What remedy does section 52(1) of the Criminal Code apply to a government agent who has committed an unconstitutional act?
British Columbia, Canada
The following excerpt is from British Columbia (Director of Civil Forfeiture) v. Hells Angels Motorcycle Corporation, 2013 BCSC 2575 (CanLII):
Section 24(1), by contrast, is generally used as a remedy, not for unconstitutional laws, but for unconstitutional government acts committed under the authority of legal regimes which are accepted as fully constitutional: see Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC), [1997] 3 S.C.R. 624; Multani v. Commission scolaire Marguerite-Bourgeoys, [2006] 1 S.C.R. 256, 2006 SCC 6. The acts of government agents acting under such regimes are not the necessary result or “effect” of the law, but of the government agent’s applying a discretion conferred by the law in an unconstitutional manner. Section 52(1) is thus not applicable. The appropriate remedy lies under s. 24(1).
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