CANADA Trends and Developments Contributed by: Laura Bevan, Craig Ferris KC, Anna Paczkowski and Catherine Whitehead, Lawson Lundell LLP
The dissents Justices Kasirer and Jamal dissented in part, holding the Crown should enjoy an absolute immunity from damages under Section 24(1) of the Charter when preparing and drafting primary legislation. This conduct, they concluded, is pro- tected from judicial interference by parliamenta- ry privilege and courts have no role in reviewing or assigning liability for it. In contrast, Justices Kasirer and Jamal held the Crown should only enjoy limited immunity for the enactment of Charter infringing legislation and can be liable in damages for harms flowing from only “clearly unconstitutional” enactments. Justices Côté and Rowe would have accorded the Crown absolute immunity, concluding that the principle of parliamentary privilege was “fundamentally at odds with awarding damages against the Crown in the manner sought”. Open- ing the door to Section 24(1) damages “would upset the dialogical balance between legislatures and the courts” and would thrust the court “into a position of overseeing the work of Parliament and the provincial legislatures, and inquiring into the motives and knowledge of parliamentarians and others involved in the legislative process”. The limited immunity threshold articulated by the majority of the SCC in the Power case estab- lishes that while it is a high bar to meet, damages may be an appropriate and just remedy when a claimant’s Charter rights have been violated by unconstitutional legislation. We should expect the confines of this limited immunity, and the evi- dential issues establishing it has been exceeded entails, to be debated in future cases.
conceded that this retrospective application unjustifiably violated the Charter because it had the effect of adding to an offender’s punishment. The issue in the Power case was whether, notwithstanding the broad discretion given to courts by Section 24(1) of the Charter to craft an appropriate and just remedy when Charter rights are violated or denied, the Canadian Parliament and the provincial legislatures nonetheless enjoy absolute immunity from court-imposed damag- es when engaged in their lawmaking functions. Amongst other things, the Attorney General of Canada argued that the prospect of liability for Section 24(1) damages would impede the state’s ability to govern effectively. The Attorney Gener- al of Canada submitted anything less than abso- lute immunity was inconsistent with the consti- tutional principles of parliamentary sovereignty, the separation of powers and parliamentary privilege and would threaten good governance. Majority affirms limited immunity available Chief Justices Wagner and Karakatsanis, writ- ing for a five justice majority, held the state is not entitled to absolute immunity from liabil - ity for damages when it enacts legislation that infringes Charter rights. The state only enjoys limited immunity in the exercise of its lawmak- ing power, and a defence of immunity will be available to the state unless the law was clearly unconstitutional (in the sense that, at the time of its enactment, it would clearly violate Charter rights), or its enactment was in bad faith or an abuse of power. This high, but not insurmountable, threshold, the majority reasoned, reconciles the court’s duty to protect Charter rights from state infringement and the need for the state to have the legislative autonomy to govern effectively.
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