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ARTICLE · 25 JULY 2024

SCC Affirms Limited Government Immunity For Enacting Charter-violating Legislation

Osler, Hoskin & Harcourt LLP
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On July 19, 2024, the Supreme Court of Canada (SCC) released a significant decision on the availability of damages under the Canadian Charter of Rights and Freedoms...

CanadaLitigation, Mediation & Arbitration
Emily MacKinnon
Emily MacKinnon
Emily Wang
Emily Wang
W. David Rankin
W. David Rankin
Ankita Gupta
Ankita Gupta
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On July 19, 2024, the Supreme Court of Canada (SCC) released a significant decision on the availability of damages under the Canadian Charter of Rights and Freedoms for harm caused by legislation subsequently declared unconstitutional. In Canada (Attorney General) v. Power, by a slim majority, the SCC held that governments may be liable for damages where legislation was clearly unconstitutional when enacted, or where it was enacted in bad faith or as an abuse of power.

This Osler Update discusses the legal and practical implications of this judgment for governments and industries impacted by legislated changes.1

Background

In 1996, the respondent, Joseph Power, was convicted of two indictable criminal offences. He was sentenced and served his sentence. Years after his release, the respondent applied for a record suspension, but was denied due to legislation that retroactively deemed him permanently ineligible for a record suspension.

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