On July 19, 2024, the Supreme Court of Canada released its decision in Canada (Attorney General) v. Power, 2024 SCC 26. The CCLA was an intervenor in the case. This appeal concerned if and when the state can be held liable for damages if legislation is found to violate the Charter of Rights and Freedoms.
The CCLA argued that the Court should continue to follow an earlier decision on the issue, Mackin v. New Brunswick, 2002 SCC 13. Under Mackin, the state can be held liable for Charter damages if the legislation was clearly unconstitutional, in bad faith, or an abuse of power. The CCLA also argued that any case should be examined based on its own facts and merits and that the Court should not unnecessarily limit state liability.
The Court ruled that Mackin continues to apply and emphasized that damage awards under the Charter are important to ensure that the state is held accountable when it breaches Charter rights (para. 95). The Court noted, “shielding the government from liability in even the most egregious circumstances…would subvert the principles that demand government accountability” (para. 5).
The decision can be read here, and CCLA’s factum can be read here.
The CCLA is grateful to Andrew Lokan and Mariam Moktar of Paliare Roland Rosenberg Rothstein LLP for their excellent pro bono representation in this case.
About the Canadian Civil Liberties Association
The CCLA is an independent, non-profit organization with supporters from across the country. Founded in 1964, the CCLA is a national human rights organization committed to defending the rights, dignity, safety, and freedoms of all people in Canada.
For the Media
For further comments, please contact us at media@ccla.org.
English (Canada) 
Français du Canada