Allocating Damages Caused by Violation of the Charter: The Relevance of American Constitutional Remedies Jurisprudence

For a constitutional right to carry more than symbolic significance, it is essential that an effective remedy be afforded persons who have suffered an infringement of liberty. Given the relative infancy of the Charter, the courts of Canada have yet to develop a comprehensive doctrine regarding the allocation of damages caused by violation of the Charter among the public official who contravened the Charter, the governmental entity, and the victim. The courts may be tempted to borrow the United States' more developed jurisprudence on constitutional remedies. This Article argues that, as in the States, it is essential that Canada recognize a civil cause of action - independent of the common law - to redress invasions of rights secured by the Charter. However, the courts should not graft the contours of the American cause of action onto civil suits complaining of Charter wrongs. The United States' scheme of risk allocation turns exclusively on the Supreme Court's interpretation of the intent of the 1871 Congress that enacted a statutory cause of action to recover damages for constitutional violations. That legislature harbored an overarching concern that the federal government be restrained in disrupting state prerogatives. By contrast, the civil action to remedy deprivations of Charter liberties is prescribed by Section 24(1) of the Charter. Furthermore, structural differences both in the division of federal and provincial powers and in the jurisdiction of the Supreme Court over provincial affairs mitigate federalism concerns posed by a Charter damage remedy. Conversely, the Canadian judiciary's expressed inclination to be restrained in wielding its newly conferred power to trump the will of the legislature does not justify a more restrictive attitude towards awarding damages. The doctrine of immunity singularly serves to shift the risk of constitutional loss to the victim. While required to respect and enforce any immunity implicit in the Charter, the courts of Canada should not blindly adopt the United States Supreme Court's construction of non-constitutional immunities, which prefers the preservation of federalism and protection of governmental discretion over compensating harms to victims of governmental misconduct and deterring future invasions of constitutionally embedded liberty.

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