(This article has been translated into French.)

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.

In administrative law, it’s possible to separate an act’s legal effect — its power to change the legal state of affairs in the world — from compensation for its harms. That is, a governmental action can be legally effective but still generate a claim to compensation. A helpful example is legislation that expropriates private land in pursuit of a public purpose, such as building an airport. If the legislation is silent on whether former owners will receive compensation, the expropriation will be valid, but the court will assume that the government intended to respect the established entitlement to compensation. Similarly, then, Bill 21 might be in effect, in virtue of section 33, all the while racking up liability for its directly caused harm.

I anticipate an objection that government has a public policy immunity, that it would be wrong for courts to award damages for the foreseeable harms of operative legislation. One might also object that in Ward, the strip search was illegal. Given all that, what should be the approach where a law shielded by section 33 legalizes discrimination and other harms?

We need to consider how unusual a law Bill 21 is, protected as it is by the notwithstanding clause. In the normal course of life under the Canadian Charter, we don’t regard protected rights and freedoms as absolute. Instead, we accept reasonable limits on rights. We acknowledge that making an omelette requires breaking some eggs, so reasonably justifiable limits on rights are acceptable where the overall benefit exceeds the law’s harms. Appropriately enough, we don’t regard a law that reasonably and proportionately limits Charter rights as incurring governmental liability for any harm it causes. I suggest that Bill 21 is different. The limits it imposes on rights such as freedom of religion and the right to freedom from discrimination are unreasonable and disproportionate. At minimum, the government has not taken the trouble of establishing otherwise.

Section 1 of the Charter requires rights-bearers to absorb the impact of reasonable, proportionate limits on their rights in pursuit of the general good. But where there is no basis to believe that the social benefit justifies the harm to rights, it might be appropriate and just to conclude that the regime’s costs should not fall only on an identifiable, vulnerable class of individuals.

Granted, some harms flowing from Bill 21 might be too remote for compensation. But some are unmistakably tied closely to it. On top of that, they are easily quantified. Think of hijab-wearing education students or immigrant teachers in the process of acquiring credentials to teach in Quebec. If they were not in a job by last March, under the wire of the grandfather clause, they will have losses directly linked to their efforts to become public school teachers in the province. Why should the public decision to stop hiring visibly religious people in our schools lay its costs on them alone? An order that the government pay compensation would do something to repair the harm suffered under Bill 21. It would also send a powerful message that even in a constitutional order with a notwithstanding clause, government cannot shirk all responsibility for its actions.

This text is adapted from an excerpt of the Alan B. Gold Advocacy Lecture, delivered to the Lord Reading Law Society at Shaar Hashomayim, Westmount, Quebec, on September 24, 2019.

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Robert Leckey
A lawyer emeritus of the Quebec Bar, Robert Leckey holds the Samuel Gale Chair in the Faculty of Law at McGill University.

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