The Prudent Parliament and Section 24(1)

Abstract

The appeal of Attorney General of Canada v Power was heard by the Supreme Court of Canada on December 7, 2023. The case concerns the availability of damages under section 24(1) of the Charter for legislative action. In response, our paper argues: 1) the text of section 24(1) does not bar damages for unconstitutional legislation; 2) the history of section 24(1) points towards damages for legislative action; 3) unwritten constitutional principles suggest courts should treat different types of damages differently; 4) precedent suggests Crown liability for unconstitutional legislation should proceed on a negligence standard for some types of damages; and 5) meeting the standard of care for such negligence should require Parliament to obtain legal advice. In advancing these arguments, we reconsider early Charter scholarship on the value of private law concepts to the unique public law context of section 24(1) in light of more recent jurisprudence.