Monday, November 30, 2009
The process by which the United States Supreme Court determined who should bear the risk of loss of constitutional violations stands as a cautionary tale as the courts of Canada embark on the task of deciding when, and from whom, an award of damages is an “appropriate and just” remedy for Charter breaches. The United States Supreme Court developed its jurisprudence in three discrete silos: 1) immunity of individual officials; 2) entity liability for damages; and 3) standards for issuance of equitable and declaratory relief. The Court consistently neglected to consider how its rulings in one of the three silos, when applied in concert with other doctrines, affect the final allocation of losses caused by constitutional wrongdoing. As a consequence, innocent victims often are left without any remedy for infringement of their fundamental constitutional liberties.
This article proposes that in litigating and adjudicating any single issue that arises when a citizen seeks to recover damages for a Charter violation, the advocates and judges must adopt a holistic approach, assessing how resolution of that one issue will impact the overall assignment of the risk of loss. Counsel and the court always must consider how the answer to the question posed in the case at bar will affect plaintiff’s and future citizen’s ability to obtain a viable remedy for deprivations of Charter rights in light of 1) rules regarding immunity of individual officials; 2) doctrines approving or limiting the liability of governmental entities; and 3) the availability of injunctive or declaratory relief to redress the constitutional violation.