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On February 2, 2026, the Supreme Court of Canada (“SCC”) granted leave to appeal the Court of Appeal for British Columbia’s (“BCCA”) judgment in Named Persons v Canada (Attorney General), 2025 BCCA 197 [Named Persons]. This appeal provides the SCC with an opportunity to clarify the scope and application of s 7 principles of fundamental justice and s 24(1) damages under The Canadian Charter of Rights and Freedoms [Charter].
Facts
This case’s factual background is almost entirely redacted to protect the identity of a confidential informant who raised the constitutional claim. However, there are some discernible facts from the BCCA’s reasons.
In this dispute, the appellants allege that the Canadian government disclosed information that tended to reveal the identity of a confidential informant (Named Persons, para 1). As a result, the Named Persons argue that the Canadian government deprived them of their rights to life and to security of the person pursuant to s 7 of the Charter.
Judicial History
The Supreme Court of British Columbia
The trial judge at the Supreme Court of British Columbia made three key findings.
First, the analysis begins with an overview of the two-step s 7 framework that requires a party to demonstrate (1) a deprivation of life, liberty, or the security of the person and (2) that the deprivation is inconsistent with a principle of fundamental justice. At the first stage of the s 7 analysis, the trial judge found that the disclosure increased the Named Persons’ risk of death and caused them to “fear for their lives”, thereby depriving the Named Persons of their rights to life and to security of the person (Named Persons, para 101).
Second, at the next stage of the s 7 analysis, the trial judge held that the Named Persons established that this deprivation was the result of the Canadian government’s disclosure, which is inconsistent with the principles of fundamental justice (Named Persons, para 103). While the trial judge concluded that some unlawful acts by the government can be consistent with principles of fundamental justice, he found that the Canadian government’s disclosure in the instant case was “…clearly inconsistent with the basic tenets of our legal system” (Named Persons, para 104). This reasoning underscores two takeaways.
On the one hand, the trial judge characterized the SCC’s holding in Canada (Prime Minister) v Khadr, 2010 SCC 3 [Khadr] as establishing that state conduct inconsistent with the basic tenets of the Canadian legal system breaches a principle of fundamental justice without specifically identifying which principle the conduct breached (Named Persons, para 104).
On the other hand, and by extension, the trial judge did not recognize informer privilege as a distinct principle of fundamental justice. He reasoned that the deprivation of liberty and security of person in this case—the disclosure—was without justification in law and therefore “not in accordance with the principles of fundamental justice” (Named Persons, para 105). In other words, the disclosure breached not a precise principle of fundamental justice but rather the basic tenets of the Canadian legal system.
Third, and last, the trial judge awarded the Named Persons $12,500.00 each as a remedy under s 24(1) of the Charter for breaching their rights to life and security of the person (Named Persons, para 106). The trial judge found that the breach of confidential informer privilege constitutes a “distinct loss” that cannot be addressed through compensatory tort damages (Named Persons, para 106).
Issues
Two relevant issues were put to the BCCA for the purposes of this article:
- Did the trial judge err in finding that the Named Persons established a s 7 Charter breach without identifying a specific principle of fundamental justice?
- Did the trial judge err in awarding damages for vindication under s 24(1) of the Charter?
The BCCA’s Decision
The BCCA addressed each issue in turn.
Issue #1: Did the trial judge err in establishing a s 7 Charter breach without identifying a specific principle of fundamental justice?
Justice Willcock, writing for the BCCA, held that the trial judge erred in law when he found that the Named Persons established a s 7 breach without identifying a specific principle of fundamental justice. This conclusion follows in two parts.
First, Willcock JA found that the parameters of protected interests under s 7 of the Charter must be “clearly defined” (Named Persons, para 113). It is insufficient to declare a state action deprives somebody of their rights to life, liberty, or security of the person in a way that offends the “basic tenets of our legal system” (Named Persons, para 113). The applicant seeking a Charter remedy—particularly an award to vindicate a breach—must identify the specific basis for the breach of the s 7 right (Named Persons, para 113).
Second, the BCCA held that defining a clear principle of fundamental justice is important to understand its nature, source, rationale, and essential role (Named Persons, para 117). Case law indicates that simply alleging that state conduct violates an existing legal principle or common law rule does not meet the s 7 threshold (Named Persons, para 118). In support of this position, the BCCA took a narrower interpretation of Khadr. It held that the SCC in Khadr found a breach of s 7 not because the state conduct was inconsistent with the basic tenets of the Canadian legal system. Instead, the government’s actions were “cruel and abusive treatment contrary to the principles of fundamental justice” (Named Persons, para 124).
While principles of fundamental justice can be rooted in the basic tenets of the Canadian legal system, the BCCA affirmed that a principle must satisfy three criteria to become a principle of fundamental of justice: (1) it must be a legal principle; (2) there must be consensus that the rule or principle is fundamental to the way in which the legal system ought fairly to operate; and (3) it must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty, or security of the person (Named Persons, para 126).
Therefore, Willcock JA concluded that the unlawfulness of the disclosure does not, by itself, render the deprivation of the right to life or security of the person inconsistent with the principles of fundamental justice. Cases cited by the Named Persons in support of equating unlawfulness with an immediate s 7 breach are distinguishable insofar as they fall under the abuse of process doctrine—a recognized principle of fundamental justice (Named Persons, para 135).
Similarly, cases invoking a “residual category” are not reflective of an unidentified principle of fundamental justice (Named Persons, para 139). These situations fall under a narrow class established when s 7 was understood to protect procedural rather than substantive rights (Named Persons, para 139). In these narrow situations, courts label state conduct as a breach of s 7 under the residual category when it would not necessarily affect the fairness of a trial but nevertheless undermines the integrity of the justice system (Named Persons, para 139).
Issue #2: Did the trial judge err in awarding damages for vindication under s 24(1) of the Charter?
The BCCA concluded that it is unnecessary to recognize informer privilege as a principle of fundamental justice in the present case, as there is no basis to award s 24(1) Charter damages for vindication. While Willcock JA noted there are “compelling arguments” to recognize informer privilege as a principle of fundamental justice, doing so would not assist the appellants in this case because they would not receive Charter damages (Named Persons, para 143). Simply put, even though there are sufficient descriptions of the nature, sources, rationale, and essential role of this principle in Canadian case law, Charter damages on the present facts are “unwarranted and unsupportable” (Named Persons, para 148).
As held in Vancouver (City) v Ward, 2010 SCC 27, there are two countervailing considerations when a court is determining whether to grant Charter damages: (1) the existence of alternative remedies to effectively address the Charter breach and (2) interference with good governance, including the government’s ability to performs its various functions effectively (Named Persons, para 149).
Under the first branch of the Ward framework, the BCCA concluded that deterrence and vindication were insufficient reasons to grant Charter damages on the facts. Justice Willcock agreed with the trial judge’s finding that deterrence did not justify damages under s 24(1) because disclosure breaches are rare and that the state is taking steps to prevent them (Named Persons, para 155).
By contrast, on the issue of vindication, the BCCA held that awarding Charter damages to vindicate a breach grounded in negligence is problematic (Named Persons, para 156). The harm flowing from the tort claim that was established at trial and the separate alleged Charter breach do not differ. Moreover, the trial judge’s finding that there was no need for aggravated damages in this case undermines the conclusion that Charter damages are necessary (Named Persons, paras 157, 159). To add, there was no evidence that a monetary award was necessary to ensure the constitutional protection’s efficacy (Named Persons, para 161).
Under the second Ward branch, the BCCA found that certain circumstances may exist in which there should be no award of Charter damages for an alleged breach of informer privilege, even when a tort claim is not established. As a matter of policy, there are heavy burdens on the Crown to make a continuous disclosure of material information to an accused person to allow for his or her full answer and defence while protecting an informer’s identity (Named Persons, para 166).
Analysis
I largely agree with the BCCA’s reasons that a breach of s 7 requires a specific principle of fundamental justice, but disagree with its analysis that remedies are not warranted. My analysis below is divided accordingly.
Point #1: The s 7 issue
On the s 7 issue, the trial judge’s willingness to find a breach of a fundamental principle of justice on the basis that the disclosure is inconsistent with the “basic tenets of our legal system” risks undermining the established analytical framework under s 7. As the BCCA held, identifying a specific principle of fundamental justice is important because it must be understood in light of its nature, source, rationale, and essential role (Named Persons, para 117).
In turn, this precision allows for effective remedies at the s 24 stage. Without a thorough conceptualization of the proposed principle of fundamental justice, it is difficult to see how an award would “deter” or “vindicate” a breach of s 7. In effect, a Charter remedy that flows from a violation of a broadly and ill-defined principle of fundamental justice serves a meaningless role if it does not specifically address the exact principle the state breached.
Point #2: The s 24(1) issue
As discussed, the BCCA held that awarding a Charter remedy to deter this state conduct in the future is unnecessary because disclosure breaches are rare (Named Persons, para 155). Yet, only a few paragraphs later, under its discussion of vindication, the BCCA concluded as a matter of policy that awarding Charter damages may raise the issue of “unprecedented” liability against the Crown (Named Persons, para 168). These findings beg the question: If awarding Charter remedies in these circumstances is unnecessary to deter this state practice because disclosures are “rare”, how would awarding Charter damages in this case open the door to “unprecedented” liability stemming from the Crown disclosing information that tends to reveal the identity of an informer? If this type of disclosure is rare, then it follows that awarding Charter damages in these circumstances would not open the floodgates to Crown liability. Thus, this appeal provides an opportunity for the SCC to clarify the law on s 7 and its relationship with Charter damages.