirmed that “an assessment into immunity must focus on the branches of government implicated by the claim” . In the context of Charter challenges to legisla - tion, these principles yielded a high immunity threshold, because the legislature is institutional decision-maker. But executives cannot take the benefit of the legislature’s standard of liability. The scope of executive liability for Charter dam - ages is much broader, even for policy-making functions. For example, in Conseil scolaire fran - cophone de la Colombie-Britannique v British Columbia, 2020 SCC 13, the Supreme Court upheld a CAD6 million damages award against a provincial government for underfunding French language education. In that case, the Court also held that Charter damages promote good gov - ernance. More broadly, Power is important for the emerg - ing area of Charter class actions for executive actions affecting large numbers of individuals.
Power makes it clear that the abuse of power/ clearly unconstitutional/bad faith standard is inapplicable to these circumstances. Power is silent on restitutionary damages under the Char - ter, which is another emerging area of constitu - tional litigation and currently before the Federal Court in a class action against the federal gov - ernment on the Canadian Student Loan Pro- gram, in Ferris v Attorney General of Canada. Democracy Watch v Attorney General of Canada, 2024 FCA 158 The Federal Court of Appeal’s Democracy Watch is another key decision for 2024 and is on appeal to the Supreme Court. It addresses the unset - tled question of whether partial private clauses bar judicial review. The underlying dispute con - cerned an investigation by the federal Conflict of Interest and Ethics Commissioner of a complaint against Prime Minister Trudeau for violating the Conflict of Interest Act. The Commissioner dis - missed the complaint, and his decision was judi - cially reviewed. The Act contains a partial privative clause, which purports to exclude judicial review for errors of law and fact. The Court unanimously declined to consider the application for judicial review. It did so on the basis that the Act provides for alternative political remedies, which fall under the supervision of Parliament and lie within the legislative branch, and also the related argument that officers of the legislature are not subject to judicial review because they are protected by parliamentary privilege. But the Court divided on the constitutionality of partial privative clauses, with the Chief Justice ruling that such clauses were constitutional, and the two other members of the panel ruling that they were not. The Federal Court of Appeal as a
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