Supreme Court of Canada **Appeal Heard:** December 7, 2023

Judgment Rendered: July 19, 2024 Docket: 40241 --- ## Parties Between: Attorney General of Canada — Appellant and Joseph Power — Respondent and Attorney General of Ontario, Attorney General of Quebec, Attorney General of Nova Scotia, Attorney General of New Brunswick, Attorney General of Manitoba, Attorney General of British Columbia, Attorney General of Prince Edward Island, Attorney General of Saskatchewan, Attorney General of Alberta, Attorney General of Newfoundland and Labrador, Fisher River Cree Nation, Sioux Valley Dakota Nation, Manto Sipi Cree Nation, Lake Manitoba First Nation, Quebec Native Women Inc., Speaker of the Senate, David Asper Centre for Constitutional Rights, Canadian Civil Liberties Association, Canadian Constitution Foundation, Queen's Prison Law Clinic, John Howard Society of Canada, British Columbia Civil Liberties Association, West Coast Prison Justice Society and Speaker of the House of Commons — Interveners Indexed as: Canada (Attorney General) v. Power 2024 SCC 26 File No.: 40241. 2023: December 7; 2024: July 19. Present: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O'Bonsawin and Moreau JJ. on appeal from the court of appeal for new brunswick --- ## Headnote Constitutional law — Charter of Rights — Remedy — Damages — Legislation enacted by Parliament later found unconstitutional — Plaintiff commencing action against Crown for damages for breach of Charter rights caused by enactment of legislation — Whether damages against Crown can ever be appropriate remedy under Charter for enactment of legislation later declared unconstitutional — Canadian Charter of Rights and Freedoms, s. 24(1). In 1996, P was convicted of two indictable offences. He was sentenced and served his time. After his release, P applied for a record suspension but his application was denied. At the time of his conviction, persons convicted of indictable offences could apply for a record suspension five years after their release. However, the transitional provisions of legislation enacted since then by Parliament retroactively rendered him permanently ineligible for a record suspension. The transitional provisions were declared unconstitutional by courts in other matters and Canada concedes that their retrospective application violates s. 11(h) and (i) of the Charter in a manner that cannot be justified by s. 1. P filed a notice of action seeking, inter alia, damages under s. 24(1) of the Charter against Canada for the breach of his rights caused by the enactment of the transitional provisions. In response to P's action, Canada brought a motion on a question of law, asking two questions: 1. Can the Crown, in its executive capacity, be held liable in damages for government officials and Ministers preparing and drafting a proposed Bill that was later enacted by Parliament, and subsequently declared invalid by a court pursuant to s. 52(1) of the Constitution Act, 1982? 2. Can the Crown, in its executive capacity, be held liable in damages for Parliament enacting a Bill into law, which legislation was later declared invalid by a court pursuant to s. 52(1) of the Constitution Act, 1982? The motion judge answered "yes" to both questions, finding that the government was entitled to only a limited immunity from Charter damages for the enactment of unconstitutional legislation. The Court of Appeal dismissed Canada's appeal, agreeing with the motion judge that the government does not enjoy absolute immunity in exercising its legislative powers. Held (Kasirer and Jamal JJ. dissenting in part and Côté and Rowe JJ. dissenting): The appeal should be dismissed. Per Wagner C.J. and Karakatsanis J. (Martin, O'Bonsawin and Moreau JJ. concurring): The questions should both be answered in the affirmative. The state is not entitled to an absolute immunity from liability for damages when it enacts unconstitutional legislation that infringes Charter rights. Rather, as the Court held in *Mackin v. New Brunswick (Minister of Finance)*, 2002 SCC 13, [2002] 1 S.C.R. 405, the state may be liable for Charter damages if the legislation is clearly unconstitutional or was in bad faith or an abuse of power. An absolute immunity fails to properly reconcile the constitutional principles that protect legislative autonomy, such as parliamentary sovereignty and parliamentary privilege, and the principles that require the government be held accountable for infringing Charter rights, such as constitutionalism and the rule of law. Each of these principles constitutes an essential part of Canada's constitutional law and they must all be respected to achieve an appropriate separation of powers. By shielding the government from liability in even the most egregious circumstances, absolute immunity would subvert the principles that demand government accountability. First, limited immunity is consistent with parliamentary sovereignty. Parliamentary sovereignty does not mean Parliament is above the Constitution. By the text of s. 32(1), the Charter specifically applies to Parliament and the provincial legislatures. The supremacy of the Constitution in relation to Parliament is well recognized in each application of s. 52 of the Constitution Act, 1982. Limited immunity does not impair Parliament's power to make and repeal laws within the confines of the Constitution. Second, limited immunity is consistent with the separation of powers. The separation of powers does not mean that each branch works in isolation. The Court has never adopted a watertight system of separation but rather has always emphasized that each branch cannot exercise undue interference, which depends entirely on the circumstances and the constitutional principles engaged. Holding the legislature liable for Charter damages when it seriously misuses its legislative power does not constitute undue judicial interference in the legislative process. Rather, damages are an after‑the‑fact remedy for a Charter violation. However, respect for the legislative role requires a high threshold for liability for the enactment of unconstitutional legislation. Third, courts can respect parliamentary privilege when applying the limited immunity threshold. Parliamentary privilege provides the legislature with the tools to execute its core functions. It operates by shielding some areas of legislative activity from external review: for example, parliamentary privilege gives members of the legislature the freedom of speech necessary to carry out their law‑making power without fear of liability, and protects against the compellability of certain types of evidence, such as the testimony of sitting members of Parliament. The protection of these processes is fundamental to Canada's constitutional structure and the functioning of its democracy. Parliamentary privilege cannot be subordinated or diminished by other parts of the Constitution. But Charter damages for the enactment of unconstitutional legislation are not claimed against any individual members involved in the legislative process. The action is directly against the state. The basis for the state's liability for damages under s. 24(1) is the breach of the claimant's Charter right. The state's conduct within the legislative process is not an independent basis for liability but rather informs whether damages are an appropriate and just remedy for the breach caused by the enactment of the Charter‑infringing law. The state's liability for unconstitutional legislation does not engage members' personal immunity for parliamentary speech. Nor does it interfere with Parliament's power to control its own debates and proceedings, or dictate how the legislative function is exercised. Parliamentary privilege must not be extended beyond the scope necessary to protect the legislature's core democratic functions. However, parliamentary privilege may prevent claimants from adducing certain types of evidence relating to the legislative process and hence limit a claimant's practical ability to satisfy the threshold in a given case. But this possibility does not foreclose the availability of such a cause of action in principle. Fourth, an absolute immunity does not accommodate the principles recognized in the jurisprudence on constitutional remedies. It leaves little room for the principles that underpin legislative accountability — including the broad and purposive approach to rights and remedial provisions in the Charter, as well as constitutionalism and the rule of law. An absolute immunity would protect the government from any claim for damages for any unconstitutional legislation, no matter how egregious, and allow a narrow set of constitutional interests to dominate the analysis. A high bar for immunity, set by the Court in Mackin, has been good law for over two decades. It has resulted neither in chilling good governance, nor in a floodgate of claims against the state for damages. Although the Court may depart from precedent where there is a compelling reason to do so, there are no compelling reasons to overrule Mackin. The Mackin qualified immunity threshold is assessed at step three of the Ward framework and can be restated as follows: the good governance defence will prevail unless the law was clearly unconstitutional, in bad faith or an abuse of power. If the threshold is not met, the balance of constitutional principles tilts in favour of state immunity. In such cases, the constitutional imperative that the government be afforded the autonomy to govern effectively will defeat the claim to damages. Per Kasirer and Jamal JJ. (dissenting in part): The appeal should be allowed in part and the first question answered in the negative. The Crown enjoys an absolute immunity from damages under s. 24(1) of the Charter when preparing and drafting primary legislation later found to be unconstitutional. Such conduct is protected from judicial interference by established categories of parliamentary privilege, namely freedom of speech and control over parliamentary proceedings. The courts have no jurisdiction to review or assign liability for the exercise of these established categories of parliamentary privilege. The second question should be answered in the affirmative, but in a qualified manner: damages may only be available under s. 24(1) for harms flowing from "clearly unconstitutional" enactments. Mackin should be clarified to eliminate bad faith and abuse of power in enacting primary legislation as grounds for damages under s. 24(1) of the Charter, as they inevitably trench on established categories of parliamentary privilege. They would also strain the separation of powers by asking the courts to entertain non‑justiciable questions. The Crown may, however, be liable in damages under s. 24(1) for harms flowing from "clearly unconstitutional" enactments. The clearly unconstitutional threshold is a nuanced standard that appropriately protects the autonomy of Parliament and the limited immunity necessary for legislators to carry out their work, while employing a purposive approach to s. 24(1) remedies to vindicate Charter rights. Per Côté and Rowe JJ. (dissenting): The appeal should be allowed and both questions answered in the negative. The preparation, drafting, and enactment of legislation necessarily implicates parliamentary privilege, which is fundamentally at odds with awarding damages against the Crown in the manner sought. Both parliamentary privilege and the Charter constitute components of the Constitution of Canada. Neither one subordinates the other. The Charter must, as a matter of constitutional law, be given effect in a manner that is compatible with parliamentary privilege. Parliamentary privilege is rooted in the earliest chapters of Canada's constitutional history, and reflects an inherited legacy of struggle between the Crown and Parliament in the United Kingdom, one that reaches back to Parliament's origins. The Court has a responsibility to preserve the inheritance of Canada's constitutional order. It should not be discarded, and parliamentary privilege should not be subordinated to s. 24(1) of the Charter. To do so would be to depart from precedent and to do so unwisely. --- ## Counsel For the appellant: Sharlene Telles‑Langdon and Sarah Drodge, for the appellant. For the respondent: Louis‑Alexandre Hébert Gosselin and Lex Gill, for the respondent. For the interveners: Ravi Amarnath and S. Zachary Green, for the intervener the Attorney General of Ontario. François Hénault, for the intervener the Attorney General of Quebec. Samantha Parris and Edward A. Gores, K.C., for the intervener the Attorney General of Nova Scotia. Rose Campbell and Isabel Lavoie Daigle, K.C., for the intervener the Attorney General of New Brunswick. Charles Murray and Julie Winter, for the intervener the Attorney General of Manitoba. Nicholas Isaac, Emily Lapper and Steven Davis, for the intervener the Attorney General of British Columbia. Written submissions only by Meaghan Hughes and Nicole Sylvester, for the intervener the Attorney General of Prince Edward Island. Theodore J. C. Litowski, for the intervener the Attorney General of Saskatchewan. David Kamal, for the intervener the Attorney General of Alberta. Written submissions only by Justin S. C. Mellor, Mark P. Sheppard and Eugene H. Chao, for the intervener the Attorney General of Newfoundland and Labrador. Mohsen Seddigh, Adil Abdulla and Alyssa Cloutier, for the interveners the Fisher River Cree Nation, the Sioux Valley Dakota Nation, the Manto Sipi Cree Nation, and the Lake Manitoba First Nation. David Schulze and Sara Andrade, for the intervener Quebec Native Women Inc. Marc‑André Roy, Anne Burgess and Maxime Faille, for the intervener the Speaker of the Senate. Neil Abraham and Megan Stephens, for the intervener the David Asper Centre for Constitutional Rights. Andrew Lokan and Mariam Moktar, for the intervener the Canadian Civil Liberties Association. George Avraam, Jennifer Bernardo and Rono Khan, for the intervener the Canadian Constitution Foundation. Written submissions only by James Sayce, Vlad Calina and Caitlin Leach, for the intervener the Queen's Prison Law Clinic. Connor Bildfell and Simon Bouthillier, for the intervener the John Howard Society of Canada. Brodie Noga, Emily MacKinnon and Emily Wang, for the intervener the British Columbia Civil Liberties Association. Written submissions only by Alexa Biscaro and Sarah Ivany, for the intervener the West Coast Prison Justice Society. Alyssa Tomkins and John J. Wilson, for the intervener the Speaker of the House of Commons. --- ## Judgments Joint Reasons for Judgment (paras. 1 to 119): Wagner C.J. and Karakatsanis J. (Martin, O'Bonsawin and Moreau JJ. concurring) Reasons Dissenting in Part (paras. 120 to 253): Jamal J. (Kasirer J. concurring) Dissenting Reasons (paras. 254 to 383): Rowe J. (Côté J. concurring) Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports. --- ## The judgment of Wagner C.J. and Karakatsanis, Martin, O'Bonsawin and Moreau JJ. was delivered by The Chief Justice and Karakatsanis J. — ### I. Overview [ 1 ] It is a fundamental principle of our constitutional order that courts have a duty to protect the rights guaranteed by the Canadian Charter of Rights and Freedoms from infringement by the state. However, other foundational constitutional principles require that the state be afforded the legislative autonomy to govern effectively. At the heart of this appeal is a question about how to reconcile these principles in the context of s. 24(1) of the Charter, which authorizes courts to grant such remedies to individuals for the infringement of their Charter rights as is considered appropriate and just in the circumstances. [ 2 ] The facts as pleaded indicate that the respondent Joseph Power's Charter rights were violated when Parliament enacted legislation that retrospectively changed the availability of criminal record suspensions for certain offenders. These changes made Mr. Power permanently ineligible for a record suspension. As a result, he was unable to maintain his employment. The appellant Attorney General of Canada concedes that the retrospective application of the legislation violates s. 11(h) and (i) of the Charter in a manner that cannot be justified by s. 1 (A.R., at pp. 89 and 91). Mr. Power brings a claim against Canada for damages under s. 24(1). He asserts that the invalid law infringed his Charter rights, and that damages are an appropriate and just remedy for this infringement. Canada seeks to strike the claim in a preliminary application. [ 3 ] This appeal raises the question of whether damages can ever be an appropriate and just remedy under s. 24(1) of the Charter in respect of the enactment of legislation later declared unconstitutional. Canada submits that it enjoys absolute immunity from s. 24(1) damages for the enactment of unconstitutional legislation. It argues that the state cannot be held liable for anything done in the exercise of legislative power. [ 4 ] We disagree. The state is not entitled to an absolute immunity from liability for damages when it enacts unconstitutional legislation that infringes Charter rights. Rather, as this Court held in *Mackin v. New Brunswick (Minister of Finance)*, 2002 SCC 13, [2002] 1 S.C.R. 405, the state enjoys a limited immunity in the exercise of its law-making power. Accordingly, damages may be awarded under s. 24(1) for the enactment of legislation that breaches a Charter right. However, the defence of immunity will be available to the state unless it is established that the law was clearly unconstitutional, or that its enactment was in bad faith or an abuse of power. This is a high threshold. But it is not insurmountable. [ 5 ] An absolute immunity fails to properly reconcile the constitutional principles that protect legislative autonomy, such as parliamentary sovereignty and parliamentary privilege, and the principles that require the government be held accountable for infringing Charter rights, such as constitutionality and the rule of law. Each of these principles constitutes an essential part of our constitutional law and they must all be respected to achieve an appropriate separation of powers. By shielding the government from liability in even the most egregious circumstances, absolute immunity would subvert the principles that demand government accountability. The necessary reconciliation of these principles demands that we affirm the limited immunity threshold recognized in Mackin. [ 6 ] We would dismiss the appeal. --- ### II. Background [ 7 ] Mr. Power filed a notice of action at the Court of Queen's Bench of New Brunswick in 2018. He alleges that the transitional provisions contained in the Limiting Pardons for Serious Crimes Act, S.C. 2010, c. 5, s. 10, and the Safe Streets and Communities Act, S.C. 2012, c. 1, s. 161, are unconstitutional. He seeks a declaration of invalidity pursuant to s. 52 of the Constitution Act, 1982, and he also seeks damages under s. 24(1) against Canada for the breach of his rights caused by the enactment of the transitional provisions. He claims that the amending legislation was enacted in bad faith, abusively, and with knowledge of its unconstitutionality. [ 8 ] Mr. Power's statement of claim alleges the following facts. [ 9 ] In 1996, he was convicted of two indictable offences. He was sentenced to eight months' imprisonment. He served his time. After his release, he enrolled in college and graduated with an X-ray technician diploma. He became a medical radiation technologist in a hospital in New Brunswick. [ 10 ] In 2011, his employer received a tip that he had a criminal record and suspended him from his employment. He searched for a new job but found that his criminal record prevented him from working in his field. [ 11 ] In 2013, he applied for a record suspension. At the time of his conviction, persons convicted of indictable offences could apply for a record suspension five years after their release. However, the transitional provisions retroactively rendered him permanently ineligible for a record suspension. His application was denied. He has not since been able to find work in his profession in New Brunswick or Quebec. [ 12 ] The transitional provisions have since been declared unconstitutional by provincial and federal courts (Chu v. Canada (Attorney General), 2017 BCSC 630, 347 C.C.C. (3d) 449; Charron v. The Queen, Ont. S.C.J., No. 16-67821, June 14, 2017; Rajab v. The Queen, Ont. S.C.J., No. 16-67822, June 14, 2017; P.H. v. Canada (Attorney General), 2020 FC 393, [2020] 2 F.C.R. 461). These courts found that the transitional provisions unjustifiably violated s. 11(h) and (i) of the Charter because they retroactively increased an offender's punishment. [ 13 ] In response to Mr. Power's action, Canada brought a motion on a question of law to the Court of Queen's Bench. Canada concedes that the transitional provisions are unconstitutional, but maintains that there can be no liability for damages under s. 24(1) based on the enactment of unconstitutional legislation (as distinct from its implementation or enforcement) that is later deemed to violate Charter rights. --- ### III. Judicial History #### A. Court of Queen's Bench of New Brunswick, 2021 NBQB 107 (Dysart J.) [ 14 ] Canada asked the motion judge two questions: 1. Can the Crown, in its executive capacity, be held liable in damages for government officials and Ministers preparing and drafting a proposed Bill that was later enacted by Parliament, and subsequently declared invalid by a court pursuant to s. 52(1) of the Constitution Act, 1982? 2. Can the Crown, in its executive capacity, be held liable in damages for Parliament enacting a Bill into law, which legislation was later declared invalid by a court pursuant to s. 52(1) of the Constitution Act, 1982? [ 15 ] The motion judge recognized that these questions turned on the single issue of whether the state enjoys an absolute immunity in respect of the enactment of legislation. He found that the state did not. Accordingly, he answered "yes" to both questions. After reviewing this Court's jurisprudence, the motion judge found that the government was entitled to only a limited immunity from Charter damages for the enactment of unconstitutional legislation. The motion judge found that this Court set a high threshold for such liability in Mackin, and that subsequent cases had not displaced this threshold. #### B. Court of Appeal of New Brunswick, 2022 NBCA 14, 471 D.L.R. (4th) 68 (Richard C.J. and LaVigne and LeBlond JJ.A.) [ 16 ] The Court of Appeal dismissed Canada's appeal, agreeing with the motion judge that Mackin held that the government does not enjoy absolute immunity in exercising its legislative powers. In addition, the court rejected Canada's argument that various constitutional principles require a finding of absolute immunity. It explained that the separation of powers, parliamentary sovereignty, and parliamentary privilege are consistent with the high threshold recognized in Mackin. --- ### IV. Issue [ 17 ] This appeal raises a single issue: can damages ever be an appropriate and just remedy under s. 24(1) of the Charter for the enactment of legislation later declared unconstitutional? [ 18 ] The courts below and both of the parties before this Court framed the two motion questions as turning on this single issue. The parties have not asked us to consider the two questions under separate analyses. Nor have they submitted how we might address the questions differently. [ 19 ] As the motion judge recognized, the answer to the issue — "[i]n effect, is there absolute state immunity with respect to the legislative function?" — will determine the state's liability under s. 24(1) with respect to the passage of legislation (para. 22). In our view, the analysis of the single issue as framed above will answer both questions. [ 20 ] That said, the range of state actors and conduct set out in the first question is much broader than the second. The first question refers to "government officials and Ministers preparing and drafting a proposed Bill" that is later enacted and subsequently declared invalid by a court. But, as this Court has recognized, a Minister's legislative and executive powers can overlap and are sometimes difficult to disentangle in the law-making process (*Mikisew Cree First Nation v. Canada (Governor General in Council)*, 2018 SCC 40, [2018] 2 S.C.R. 765, at paras. 33 and 40). Moreover"government officials" can include public servants — acting in their capacity as part of the executive — engaged in policy development and advice to Ministers and Cabinet on the preparation of legislation. Given the broad and ambiguous scope of conduct implicated by this question, the extent of the state's immunity in "preparing and drafting a proposed Bill" should not be determined in the absence of any submissions on the point, especially where the question is one of absolute immunity. [ 21 ] Mr. Power's claim focuses squarely on Parliament's enactment of the unconstitutional legislation. There is no need in this case to define the exact limits as between the executive and parliamentary roles and conduct in the pre-enactment legislative process. [ 22 ] Thus, we approach the issue in this case as did the courts below and the parties in this Court. Both questions ask whether the state may be liable for Charter damages for the enactment of invalid legislation. Our answer that there is no absolute immunity applies to both question one and question two. --- ### V. Analysis [ 23 ] We begin our analysis by briefly setting out the constitutional provisions and constitutional principles engaged by this appeal. We then turn to how this Court has dealt with these principles in the context of s. 24(1), most notably in Mackin. Next, we explain why the high threshold established in Mackin should not be overturned. We conclude by clarifying this threshold. #### A. Constitutional Provisions and Principles [ 24 ] Canada and Mr. Power advance opposing views on how to interpret and apply s. 24(1) in the context of a claim for damages for unconstitutional legislation that violates a Charter right. Canada submits that important constitutional principles require an absolute immunity for such damages. Mr. Power submits that the government is only entitled to a limited immunity. ##### (1) Charter Interpretation [ 25 ] We start with the proper approach to Charter interpretation. [ 26 ] The Charter must be given a generous and expansive interpretation; not a narrow, technical or legalistic one (*Hunter v. Southam Inc.*, [1984] 2 S.C.R. 145, at p. 156). Charter provisions must be "interpreted in a broad and purposive manner and placed in their proper linguistic, philosophic, and historical contexts" (*Reference re Senate Reform*, 2014 SCC 32, [2014] 1 S.C.R. 704, at para. 25). [ 27 ] A purposive approach considers constitutional principles. Indeed"the Constitution must be interpreted with a view to discerning the structure of government that it seeks to implement. The assumptions that underlie the text and the manner in which the constitutional provisions are intended to interact with one another must inform our interpretation, understanding, and application of the text" (Reference re Senate Reform, at para. 26). ##### (2) Section 32(1): Application of the Charter [ 28 ] With this approach in mind, we turn to the applicability of the Charter to the legislative branch of government. [ 29 ] Section 32(1) of the Charter states that it applies to "the Parliament and government of Canada in respect of all matters within the authority of Parliament" and "to the legislature and government of each province in respect of all matters within the authority of the legislature of each province". [ 30 ] Clearly, the federal and provincial legislatures are subject to Charter scrutiny. As this Court has explained, the words of s. 32(1) express that "the Charter is essentially an instrument for checking the powers of government over the individual" (*McKinney v. University of Guelph*, [1990] 3 S.C.R. 229, at p. 261). The Charter "is intended to constrain governmental action inconsistent with those rights and freedoms" (Hunter, at p. 156). As explained further below, ss. 32(1) and 24 of the Charter, along with s. 52(1) of the Constitution Act, 1982, entrench the court's role in holding the government to account for Charter violations. ##### (3) Remedies for Breaches of Charter Rights [ 31 ] The Charter guarantees the rights and freedoms of all Canadians and provides remedies for their breach. Granting remedies is the courts' "most meaningful function under the Charter" (Nelles v. Ontario, [1989] 2 S.C.R. 170, at p. 196). [ 32 ] It is well accepted that the need for a purposive and generous approach to Charter interpretation "holds equally true for Charter remedies as for Charter rights" (*Doucet-Boudreau v. Nova Scotia (Minister of Education)*, 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 24). Courts have a duty to determine the appropriate constitutional remedy for a Charter violation and to ensure that the remedy is commensurate with the extent of the violation (Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203, at para. 46). This appeal is concerned with declarations of unconstitutionality under s. 52(1) of the Constitution Act, 1982 and damages under s. 24(1) of the Charter. [ 33 ] Section 52(1) provides that the "Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect". [ 34 ] A declaration of invalidity under s. 52(1) is the "first and most important remedy" when dealing with unconstitutional legislation (*Vancouver (City) v. Ward*, 2010 SCC 27, [2010] 2 S.C.R. 28, at para. 1). Section 52(1) establishes the supremacy of the Constitution and empowers courts to declare legislation "of no force or effect" in part or in full. This remedy allows courts to protect Charter rights while respecting the distinct role of the legislature in our constitutional order (*Schachter v. Canada*, [1992] 2 S.C.R. 679, at p. 715; *Ontario (Attorney General) v. G*, 2020 SCC 38, [2020] 3 S.C.R. 629, at paras. 84-99). [ 35 ] Section 24(1) provides that anyone whose Charter rights or freedoms have been infringed or denied may apply for "such remedy as the court considers appropriate and just in the circumstances". [ 36 ] Section 24(1) provides a "personal" or "individual" remedy in the sense that it is specific to the violation of the applicant's rights (*R. v. Albashir*, 2021 SCC 48, at para. 33; *R. v. Ferguson*, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 61). It must be remembered, however, that it is a "unique public law remedy" against the state that should not be assimilated to the principles of private law remedies (Ward, at paras. 22 and 31; Ravndahl v. Saskatchewan, [2009] 1 S.C.R. 181, at paras. 26-27). [ 37 ] Like other Charter provisions, s. 24(1) must be interpreted generously and purposively (Doucet-Boudreau, at para. 24). It must be construed "in a manner that best ensures the attainment of its objects" and, more generally, benefits from the principle of statutory interpretation that remedial statutes should receive a "large and liberal" interpretation (R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575 ("Dunedin"), at para. 18). [ 38 ] The remedial discretion afforded to courts under s. 24(1) is broad. This Court has stated that "the language of this provision appears to confer the widest possible discretion on a court to craft remedies for violations of Charter rights" (Dunedin, at para. 18), and that it "is difficult to imagine language which could give the court a wider and less fettered discretion" (Mills v. The Queen, [1986] 1 S.C.R. 863, at p. 965). [ 39 ] The broad discretion afforded under s. 24(1) and a purposive approach to remedies combine to give meaning to the idea that Charter rights are only as meaningful as the remedies provided for their breach. In this way, s. 24(1) is "a cornerstone upon which the rights and freedoms guaranteed by the Charter are founded, and a critical means by which they are realized and preserved" (Dunedin, at para. 20). [ 40 ] In Doucet-Boudreau, the Court noted that s. 24 must be allowed to evolve to meet the different contexts in which Charter violations occur, and must remain flexible and responsive to the needs of a given case (para. 59). In general terms, the Court explained that a just and appropriate remedy under s. 24(1) will: (1) meaningfully vindicate the claimant's rights and freedoms; (2) employ means that are legitimate within the framework of our constitutional democracy; (3) be a judicial remedy which vindicates the right while invoking the function and powers of a court; and (4) be fair to the party against whom the order is made (paras. 55-58). ##### (4) Damages as a Section 24(1) Remedy [ 41 ] An award of damages against the state for exceeding its legal powers has long been recognized as an important requirement of the rule of law (K. Roach, Constitutional Remedies in Canada (2nd ed. (loose-leaf)), at § 11:1, citing *Roncarelli v. Duplessis*, [1959] S.C.R. 121). [ 42 ] In Ward, this Court set out a four-step test for determining whether damages are an appropriate and just remedy: > (1) Has a Charter right been breached? (2) Would damages serve the functions of compensation, vindication or deterrence? (3) Would the state establish that good governance concerns render a damages award inappropriate or unjust? (4) Would damages be appropriate given the existence of other remedies? ##### (5) Constitutional Principles Engaged by This Appeal [ 44 ] Canada advances three constitutional principles in support of absolute immunity: parliamentary sovereignty, the separation of powers, and parliamentary privilege. Canada submits that these principles place the legislative function beyond the reach of s. 24(1) damages. [ 45 ] This Court has recognized that parliamentary sovereignty, the separation of powers, and parliamentary privilege are constitutional principles. However, these principles must be balanced against other constitutional principles. At their core, these constitutional principles reflect a concern for effective government and the distinct role of Parliament in our constitutional order. [ 46 ] Canada submits that the Charter cannot apply to the legislative function at all. We reject this submission. Section 32(1) of the Charter explicitly extends the Charter to Parliament and the provincial legislatures. The Charter applies to Parliament when it enacts legislation. [ 47 ] Parliamentary sovereignty is not the same thing in Canada as it is in the United Kingdom. In Canada, parliamentary sovereignty must be understood against the backdrop of our Constitution. Parliament can enact any law it wishes, within the confines of its constitutional authority. Parliament is sovereign, but it is not supreme. It is subject to the Constitution, which includes the Charter. Indeed, parliamentary sovereignty supports limited immunity, not absolute immunity. Parliament's power to legislate does not give it the unfettered power to legislate in ways that infringe Charter rights without consequence. [ 48 ] Parliamentary privilege plays an essential role in our democratic and constitutional order by allowing legislative officials to carry out their function, including vigorously debating laws and holding the executive to account (*Chagnon v. Syndicat de la fonction publique et parapublique du Québec*, 2018 SCC 39, [2018] 2 S.C.R. 687, at paras. 1 and 20-21; *New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly)*, [1993] 1 S.C.R. 319, at p. 354). [ 49 ] As for parliamentary sovereignty, there are important differences between the United Kingdom and Canada. In the United Kingdom, the "laws enacted by the Crown in Parliament are the supreme form of law" (Miller, at para. 41; see also *Reference re Pan-Canadian Securities Regulation*, 2018 SCC 48, [2018] 3 S.C.R. 189, at paras. 54-55). In Canada, it is the Constitution that is the supreme law: the legislature can "make or unmake any law it wishes, within the confines of its constitutional authority" (Mikisew, at para. 36 (emphasis added)). In other words, in Canada the principle of parliamentary sovereignty must not be confused with parliamentary supremacy (*Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island*, [1997] 3 S.C.R. 3, at paras. 308-9). [ 50 ] The separation of powers is part of the foundational architecture of our constitutional order. It is a constitutional principle which recognizes that the three branches of government have different functions, institutional capacities and expertise; and that each must refrain from undue interference with the others (Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455, at pp. 469-70; *British Columbia (Attorney General) v. Provincial Court Judges' Association of British Columbia*, 2020 SCC 20, [2020] 2 S.C.R. 506, at paras. 65-66). The separation of powers allows each branch to fulfill its distinct but complementary institutional role without undue interference and to create a system of checks and balances within our constitutional democracy (Ontario v. Criminal Lawyers' Association of Ontario, [2013] 3 S.C.R. 3, at para. 29). [ 51 ] Parliamentary privilege plays an essential role in our democratic and constitutional order by allowing legislative officials to carry out their function, including vigorously debating laws and holding the executive to account (Chagnon, at paras. 1 and 20-21; New Brunswick Broadcasting, at p. 354). [ 52 ] This Court has characterized parliamentary privilege as "the sum of the privileges, immunities and powers enjoyed by the Senate, the House of Commons and provincial legislative assemblies, and by each member individually, without which they could not discharge their functions" (*Canada (House of Commons) v. Vaid*, 2005 SCC 30, [2005] 1 S.C.R. 667, at para. 29). Courts cannot review conduct within an area of parliamentary privilege, even for compliance with the Charter (New Brunswick Broadcasting, at p. 384). The sphere of activity for which privilege is claimed must therefore be closely scrutinized, and it will only receive protection if it is closely and directly connected with the fulfillment by the assembly or by its members of their functions as a legislative and deliberative body (Chagnon, at para. 27; Vaid, at para. 46). ##### (b) Constitutionalism and the Rule of Law [ 53 ] Mr. Power submits that none of these principles are absolute and that none mandate absolute immunity. Rather, these principles must be reconciled with the role of courts as guardians of the Constitution, as reflected in the principles of the rule of law and constitutionality, both of which require courts to award meaningful and effective remedies for breaches of the Charter (*Reference re Secession of Quebec*, [1998] 2 S.C.R. 217, at para. 72; Doucet-Boudreau, at para. 25). [ 54 ] The rule of law is "a fundamental postulate of our constitutional structure" (Roncarelli, at p. 142) and is "clearly implicit in the very nature of a Constitution" (*Reference re Manitoba Language Rights*, [1985] 1 S.C.R. 721, at p. 750). It protects "individuals from arbitrary state action" by providing "that the law is supreme over the acts of both government and private persons" (Reference re Secession of Quebec, at paras. 70-71). [ 55 ] The Constitution is the supreme law of Canada. The principle of constitutionalism finds clear expression in s. 52(1) of the Constitution Act, 1982. Thus"with the adoption of the Charter, the Canadian system of government was transformed to a significant extent from a system of Parliamentary supremacy to one of constitutional supremacy" (Reference re Secession of Quebec, at para. 72). [ 56 ] These principles "lie at the root of our system of government" (Reference re Secession of Quebec, at para. 70). Together, they explain the duty that courts have "to act as vigilant guardians of constitutional rights and the rule of law" (Doucet-Boudreau, at para. 110). Thus, courts play a fundamental role in holding the executive and legislative branches of government to account in Canada's constitutional order. [ 57 ] We agree with Mr. Power that these constitutional principles must be respected in determining the judicial reach of meaningful remedies for breaches of the Charter. Together, they inform the appropriate balance underlying the extent of immunity for the enactment of unconstitutional legislation. --- #### B. This Court Has Recognized a Limited Immunity for the Enactment of Unconstitutional Legislation [ 58 ] We now turn to how this Court's jurisprudence has addressed these constitutional principles in the context of state immunity for Charter damages. Mr. Power argues that Mackin directly dealt with the question in this appeal. He submits that Mackin rejected an absolute immunity and that we are bound to do the same here. Canada, however, argues that Mackin is not authoritative on this question and, in any case, subsequent cases have displaced the limited immunity established in Mackin. ##### (1) Mackin Set a High Threshold for Damages [ 59 ] We agree with Mr. Power and the courts below that in Mackin, this Court considered precisely the same issue: the availability of Charter damages for the enactment of Charter-infringing unconstitutional legislation. [ 60 ] The applicants in Mackin were two provincial court judges. They challenged a provincial statute that eliminated the system of supernumerary judges in favour of a panel of retired judges paid on a per diem basis. They claimed that the statute violated the right to judicial independence enshrined in s. 11(d) of the Charter and sought s. 24(1) damages and s. 52(1) declaratory relief. [ 61 ] The Court agreed with the judges that the legislation was unconstitutional and declared it to be of no force or effect. Turning to the claim for damages, Gonthier J. explained that while legislative bodies enjoy immunity from damages for the "mere enactment or application of a law that is subsequently declared to be unconstitutional" (para. 78 (emphasis added)), such immunity will give way to liability when the law was "clearly wrong, in bad faith or an abuse of power" (para. 79 (emphasis added)). He concluded that damages were not justified in that case because there was no evidence to suggest that this threshold was satisfied (para. 82). [ 62 ] In our view, the following three points can be distilled from Mackin. [ 63 ] First, Mackin concerned only the enactment of legislation. The state's actions under the law was not at issue: it was the legislation itself that abolished the supernumerary judicial status, thereby depriving the judges of their status and income — and thus, their independence. Accordingly, we do not accept Canada's argument that Mackin never contemplated a claim for damages against the state for the enactment of unconstitutional legislation. The Mackin principle of limited immunity was plainly set out in the context of the "enactment" of law, and as applying to "legislative bodies" (para. 78). [ 64 ] Second, the Court did not deny the judges' claim because the state enjoyed an absolute immunity for the enactment of legislation, but because the threshold was not satisfied. Gonthier J. found that there was no evidence to suggest the government of New Brunswick acted in bad faith or abused its power. He explained that the government could not have known of later developments in the law concerning judicial independence at the time the statute was enacted. In reaching this conclusion, Gonthier J. looked to the state's motives, knowledge and conduct during the legislative process. He found the state had a "perfectly legitimate purpose" when it passed the invalid law: "efficiency, flexibility and cost savings" (para. 70). He also found that there was no evidence the state acted with "wilful blindness with respect to its constitutional obligations" (para. 82), nor that the state enacted the law with "knowledge" of its unconstitutionality, nor for an "ulterior motiv[e]" (para. 83). [ 65 ] Third, the threshold for liability established in Mackin was expressly designed to reconcile competing constitutional principles. Gonthier J. explained that the "limited immunity given to government is specifically a means of creating a balance between the protection of constitutional rights and the need for effective government" (para. 79). To award damages merely because legislation was unconstitutional would fail to strike the right balance because it would not give effect to the need for effective government. Yet, at the same time, he recognized that "the government and its representatives are required to exercise their powers in good faith and to respect the 'established and indisputable' laws that define the constitutional rights of individuals" (ibid.). [ 66 ] For these reasons, Gonthier J. held that the "clearly wrong, in bad faith or an abuse of power" threshold provides the appropriate qualification on the state's liability for the enactment of an unconstitutional law. ##### (2) The Mackin Threshold Has Not Been Overruled by Subsequent Cases [ 67 ] Canada further argues that if Mackin established a limited immunity, this Court has overruled that immunity in subsequent cases. [ 68 ] We do not agree. Rather, we agree with Mr. Power and the courts below that the post-Mackin jurisprudence does not depart from the limited immunity threshold. [ 69 ] The first category of cases said to have overruled Mackin are those Canada says demonstrate that the limited immunity threshold in Mackin has been restricted in application to situations of executive action, such that it no longer applies in the realm of legislative power. We reject this argument. [ 70 ] True, some of this Court's cases have referred to the threshold applying to executive conduct under the law. For example, in Ward, McLachlin C.J. referred to Mackin as applying to "state conduct under the law" (para. 39). And in *Henry v. British Columbia (Attorney General)*, 2015 SCC 24, [2015] 2 S.C.R. 214, Moldaver J. referred to it as applying to "state action taken pursuant to a law" (para. 42). But those cases involved such executive conduct. There is no inconsistency here. As explained above, Gonthier J. said in Mackin that the threshold applied to the "enactment or application" of legislation later declared unconstitutional (para. 78 (emphasis added)). Indeed, the Mackin threshold was described in general terms in Ward as recognizing "that the state must be afforded some immunity from liability in damages resulting from the conduct of certain functions that only the state can perform. Legislative and policy-making functions are one such area of state activity" (para. 40 (emphasis added)). [ 71 ] Similarly, in *Conseil scolaire francophone de la Colombie-Britannique v. British Columbia*, 2020 SCC 13, [2020] 1 S.C.R. 678, this Court considered a different type of situation again: whether the Mackin threshold applied to government decisions made under government policies. Canada points out that at one point the Mackin threshold is described as applying to "acts carried out pursuant to a law that is subsequently declared to be invalid" (para. 168). But, at another point, the threshold is described as applying to "those who make laws" or "the legislature" (ibid.). Both are consistent with Mackin, and the Court was unanimous on this point. Although dissenting in the result, Brown and Rowe JJ. noted that "a key holding" in Mackin was its broad formulation of the immunity threshold and that it "plainly encompasses acts of both the legislatures and other public officials" (paras. 286-87 (emphasis deleted)). [ 72 ] Canada also argues that the principles set down in Mikisew overrule Mackin. We do not agree. Canada is right that Mikisew says that courts should not meddle with the law-making process, including in the enactment of legislation. However, Mikisew is readily distinguishable. This appeal concerns remedies for an invalid law that breaches Charter rights. Mikisew concerned whether to impose a procedural step in the form of a duty to consult under s. 35 of the Constitution Act, 1982 within the legislative process (paras. 31 and 52). And, while the majority in Mikisew accepted that it is "rarely appropriate for courts to scrutinize the law-making process" (para. 2), and that the judiciary "should forebear from intervening" in this process (para. 32), it also noted that after-the-fact review remains available in some circumstances (para. 52). [ 73 ] A Charter damages analysis under s. 24(1) is conceptually distinct from the recognition of a duty to consult. As the motion judge and the Court of Appeal in this case explained, there is an important difference between, on the one hand, courts requiring the legislature to implement a substantive step within the legislative process, such as the pre-enactment consultations contemplated in Mikisew, and on the other, courts enforcing the Charter by requiring the state to pay damages for a Charter violation, even when that violation results from an unconstitutional law (motion judge's reasons, at paras. 54-55; C.A. reasons, at para. 23). Compelling the government to consult as part of the legislative process would be a clear interference with Parliament's exclusive control over its own procedures. By contrast, post-enactment damages do not "unduly interfer[e]" with Parliament, including its control over its own procedures (Mikisew, at para. 35, citing Criminal Lawyers' Association, at para. 29). Such damages do not compel the legislature to regulate its own internal affairs in a certain way. Mikisew does not determine the outcome of this appeal. [ 74 ] Finally, Canada raises *Ernst v. Alberta Energy Regulator*, 2017 SCC 1, [2017] 1 S.C.R. 3, as an example of the approach the Court should take in this case. In Ernst, this Court held that an administrative board, in exercising its adjudicative function, is immune from liability for damages. Ernst is of limited assistance to this appeal. Although Ernst engaged some of the same constitutional principles at work in this case, it did so in a different context. Ernst was concerned with protecting a different state function and implicated a different balance of underlying constitutional principles. An assessment into immunity must focus on the branches of government implicated by the claim (K. Cooper-Stephenson, Charter Damages Claims (1990), at p. 316). It is not surprising that a different form of state action raised different concerns about constitutional design and institutional relationships. Nothing in Ernst suggests a retreat from Mackin. [ 75 ] Accordingly, we cannot accept Canada's submission that the Mackin threshold has been overruled. #### C. Mackin Should Not Be Overruled [ 76 ] Canada's final argument is that if this Court has not overruled Mackin already, it should do so now. Canada submits that the constitutional principles underpinning legislative autonomy and good governance require absolute immunity for the enactment of legislation subsequently declared unconstitutional. Mr. Power responds that an absolute immunity would be inconsistent with the other fundamental constitutional principles engaged by the state's law-making function. [ 77 ] We agree with Mr. Power. Canada has not provided a compelling reason to overrule a precedent of this Court. Accordingly, we would not overturn Mackin. Limited immunity respects the constitutional principles underpinning both legislative autonomy and accountability. As this Court has said before, effective government and respect for constitutional rights are both "important pillars of our democracy" (Ernst, at para. 25). In order to fulfill its institutional function, the legislative branch requires an independent space for elected representatives to carry out their parliamentary duties, to freely debate and decide what laws should govern, and to exercise the unfettered ability to hold the executive branch of the state to account. But absolute immunity would subvert the principles that command government compliance with the Charter and the courts' role in enforcing its fundamental guarantees. ##### (1) Limited Immunity Respects All of the Constitutional Principles [ 78 ] As McLachlin J., as she then was, explained in *Harvey v. New Brunswick (Attorney General)*, [1996] 2 S.C.R. 876"[w]here apparent conflicts between different constitutional principles arise, the proper approach is not to resolve the conflict by subordinating one principle to the other, but rather to attempt to reconcile them" (para. 69). And as Mr. Power notes, our Court's jurisprudence demonstrates "that there is no one constitutional principle that dominates the remedial analysis" (R.F., at para. 76, citing G, at paras. 89-99, *R. v. Sullivan*, 2022 SCC 19, at para. 60, and Albashir, at para. 34). [ 79 ] Our constitutional jurisprudence has not created hierarchies of constitutional principles. It has aimed to provide flexibility and accommodation in the pursuit of good governance and fundamental rights. This is especially important in an era of increased transparency and accountability. Our constitutional remedies must reflect the interdependency of principles, and balance the need for both government autonomy and accountability. [ 80 ] As we will explain, the Mackin threshold is consistent with and best reconciles each of the constitutional principles engaged by this appeal. [ 81 ] First, parliamentary sovereignty is not undermined by the Mackin threshold. As noted above, parliamentary sovereignty does not mean that Parliament is above the Constitution. Parliament remains subject to the constraints and accountability mechanisms of the Constitution, including the Charter. By the text of s. 32(1), the Charter specifically applies to Parliament and the provincial legislatures. The supremacy of the Constitution in relation to Parliament is well recognized in each application of s. 52 of the Constitution Act, 1982. Limited immunity does not impair Parliament's power to make and repeal laws within the confines of the Constitution. [ 82 ] Second, limited immunity is consistent with the separation of powers. The separation of powers does not mean that each branch is completely "separate" or works in isolation. The separation of powers in Canada is not strict (Reference re Secession of Quebec, at para. 15; Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854, at para. 10). We have "never adopted a watertight system of separation of judicial, legislative and executive functions" (Doucet-Boudreau, at para. 107). Rather, our Court has always emphasized that each branch cannot exercise "undue" interference, which depends entirely on the circumstances and the constitutional principles engaged. The availability of an after-the-fact judicial remedy for unconstitutional legislation does not interfere with the law-making process. However, respect for the legislative role requires a high threshold for liability for the enactment of unconstitutional legislation. The high bar for liability established in Mackin ensures that the judiciary does not unduly interfere with the government's ability to carry out its legislative function. Absolute immunity would give insufficient respect to the judicial role to provide meaningful remedies for the breach of constitutional rights. [ 83 ] Like parliamentary privilege, discussed below, the separation of powers supports the need for some immunity, but not absolute immunity. Holding the legislature liable for Charter damages when it seriously misuses its legislative power does not constitute undue judicial interference in the legislative process. Rather, damages are an after-the-fact remedy for a Charter violation. Insofar as an award of damages provides any guidance to the legislature at all, it merely says that "the government and its representatives are required to exercise their powers in good faith and to respect the 'established and indisputable' laws that define the constitutional rights of individuals" (Mackin, at para. 79). While the separation of powers demands a core of legislative autonomy, it also demands legislative accountability through the role of the courts. [ 84 ] Third, courts can respect parliamentary privilege when applying the limited immunity threshold. Parliamentary privilege provides the legislature with the tools to execute its core functions. It operates by "shielding some areas of legislative activity from external review" (Chagnon, at para. 1). For example, it shields against legal proceedings for what was said during debate, giving members of the legislature the freedom of speech necessary to carry out their law-making power without fear of liability. Parliamentary privilege also protects against the compellability of certain types of evidence, discussed below, such as the testimony of sitting members of Parliament (Vaid, at para. 29). The protection of these processes is fundamental to Canada's constitutional structure and the functioning of our democracy. Parliamentary privilege cannot be subordinated or diminished by other parts of the Constitution. [ 85 ] But Charter damages for the enactment of unconstitutional legislation are not claimed against any individual members involved in the legislative process. The action is against the state. An action for public law damages "is not a private law action in the nature of a tort claim for which the state is vicariously liable but [a distinct] public law action directly against the state for which the state is primarily liable" (Ward, at para. 22). The nature of the remedy requires "the state (or society writ large) to compensate an individual for breaches of the individual's constitutional rights" (Ward, at para. 22). For these reasons, the Attorney General for the Crown or a government agency is the appropriate defendant in Charter damages claims. [ 86 ] It is also worth emphasizing that the basis for the state's liability for damages under s. 24(1) is the breach of the claimant's Charter right. The state's conduct within the legislative process is not an independent basis for liability but rather informs whether damages are an appropriate and just remedy for the breach caused by the enactment of the Charter-infringing law. Mr. Power's action does not engage members' personal immunity for parliamentary speech. Nor does it interfere with Parliament's power to control its own debates and proceedings, or dictate how the legislative function is exercised. Mr. Power does not suggest that parliamentary speech or anything done in the legislative process breached his Charter rights. [ 87 ] We reject Canada's suggestion that recognized categories of parliamentary privilege extend to bar external review of every stage in the law-making process, and of all speech and all conduct by government officials or Ministers related to the law-making process, including their unspoken motivations. Courts must be careful to avoid enlarging recognized categories of privilege in response to broad or vague assertions of privilege, especially in the context of an alleged Charter rights violation. [ 88 ] This Court has emphasized that parliamentary privilege must not be extended beyond the scope necessary to protect the legislature's core democratic functions (Chagnon, at para. 25; Vaid, at para. 41). In both Vaid and Chagnon, this Court rejected claims of parliamentary privilege, recognizing that the scope of each category of privilege must be carefully scrutinized, in part on the basis that the matters protected by the claimed privilege cannot be externally reviewed, including by courts on Charter grounds. In Vaid, this Court held that the parliamentary privilege to control parliamentary proceedings did not extend so far as to preclude a human rights claim on the basis of discrimination by the chauffeur to the Speaker of the House of Commons. In Chagnon, this Court held that the parliamentary privilege to either manage employees or to exclude strangers from the National Assembly does not prevent judicial review of the dismissal of security guards employed by the National Assembly. Because of its inherent nature, parliamentary privilege means that its existence and scope must be strictly anchored to its rationale, delimited by the purposes it serves. Such an approach helps to reconcile the privilege with the Charter, by ensuring that it is only as broad as is necessary for the proper function of a constitutional democracy. [ 89 ] A limited immunity reconciles the importance of parliamentary privilege with the Charter by ensuring that the privilege is no broader than is justified for a functioning constitutional democracy. In this respect, we agree that "parliamentary privilege, like parliamentary institutions themselves, must operate within — and never trump — the constitutional framework from which those bodies have emerged, and upon which they depend for their lawful authority and powers. In a country respectful of the rule of law, the courts must continue to maintain the supremacy of constitutional norms" (W. J. Newman"Parliamentary Privilege, the Canadian Constitution and the Courts" (2008), 39 Ottawa L. Rev. 573, at p. 609). [ 90 ] We also note that this Court has made clear that privilege claims should not be adjudicated "at too high a level of generality" (Vaid, at para. 51). As Mr. Power submits"[i]ssues regarding the admissibility of parliamentary statements cannot be decided in the abstract" (R.F., heading of para. 94). An assertion of privilege must be particularized in the circumstances of the claim. [ 91 ] To be clear though, parliamentary privilege may prevent claimants from adducing certain types of evidence relating to the legislative process. In this way, parliamentary privilege may limit a claimant's practical ability to satisfy the threshold in a given case. Indeed, it may well be that a claimant will not be able to lead any evidence. But this possibility does not foreclose the availability of such a cause of action in principle. While a claimant obviously cannot, for example, subpoena members of Parliament to establish a claim for damages, the claimant could lead other evidence related to the parliamentary process and relevant to the claim. There are many kinds of legislative documents routinely relied upon by courts in the context of public law litigation. For example, in *Brazeau v. Canada (Attorney General)*, 2020 ONCA 184, Sharpe and Juriansz JJ.A. relied on government memoranda and reports, public records and social science and expert reports in assessing a s. 24(1) claim for damages (paras. 74-86). Thus, while it is beyond question that the conduct and speech protected by parliamentary privilege is not subject to review under the Charter by the judiciary (New Brunswick Broadcasting, at p. 384), we do not agree that parliamentary privilege inherently precludes Charter damages for unconstitutional legislation. [ 92 ] It does not improperly undermine parliamentary privilege for the courts, engaged in a proper judicial task, to examine evidence and adjudicate an assertion of privilege in the context of a claim for damages. Courts regularly assess such evidence, including Hansard, in determining the background and purpose of legislation under a s. 1 analysis (see, e.g., *R. v. Big M Drug Mart Ltd.*, [1985] 1 S.C.R. 295; R. v. Morgentaler, [1993] 3 S.C.R. 463, at p. 484; R. v. Moriarity, [2015] 3 S.C.R. 485, at para. 31; *R. v. Sharma*, 2022 SCC 39, at paras. 88-90). Indeed, this Court has in other contexts assessed whether the legislature acted in good faith in enacting a law, or whether the state had actual or constructive knowledge of the unconstitutional effects of a law (*Canadian Council for Refugees v. Canada (Citizenship and Immigration)*, 2023 SCC 17, at para. 114). Granted, the purpose of the review may be different in a claim for Charter damages. But these examples reveal that the judicial assessment of the nature of legislation and Parliament's purpose or objective in enacting it can be accomplished without violating parliamentary privilege. [ 93 ] Fourth, an absolute immunity does not accommodate the principles recognized in this Court's jurisprudence on constitutional remedies. It leaves little room for the principles that underpin legislative accountability — including the broad and purposive approach to rights and remedial provisions in the Charter, as well as constitutionalism and the rule of law. All these principles militate against absolute immunity. We agree in this respect with Mr. Power, who submits that "[a]n absolute immunity is . . . incompatible with the remedial discretion of the courts — 'a fundamental feature of the Charter' — and with the idea that 'flexibility is necessary to arrive at appropriate remedies involving legislation'" (R.F., at para. 81, citing G, at paras. 101 and 146). [ 94 ] As discussed above, the Charter effected a "revolutionary transformation of the Canadian polity" under which courts were "mandated to bring the entire legal system into conformity with a complex new structure of rights-protection." Even before the Charter, the court's role in holding the legislature accountable was recognized as part of the fabric of Canada's constitutional order. As Dickson J. (as he then was) explained in *Amax Potash Ltd. v. Government of Saskatchewan*, [1977] 2 S.C.R. 576, at p. 590: > A state, it is said, is sovereign and it is not for the Courts to pass upon the policy or wisdom of legislative will. As a broad statement of principle that is undoubtedly correct, but the general principle must yield to the requisites of the constitution in a federal state. By it the bounds of sovereignty are defined and supremacy circumscribed. The Courts will not question the wisdom of enactments which, by the terms of the Canadian Constitution are within the competence of the Legislatures, but it is the high duty of this Court to insure that the Legislatures do not transgress the limits of their constitutional mandate and engage in the illegal exercise of power. [Emphasis added.] [ 95 ] The Charter demands that legislative power be constrained by constitutional rights. Courts are constitutionally obliged to hold the government accountable when it breaches such rights, including by providing meaningful remedies in the face of their violation. An absolute immunity would undermine the purpose and text of s. 24(1), which asks courts to look at the specific context of a given violation to determine whether a remedy is appropriate and just. The Charter requires courts to enforce constitutional rights. Enforcement means ensuring that remedies are commensurate with the extent of the violation (Corbiere, at para. 46). In this way, the separation of powers also protects the judiciary's independence to carry out its constitutional duties: "Nothing less [is] required to maintain the normative ordering of the Canadian legal system" (Doucet-Boudreau, at para. 109). [ 96 ] An absolute immunity would protect the government from any claim for damages for any unconstitutional legislation, no matter how egregious. We accept Mr. Power's assertion that an absolute immunity allows a narrow set of constitutional interests to dominate the analysis (R.F., at para. 81). [ 97 ] In setting a high bar for immunity, Mackin has stood the test of time. It has been good law for over two decades. It has resulted neither in chilling good governance, nor in a floodgate of claims against the state for damages. The state will continue to benefit from immunity unless the high threshold is satisfied. This exacting threshold functions to limit the scope of causes of action for damages. And, as always, the state can apply for a s. 24(1) claim to be dismissed summarily if the claimant fails to plead circumstances which could, if accepted, satisfy the Mackin threshold for liability (Henry (2015), at para. 43). [ 98 ] This Court may depart from precedent where there is a compelling reason to do so, including if the precedent was inconsistent with a binding authority or statute, it has proven unworkable, or its rationale has been eroded by significant social or legal change (*R. v. Henry*, 2005 SCC 76, [2005] 3 S.C.R. 609, at para. 44; *R. v. Kirkpatrick*, 2022 SCC 33, at para. 202). There are no compelling reasons to overrule Mackin. The state's immunity has been and remains qualified. ##### (2) Clarifying the Mackin Threshold [ 99 ] The question remains how to best articulate the qualified immunity threshold. The parties and interveners point to a number of different descriptions within Mackin and ask us to clarify the threshold. [ 100 ] In Mackin, Gonthier J. used several formulations to describe the circumstances in which damages may be an appropriate and just remedy for legislation later declared unconstitutional. Gonthier J. initially sets out the threshold as capturing state conduct that was "clearly wrong, in bad faith or an abuse of power" (paras. 78‑79). Later, in applying the threshold, he looked to whether the state enacted the unconstitutional law "negligently", or with "wilful blindness with respect to its constitutional obligations at that time" (para. 82). He concluded there was no evidence "the legislation was enacted wrongly, for ulterior motives or with knowledge of its unconstitutionality" (para. 83). [ 101 ] These different formulations reflect different lines of inquiry aimed at assessing the context of the enactment of the Charter-infringing law in that case. Gonthier J. focused on the state of the law at the time of enactment, and on any evidence of the state's motives, conduct, and knowledge in relation to its unconstitutionality. [ 102 ] Gonthier J.'s various formulations, with the exception of negligence, describe instances in which the enactment would have been clearly wrong, in bad faith or an abuse of power. In our view, however, negligence does not connote the gravity of misconduct this threshold was designed to capture. While Gonthier J.'s statements indicate that there was no evidence that would meet even this lower standard in that case, in our view, the use of the term negligence was not intended to lower the general threshold. It does not form part of the threshold. The concept of "negligence" is unhelpful as it does not reflect the high standard demanded by the constitutional principles underlying the analysis. [ 103 ] Nonetheless, an objective assessment of the unconstitutionality of the legislation can assist in identifying whether the threshold is met, provided the standard remains high. Indeed, like negligence, the French translation in Mackin of "clearly wrong" — "clairement fautif" — signals such an objective standard. A number of interveners favoured a threshold that focussed on an objective review of the legislation under the "clearly wrong" component of the threshold. Other interveners point out that the concept of "wrongfulness" has led to some confusion. We would clarify that this inquiry is better understood as a focus on whether the legislation is "clearly unconstitutional", which directs a judge to look objectively at the legislation itself, particularly the nature and extent of its constitutional invalidity. Underlying this objective assessment is a presumption of the legislature's knowledge of and respect for basic Charter rights. [ 104 ] However, we would reject any of the formulations suggested by the interveners that would set the threshold so high that it immunizes the government from liability for unprecedented but egregious constitutional breaches. Thus, the threshold will be met where the legislation was "clearly unconstitutional" in the sense that, at the time of its enactment, it would clearly violate Charter rights. Such egregious or obvious violations of Charter rights are clearly wrong. We would not set the test as high as Jamal J.'s proposed articulation of the clearly unconstitutional threshold. [ 105 ] A finding of clear unconstitutionality will usually imply that the state either knew that the law was clearly unconstitutional, or was reckless or wilfully blind as to its unconstitutionality. As Sharpe and Juriansz JJ.A. helpfully explained in Brazeau, where the law is clearly unconstitutional, the state may have shown a "'clear disregard' for Charter rights" by "proceeding with a course of action in the face of a known risk that the Charter will be violated or by deliberately failing to inquire about the likelihood of a Charter breach when the state knows that there is a good reason to inquire" (para. 87, citing Ward, at para. 43). [ 106 ] While the clearly unconstitutional standard will likely resolve most issues of whether the limited immunity applies, other rare situations may require judges to ask whether there is evidence that the state acted in bad faith or abused its power in enacting the invalid law. Principles of constitutionalism and legality require that the threshold leaves room for meaningful recourse for breach of constitutional rights involving such intentional state misconduct. [ 107 ] We would not attempt to define bad faith or abuse of power in the law‑making process with exactitude without the benefit of a full record and submissions. This standard may, for example, be met in cases where the state acted for an improper purpose, or was dishonest. We would not, however, limit the concepts of bad faith and abuse of power to an examination of the legislation's purpose. [ 108 ] When it comes time to assess an allegation of bad faith or abuse of power on the basis of specific facts, other contexts of bad faith and abuse of power may provide guidance (see, e.g., Roncarelli, at p. 141; *Finney v. Barreau du Québec*, 2004 SCC 36, [2004] 2 S.C.R. 17, at para. 39; *Hinse v. Canada (Attorney General)*, 2015 SCC 35, [2015] 2 S.C.R. 621, at paras. 48-53). However, we note that these concepts are "flexible" and their "content will vary from one area of law to another" (*Entreprises Sibeca Inc. v. Frelighsburg (Municipality)*, 2004 SCC 61, [2004] 3 S.C.R. 304, at para. 25). In the context of the state's law-making function, in which Parliament and legislative bodies are entitled to enact any law within their constitutional confines, bad faith and abuse of power may require a higher degree of misconduct than in other contexts. These are legal standards applied by courts, they are not means of evaluating the wisdom or policy of the enactment process or the enacted law. [ 109 ] Our colleague Jamal J. accepts the clearly unconstitutional standard but rejects bad faith and abuse of power. He reasons that while clearly unconstitutional is an objective standard, based on the enactment of the legislation, bad faith and abuse of power inherently implicate conduct that is beyond judicial review. We disagree. In our view, bad faith or abuse of power could be satisfied without violating parliamentary privilege. Moreover, like bad faith and abuse of power, the clearly unconstitutional standard implicates Parliament's conduct in enacting legislation. As we explained, a finding of clear unconstitutionality amounts to a conclusion that in "enacting" the legislation, lawmakers knew the law was unconstitutional, or were reckless or wilfully blind as to its unconstitutionality. Changing the verb "enacting" to the noun "enactment" does not change the nature of the inquiry. [ 110 ] We appreciate that discerning institutional motivation or the knowledge of legislative bodies when enacting legislation is a difficult task. We further appreciate that although Charter damages lie against the state and not individual lawmakers or government officials, the state acts through the vehicle of individuals. As with other contexts of institutional state conduct, whether it is possible to attribute the bad faith or abuse of power of an individual or group to the institution itself will depend on the facts of a given case. It bears repeating here that the basis for liability under s. 24(1) is the state's breach of a Charter right. In cases like Mr. Power's claim, it is the invalid law that breached his right. Any inquiry into state misconduct in enacting the invalid law is to assess whether damages are just and appropriate for that breach, not to create an independent basis for liability. [ 111 ] Where the claimant puts forward a particularized allegation that the Mackin threshold has been met, the claim must be assessed on the basis of evidence obtained in a way that does not violate parliamentary privilege, such as statements made outside of the parliamentary process. [ 112 ] Thus, we would clarify that "clearly wrong" reflects an objective assessment into whether the legislation was clearly unconstitutional at the time it was enacted, and that bad faith and abuse of power remain part of the threshold. To that extent we would restate the Mackin threshold relating to the enactment of legislation later found to be unconstitutional: the good governance defence will prevail unless the law was clearly unconstitutional, in bad faith or an abuse of power. The exacting nature of the threshold means that an applicant's failure to provide detailed particulars will be fatal to their claim at the pleadings stage (Henry (2015), at para. 43). Bald or vague assertions will necessarily fall short. ##### (3) The Threshold Is Assessed at Step Three of the Ward Framework [ 113 ] Canada submits that the immunity threshold should be a preliminary matter, before engaging with the Ward framework. In the alternative, it submits that the threshold can operate within the third step of the Ward test. Mr. Power asserts that the countervailing considerations raised by Canada in this appeal should be considered and balanced at the third step of the Ward test. [ 114 ] In our view, the four-part test in Ward governs all claims for Charter damages. Immunity is not a preliminary question in a claim for Charter damages based on invalid legislation. The state's limited immunity defence fits best as a consideration at the third step of the Ward test. In order for an inquiry into the state's limited immunity to arise under s. 24(1), a claimant must first demonstrate that their rights were violated as a result of an unconstitutional law, and that damages are an otherwise appropriate and just remedy for that violation (Ward, at paras. 23-24). This Court and others have recognized that the Mackin threshold and other immunity considerations are an expression of the principles underlying the good governance concerns considered at the third stage of Ward (Ward, at paras. 39 and 68; Ernst, at para. 42; Brazeau, at paras. 46-48). [ 115 ] Limited immunity ends at the point where it no longer strikes a justifiable constitutional balance. If the state enacts legislation that is subsequently declared invalid and that is clearly unconstitutional, in bad faith or in an abuse of power, good governance concerns can no longer justify shielding the government from liability for violating Charter rights. Damages may instead "promote good governance" by supporting the "foundational principle of good governance" that state action must comply with the Constitution (Ward, at para. 38). If the Mackin threshold is not met, the balance of constitutional principles tilts in favour of state immunity. In such cases, the constitutional imperative that the government be afforded the autonomy to govern effectively will defeat the claim to damages. --- ### VI. Conclusion [ 116 ] State immunity for the exercise of legislative power remains limited. There is no absolute immunity for the enactment of legislation later found to be unconstitutional. This conclusion answers both of the constitutional questions posed by Canada. In reaching this conclusion, we have explained that the state may be liable for Charter damages for enacting invalid legislation only if it is clearly unconstitutional or was in bad faith or an abuse of power. Because the first question implicates a broader range of state conduct and actors than the second question — indeed it implicates matters far beyond those raised by Mr. Power's claim — the answer must be the same. [ 117 ] To approach the first question separately in this case would have raised issues of the accountability of public servants who form part of the executive. Parliamentary privilege attaches to Parliament as a separate branch of government and shields certain spheres of parliamentary activity from judicial review. If the conduct of public servants related to the preparation of legislation is included within parliamentary privilege and attracts absolute immunity, it would inevitably risk extending the privilege to the executive, with far-reaching and unforeseeable consequences. Thus, we disagree with our colleagues' answer to the first question. [ 118 ] Accordingly, the constitutional questions are answered as follows: Answer to question 1: Yes. Answer to question 2: Yes. [ 119 ] The appeal is dismissed with costs. --- ## The reasons of Kasirer and Jamal JJ. were delivered by Jamal J. — ### I. Overview [ 120 ] This appeal presents two questions of law posed by the Attorney General of Canada. First, can the Crown, in its executive capacity, be held liable in damages under s. 24(1) of the Canadian Charter of Rights and Freedoms for government officials and Ministers preparing and drafting a bill that is enacted by Parliament but subsequently declared inconsistent with the Charter and of no force or effect under s. 52(1) of the Constitution Act, 1982? Second, can the Crown, in its executive capacity, be held liable in damages under s. 24(1) of the Charter for Parliament enacting a bill into law that is later declared inconsistent with the Charter and of no force or effect under s. 52(1) of the Constitution Act, 1982? [ 121 ] The New Brunswick Court of Queen's Bench and Court of Appeal answered both questions in the affirmative. They followed this Court's decision in *Mackin v. New Brunswick (Minister of Finance)*, 2002 SCC 13, [2002] 1 S.C.R. 405, which held that a court may award damages under s. 24(1) of the Charter for harms suffered because of a law that is later declared unconstitutional when the law is "clearly wrong, in bad faith or an abuse of power" (para. 78). Although the Attorney General of Canada had argued that there can be no Crown liability for the enactment of legislation because of parliamentary privilege, the separation of powers, and parliamentary sovereignty, the Court of Appeal said that "until the Supreme Court overrules [Mackin] or limits its application, we are duty-bound to apply it" (2022 NBCA 14, 471 D.L.R. (4th) 68, at para. 20). [ 122 ] I accept that the courts below were bound to follow Mackin as a precedent of this Court. However, the parties in Mackin did not raise parliamentary privilege and the Court did not address the privilege in its reasons. In my respectful view, Mackin should now be clarified. Aspects of Mackin conflict with the constitutional doctrine of parliamentary privilege, principles of justiciability, and the separation of powers. Applying Mackin without clarification or modification would intrude into the constitutionally-assigned domain of Parliament. [ 123 ] Parliamentary privilege includes "the sum of the privileges, immunities and powers enjoyed by the Senate, the House of Commons and provincial legislative assemblies, and by each member individually, without which they could not discharge their functions" (*Canada (House of Commons) v. Vaid*, 2005 SCC 30, [2005] 1 S.C.R. 667, at para. 29). It includes the privileges of freedom of speech in the legislative process and Parliament's exclusive control over parliamentary proceedings. This Court has recognized that, in principle, parliamentary privilege can extend to members of Parliament or a legislative assembly, and to parliamentary officers, employees, and officials (Vaid, at paras. 29 (11) and 41). The issue is not the nature of the individual but whether their activities are necessary to the legislative functions that parliamentary privilege was originally designed to protect (Vaid, at paras. 4 and 44). Courts have jurisdiction to determine the existence of a recognized category of parliamentary privilege, but they have no jurisdiction to review the exercise of the privilege, even for compliance with the Charter. Because the privilege is part of the Constitution of Canada, it cannot be abrogated or diminished by another part of the Constitution, including the Charter. Parliamentary privilege is a corollary to the separation of powers because it gives the legislative branch of government the autonomy it requires to perform its constitutionally-assigned functions. [ 124 ] Against this backdrop, the first question posed by the Attorney General should be answered in the negative for two reasons. First, the doctrine of parliamentary privilege creates an exception to the possibility of Crown liability for the conduct of government officials and Ministers in preparing and drafting legislation. The preparation and drafting of legislation is core legislative conduct that is necessarily incidental to proceedings in Parliament. Such conduct is protected from judicial interference by the established categories of parliamentary privilege of freedom of speech and control over parliamentary proceedings. The courts have no jurisdiction to review or assign liability for the exercise of these established categories of privilege, even after the legislative process has concluded, and even when it is alleged that the legislation infringed the Charter. [ 125 ] Second, the Crown, in its executive capacity, cannot be liable for the legislative work of Ministers and the government officials supporting them in preparing and drafting legislation because this is legislative rather than executive conduct, and thus cannot be attributed to the Crown in its executive capacity. The Crown cannot be liable for legislative conduct in an action brought under s. 23(1) of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, which provides the statutory basis for suing the Crown in right of Canada by taking proceedings in the name of the Attorney General of Canada. [ 126 ] The second question should be answered in the affirmative, but in a qualified manner. Mackin should be clarified to eliminate "bad faith" and "abuse of power" in enacting primary legislation as grounds for damages under s. 24(1) of the Charter. These grounds would inevitably trench on the established categories of parliamentary privilege of freedom of speech and control over parliamentary proceedings. They would draw the courts into scrutinizing whether the substance of the legislation is in "bad faith" or an "abuse of power" after that legislation has already been found to be unconstitutional. This question is not justiciable and would strain the separation of powers. [ 127 ] Although "bad faith" and "abuse of power" are unavailable as grounds for damages under s. 24(1) of the Charter, the "clearly wrong" threshold contemplated in Mackin remains available under the second question. I would, however, reformulate that threshold by holding that the Crown could be liable for damages under s. 24(1) for harms caused by "clearly unconstitutional" enactments, if the unconstitutionality was readily or obviously demonstrable at the time of enactment and could not have been subject to any serious debate. [ 128 ] The standard of "clearly unconstitutional" is a justiciable standard that allows a court to consider whether legislation had the unconstitutional purpose of infringing a Charter right in evaluating whether damages would be an "appropriate and just" remedy under s. 24(1) of the Charter. This is analytically distinct from the non-justiciable standard of whether the legislation involved "bad faith" or an "abuse of power". [ 129 ] In addition, the "bad faith" and "abuse of power" standards are not anchored in considerations relating to the constitutionality of legislation and would therefore inevitably stray into judging the wisdom or policy of the law, which is not the proper role of the courts. The "clearly unconstitutional" standard, on the other hand, protects parliamentary privilege as a rule of curial jurisdiction and upholds the separation of powers, while allowing individuals whose rights have been breached by clearly unconstitutional enactments to seek Charter damages in appropriate cases. --- [Reasons of Jamal J. (paras. 130–253) and Rowe J. (paras. 254–383) continue below. Full text of dissenting reasons omitted for length; available at source URL.] --- ## Disposition Appeal dismissed with costs, Kasirer and Jamal JJ. dissenting in part and Côté and Rowe JJ. dissenting. Solicitors for the appellant: Department of Justice Canada — Prairie Region, Winnipeg; Department of Justice Canada — Atlantic Region, Halifax. Solicitors for the respondent: Trudel Johnston & Lespérance, Montréal. Solicitor for the intervener the Attorney General of Ontario: Ministry of the Attorney General, Civil Law Division — Constitutional Law Branch, Toronto. Solicitor for the intervener the Attorney General of Quebec: Ministère de la Justice du Québec, Direction du droit constitutionnel et autochtone, Québec. Solicitor for the intervener the Attorney General of Nova Scotia: Attorney General of Nova Scotia — Legal Services Division — Department of Justice, Halifax. Solicitor for the intervener the Attorney General of New Brunswick: Attorney General of New Brunswick — Legal Services — Constitutional Group, Fredericton. Solicitor for the intervener the Attorney General of Manitoba: Attorney General of Manitoba, Legal Services Branch — Constitutional Law Section, Winnipeg. Solicitor for the intervener the Attorney General of British Columbia: Ministry of Attorney General, Vancouver. Solicitor for the intervener the Attorney General of Prince Edward Island: Attorney General of Prince Edward Island, Department of Justice & Public Safety, Charlottetown. Solicitor for the intervener the Attorney General of Saskatchewan: Saskatchewan Ministry of Justice and Attorney General — Constitutional Law Branch, Regina. Solicitor for the intervener the Attorney General of Alberta: Alberta Justice — Constitutional and Aboriginal Law, Edmonton. Solicitor for the intervener the Attorney General of Newfoundland and Labrador: Department of Justice & Public Safety, Government of Newfoundland and Labrador, St. John's. Solicitors for the interveners the Fisher River Cree Nation, the Sioux Valley Dakota Nation, the Manto Sipi Cree Nation, and the Lake Manitoba First Nation: Sotos, Toronto; Cochrane Saxberg, Winnipeg. Solicitors for the intervener Quebec Native Women Inc.: Dionne Schulze, Montréal. Solicitors for the intervener the Speaker of the Senate: Senate of Canada, Ottawa; Cochrane Saxberg, Vancouver. Solicitors for the intervener the David Asper Centre for Constitutional Rights: Olthuis Van Ert, Ottawa; Megan Stephens Law, Toronto. Solicitors for the intervener the Canadian Civil Liberties Association: Paliare Roland Rosenberg Rothstein, Toronto. Solicitors for the intervener the Canadian Constitution Foundation: Baker & McKenzie, Toronto. Solicitors for the intervener the Queen's Prison Law Clinic: Koskie Minsky, Toronto. Solicitors for the intervener the John Howard Society of Canada: McCarthy Tétrault, Vancouver. Solicitors for the intervener the British Columbia Civil Liberties Association: Osler, Hoskin & Harcourt, Vancouver. Solicitors for the intervener the West Coast Prison Justice Society: Norton Rose Fulbright Canada, Ottawa. Solicitors for the intervener the Speaker of the House of Commons: Gowling WLG (Canada), Ottawa. --- ## Footnotes [^1]: Section 11(h) of the Charter provides that any person charged with an offence has the right "if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again". Section 11(i) states that any person charged with an offence has the right "if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment". [^2]: For a more complete description of the relationship between the unwritten components of the Constitution and underlying/unwritten principles, see M. Rowe and N. Déplanche"Canada's Unwritten Constitutional Order: Conventions and Structural Analysis" (2020), 98 Can. Bar Rev. 430, and Rowe and Oza.