It’s rare for a government to have to pay for a breach of Charter rights, but the door is open to it, and Bill 21 clearly violates those rights.
Might a government owe financial compensation to the individuals it harms via use of the notwithstanding clause in the Canadian Charter of Rights and Freedoms? Specifically, where a law harms fundamental rights and is effective only because the legislature invoked the notwithstanding clause, is it up to individuals alone to absorb those harms? On the contrary, I argue that a court might order a government to pay compensation or damages for the harms it causes.
The question arises most obviously in Quebec. In June, the Legault government in that province adopted Bill 21, An Act respecting the Laicity of the State. It shielded the law from direct challenges under much of the Canadian Charter by use of the notwithstanding clause (section 33). The law’s controversial measures include a ban on religious symbols worn by many categories of public employees. The law prevents visibly religious people from being hired as teachers, principals and government lawyers. Although there is a grandfather clause for employees who held those positions as of March 2019, it won’t cover them if they accept promotion or reassignment.
In my view, it’s open to individuals to seek an award of damages under the Charter’s remedies clause. Section 24(1) states simply that anyone whose Charter rights “have been infringed or denied may apply…to obtain such remedy as the court considers appropriate and just in the circumstances.”
Courts haven’t often ordered the government to pay compensation for breach of someone’s Charter rights, but the Supreme Court of Canada has unquestionably opened the door to doing so. Nearly a decade ago, in Ward, the Supreme Court set out the prevailing approach. In that case, an individual was mistakenly arrested because a police officer believed that he intended to throw a pie at the prime minister. Alan Cameron Ward was strip-searched in violation of his Charter right to freedom from unreasonable search and seizure. He ultimately obtained $5,000. The Court emphasized the potential for Charter remedies to include constitutional damages. In short, Ward tells us that there can be damages for violation of Charter rights. Bill 21 violates Charter rights. Might the harms from Bill 21 be compensable, too?
It’s critical here to understand the textual limits on a government’s use of the notwithstanding clause. Section 33 states: “Parliament or the legislature…may expressly declare…that [an] Act or a provision thereof shall operate notwithstanding…section 2 or sections 7 to 15 of this Charter.” It goes on: “An Act or a provision…in respect of which a declaration made under this section is in effect, shall have such operation as it would have but for the provision of this Charter referred to.” The constitutional language is saying that the law being shielded will continue in force, but it says nothing about what judges may do.
We need to take care not to read restrictions into the text that aren’t there. As observed by Léonid Sirota, section 33 makes no mention of section 24, the remedies clause. That means a government cannot use the notwithstanding clause to shield a law from the remedies clause: it cannot legislate that a law will operate — with potentially harmful effects — notwithstanding the remedies clause. I see no reason for judges to give governments greater immunity from the Charter than its drafters did by developing such a rule themselves. MORE