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ARTICLE · 02 OCTOBER 2024

Charter Rights And State Liability: SCC Reiterates Threshold For Claims Against The State For Damages

Blake, Cassels & Graydon LLP
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On July 19, 2024, the Supreme Court of Canada (SCC) rendered judgment in Canada (Attorney General) v. Power (Power) on the availability of damages against the federal...

CanadaLitigation, Mediation & Arbitration
Claude Marseille
Claude Marseille
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On July 19, 2024, the Supreme Court of Canada (SCC) rendered judgment in Canada (Attorney General) v. Power (Power) on the availability of damages against the federal or provincial governments for enacting legislation contrary to the Canadian Charter of Rights and Freedoms (Charter). The SCC had previously opened the door to such claims in Mackin v. New Brunswick (Minister of Finance) (Mackin). The SCC's decision in Power clarifies the threshold for damages in such circumstances and raises the question of whether the same principles apply to legislation that violates Quebec's Charter of Human Rights and Freedoms (Quebec Charter).

No Absolute Immunity

In Power, the plaintiff alleged that his Charter rights had been violated when Parliament retrospectively changed the availability of criminal record suspensions for certain offenders. The plaintiff claimed damages against Canada under s. 24(1) of the Charter. Canada conceded that the law infringed the Charter but argued that the

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