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Charter - s.24(1) Remedies (2). Canada (Attorney General) v. Power
In Canada (Attorney General) v. Power (SCC, 2024) the Supreme Court of Canada re-considers and confirms [the previous case was Mackin (SCC, 2002)] whether and how the Crown can be liable for Charter damages for passing unconstitutional legislation.
Here the court reviews the 'general' s.24(1) remedies Charter provision:(3) Remedies for Breaches of Charter Rights
[31] The Charter guarantees the rights and freedoms of all Canadians and provides remedies for their breach. Granting remedies is the courts’ “most meaningful function under the Charter” (Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170, at p. 196).
[32] It is well accepted that the need for a purposive and generous approach to Charter interpretation “holds equally true for Charter remedies as for Charter rights” (Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 24). Courts have a duty to determine the appropriate constitutional remedy for a Charter violation and to ensure that the remedy is commensurate with the extent of the violation (Corbiere v. Canada (Minister of Indian and Northern Affairs), 1999 CanLII 687 (SCC), [1999] 2 S.C.R. 203, at para. 46). This appeal is concerned with declarations of unconstitutionality under s. 52(1) of the Constitution Act, 1982 and damages under s. 24(1) of the Charter.
[33] Section 52(1) provides that the “Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect”.
[34] A declaration of invalidity under s. 52(1) is the “first and most important remedy” when dealing with unconstitutional legislation (Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28, at para. 1). Section 52(1) establishes the supremacy of the Constitution and empowers courts to declare legislation “of no force or effect” in part or in full. This remedy allows courts to protect Charter rights while respecting the distinct role of the legislature in our constitutional order (Schachter v. Canada, 1992 CanLII 74 (SCC), [1992] 2 S.C.R. 679, at p. 715; Ontario (Attorney General) v. G, 2020 SCC 38, [2020] 3 S.C.R. 629, at paras. 84-99).
[35] Section 24(1) provides that anyone whose Charter rights or freedoms have been infringed or denied may apply for “such remedy as the court considers appropriate and just in the circumstances”.
[36] Section 24(1) provides a “personal” or “individual” remedy in the sense that it is specific to the violation of the applicant’s rights (R. v. Albashir, 2021 SCC 48, at para. 33; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 61). It must be remembered, however, that it is a “unique public law remedy” against the state that should not be assimilated to the principles of private law remedies (Ward, at paras. 22 and 31; Ravndahl v. Saskatchewan, 2009 SCC 7, [2009] 1 S.C.R. 181, at paras. 26-27).
[37] Like other Charter provisions, s. 24(1) must be interpreted generously and purposively (Doucet-Boudreau, at para. 24). It must be construed “in a manner that best ensures the attainment of its objects” and, more generally, benefits from the principle of statutory interpretation that remedial statutes should receive a “large and liberal” interpretation (R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575 (“Dunedin”), at para. 18).
[38] The remedial discretion afforded to courts under s. 24(1) is broad. This Court has stated that “the language of this provision appears to confer the widest possible discretion on a court to craft remedies for violations of Charter rights” (Dunedin, at para. 18), and that it “is difficult to imagine language which could give the court a wider and less fettered discretion” (Mills v. The Queen, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863, at p. 965).
[39] The broad discretion afforded under s. 24(1) and a purposive approach to remedies combine to give meaning to the idea that Charter rights are only as meaningful as the remedies provided for their breach. In this way, s. 24(1) is “a cornerstone upon which the rights and freedoms guaranteed by the Charter are founded, and a critical means by which they are realized and preserved” (Dunedin, at para. 20).
[40] In Doucet-Boudreau, the Court noted that s. 24 must be allowed to evolve to meet the different contexts in which Charter violations occur, and must remain flexible and responsive to the needs of a given case (para. 59). In general terms, the Court explained that a just and appropriate remedy under s. 24(1) will: (1) meaningfully vindicate the claimant’s rights and freedoms; (2) employ means that are legitimate within the framework of our constitutional democracy; (3) be a judicial remedy which vindicates the right while invoking the function and powers of a court; and (4) be fair to the party against whom the order is made (paras. 55-58). . Canada (Attorney General) v. Power
In Canada (Attorney General) v. Power (SCC, 2024) the Supreme Court of Canada re-considers and confirms [the previous case was Mackin (SCC, 2002)] whether and how the Crown can be liable for Charter damages for passing unconstitutional legislation.
Here the court considers the argument and sometimes presumption that s.24(1) 'general' Charter remedies (which include Charter damages) are not available where a s.52(1) declaration of invalidity has already been made:[44] First, Canada relies on the availability of an alternative remedy. Canada asserts that the availability of a declaration of invalidity under s. 52(1) will always render damages inappropriate and unjust. Canada asserts that damages will never be appropriate for the enactment of legislation subsequently declared unconstitutional because the declaration of unconstitutionality will always be sufficient. Canada submits that judicial review of a decision under the invalid law may also be appropriate in certain cases.
[45] While there is a general presumption against combining remedies under ss. 24(1) and 52(1) (Schachter, at p. 720; Mackin, at paras. 78-81), there is no categorical restriction. This Court has instead adopted a functional and flexible approach to combining remedies that is driven by principled and purposive considerations (Ferguson, at para. 53; G, at para. 147; Roach, Constitutional Remedies, at §§ 3:8-3:18). It is true that the existence of an alternative remedy is a countervailing consideration (Ward, at para. 33). However, the concern with alternative remedies is to avoid duplication and double recovery (para. 35; Brazeau v. Canada (Attorney General), 2020 ONCA 184, 149 O.R. (3d) 705, at para. 43). Provided an award of Charter damages is not duplicative, the potential to combine declarations and damages must remain available in situations where a declaration would fail to satisfy the functional need for compensation, vindication or to meaningfully deter future breaches (Albashir, at paras. 61-67; Ward, at para. 56; see also P. W. Hogg and W. K. Wright, Constitutional Law of Canada (5th ed. Supp.), at § 40:13). In some cases, a declaration of invalidity alone may be an insufficient and even hollow remedy. The availability of a declaration under s. 52(1) cannot absolutely displace a claim for damages under s. 24(1). The same is true for the availability of judicial review for a decision under the invalid law.
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[81] First, parliamentary sovereignty is not undermined by the Mackin threshold. As noted above, parliamentary sovereignty does not mean that Parliament is above the Constitution. Parliament remains subject to the constraints and accountability mechanisms of the Constitution, including the Charter. By the text of s. 32(1), the Charter specifically applies to Parliament and the provincial legislatures. The supremacy of the Constitution in relation to Parliament is well recognized in each application of s. 52 of the Constitution Act, 1982. Limited immunity does not impair Parliament’s power to make and repeal laws within the confines of the Constitution.
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