The respondent sought Charter damages under s. 24(1) against the Crown after Parliament enacted transitional provisions that retroactively rendered him permanently ineligible for a criminal record suspension, in violation of ss. 11(h) and (i) of the Charter.
The Crown moved to strike the claim, asserting absolute immunity for the enactment of legislation.
The majority (Wagner C.J. and Karakatsanis J., Martin, O'Bonsawin and Moreau JJ. concurring) held that the state enjoys only a limited immunity — not absolute immunity — for the enactment of unconstitutional legislation, affirming the threshold in Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13: Charter damages are available if the legislation was clearly unconstitutional, in bad faith, or an abuse of power.
Jamal J. (Kasirer J. concurring) dissented in part, accepting the clearly unconstitutional standard but rejecting bad faith and abuse of power as grounds, and answering the first question in the negative on the basis of parliamentary privilege.
Rowe J. (Côté J. concurring) dissented in full, holding that parliamentary privilege requires absolute immunity for the preparation, drafting, and enactment of legislation.
The appeal was dismissed with costs.
