Courts Have Power To Order Damages For Unconstitutional Legislation

Can the government ever be liable in damages for enacting legislation that is later held to be unconstitutional? In Canada (Attorney General) v. Power, the Supreme Court of Canada said yes. The decision turns on the interplay between two sets of competing constitutional principles: those that protect the autonomy of legislatures and their processes (such as separation of powers, parliamentary sovereignty, and parliamentary privilege) and those that demand legislative accountability (such as constitutionalism and the rule of law). As a result, Power has joined the canon of Canada's foundational cases in constitutional law.

What you need to know

• The Supreme Court has confirmed that Charter claimants can potentially claim damages against the Crown for enacting unconstitutional legislation. The Court rejected Canada's argument that the Crown has absolute immunity in these situations.