This case is about Charter remedies. In litigation, remedies are often what defines the real-world effectiveness of a given right. A common saying in the law is that “a right without a remedy is no right at all”.

Here, in a criminal proceeding, while providing disclosure to an accused person, the Crown inadvertently disclosed potentially identifiable information of some confidential informants. This put the safety and lives of the informants at risk. The informants brought an action against Canada seeking damages (monetary remedies provided by the court) for both negligence and Charter violations. At trial, the Crown was found liable and ordered to pay both types of damages.

On appeal, the BC Court of Appeal found that Charter damages should not have been awarded because the damages for negligence[OC1]  were sufficient to address all of the breaches. The Charter damages award was overturned because it would amount to “double compensation”.

BCCLA is intervening at the Supreme Court of Canada to argue that Charter damages will result in double compensation only where they truly serve the same purpose as other forms of damages. Charter damages advance societal interests that private damages do not. In addition, the Charter and private law often protect different interests. For instance, negligence addresses only actual harm, while s. 7 of the Charter also addresses increased risk of harm.  Courts should carefully consider these differences before making a finding of double compensation.

We can look to the Ontario Court of Appeal for examples of a court that has been alert to these distinctions. In its decisions about compensation for solitary confinement, the Court has clearly differentiated between monetary and Charter damages, often awarding both in the same cases.

Tags: Due Process, Access to Justice

Case Summary: Canadian Coalition for Firearm Rights, et al. v. Attorney General of Canada

This case is an example of the recent trend to expand executive power, and illustrates the need for this type of power to be put in check by the courts.

In May 2020, the Governor in Council (“GIC”) amended the Regulations Prescribing Certain Firearms and Other Weapons, Components and Parts of Weapons, Accessories, Cartridge Magazines, Ammunition and Projectiles as Prohibited or Restricted, SOR/2020-96 (the “Regulation”) to prohibit approximately 1,500 previously legal models of firearms. In addition to specifically listed firearms, the amendments prohibited variants, modified versions, and firearms possessing certain prescribed physical characteristics, including so-called “unnamed variants” of the listed firearms. (That is, any variation or modification of the firearms that is yet to be conceived.)

Through six different applications, several applicants – including individual firearm owners, firearms businesses, advocacy groups, and shooting clubs – sought judicial review in the Federal Court, arguing that the Regulation is unreasonable. The applicants also argue that Canada’s reliance on Cabinet privilege to withhold information relied on by the GIC should weigh in favour of their case.

The Federal Court dismissed all the applications, and held that the GIC acted within the scope of its authority under the Criminal Code, and that the decision to enact the Regulation was a reasonable exercise of the delegated regulation-making power. The Federal Court of Appeal upheld this decision.

BCCLA is intervening at the Supreme Court of Canada to argue that delegated legislation creating criminal offences, or expanding the scope of criminal liability, has significant constitutional implications. By broadening the definition of prohibited firearms, the Regulation exposes individuals to criminal prosecution and penalties of up to five years’ imprisonment. Given these serious consequences, the Court should apply a more exacting standard when reviewing delegated criminal legislation. BCCLA also argues that the reliance on Cabinet confidentiality should not totally prevent courts from reviewing exercises of executive power. Where Cabinet keeps its decision-making process secret, this should weigh against the validity of a regulation.