Canadian Human Rights Mechanisms
| Author | Mark Freeman, Gibran Van Ert |
| Pages | 348-382 |
348
It is a well-established rule of international law that international tri-
bunals will not entertain claims against a state unless the claimant has
exhausted all remedies available under the state’s domestic law.1And as
we saw in Chapter Twelve, the right to a domestic remedy for viola-
tions of international human rights law is itself a human right to which
states parties to UN and other human rights treaties must give effect.
With these two principles in mind, we turn now to consider Canadian
mechanisms for the promotion and protection of human rights.
Means of remedying violations of human rights are at the forefront
of this discussion. Yet the concept of remedy discussed here is broader
than the traditional notion of judicial remedies in Canadian law. This
breadth reflects the international approach, which contemplates not
only judicial but also legislative, administrative, and political action to
ensure the protection and promotion of human rights norms.2
CANADIAN HUMAN
RIGHTS MECHANISMS
chapter 13
1 The rule is customary: Interhandel Case (Switzerland v. United States), [1959] ICJ
Rep 27.
2 In Canada, Core Document Forming Part of the Reports of States Parties: Canada
(1998) UN doc. HRI/CORE/1/Add.91 at para. 90, Canada notes that responsibil-
ity for the protection of human rights in Canada is shared between the legisla-
tive, executive, and judicial branches of government.
A. The Right to a Remedy in Canadian
Law
In Canadian law, the maxim “No right without a remedy” is well-estab-
lished in common law and is also given effect by statutes and the Char-
ter. The principle was famously enunciated by Holt C.J. in the old English
case of Ashby v. White:
If the plaintiff has a right, he must of necessity have a means to vin-
dicate and maintain it, and a remedy if he is injured in the exercise or
enjoyment of it; and indeed it is a vain thing to imagine a right with-
out a remedy; for want of right and want of remedy are reciprocal.3
These words, and the principle they capture, have frequently been
affirmed in Canadian cases.4In respect of Charter violations, section
24(1) provides, “Anyone whose rights or freedoms, as guaranteed by
this Charter, have been infringed or denied may apply to a court of
competent jurisdiction to obtain such remedy as the court considers
appropriate and just in the circumstances.”5The breadth of this section
has frequently been affirmed by the Supreme Court of Canada. In R. v.
Mills, McIntyre J. observed that it is “difficult to imagine language
which could give the court a wider and less fettered discretion.”6The
Supreme Court of Canada has recently emphasized that courts must use
section 24(1) to craft remedies that are both responsive and effective.7
B. Judicial Mechanisms
We examine under this heading judicial remedies for human rights vio-
lations available under the Charter, quasi-constitutional and ordinary
Canadian Human Rights Mechanisms 349
3 (1703) 92 ER 126 at 136 (Eng QB).
4 For example Orchard v. Tunney, [1957] SCR 436 at 447; R. v. Mills, [1986] 1 SCR 863
Nova Scotia (Minister of Education), 2003 SCC 62 at para. 25 [Doucet-Boudreau].
5 Included with this broad remedial power is a more specific provision, without
parallel in international law, requiring courts to exclude evidence obtained con-
trary to the Charter if its admission would bring the administration of justice
into disrepute: Charter s. 24(2).
6Mills, above note 4, at 965. See also Doucet-Boudreau, above note 4, at para. 24.
7 “[A] purposive approach to remedies requires at least two things. First, the pur-
pose of the right being protected must be promoted: courts must craft responsive
remedies. Second, the purpose of the remedies provision must be promoted:
courts must craft effective remedies”: Doucet-Boudreau, ibid. at para. 25 (Iacobuc-
ci and Arbour JJ.’s emphasis).
statutes, and the common law. Excluded from this discussion are anti-
discrimination mechanisms, which we address separately below. Before
addressing these judicial remedies, we consider the justiciability of
claims founded on international human rights law.
1) Justiciability of International Law Claims
While both international and Canadian law affirm the right to an effec-
tive remedy for rights violations, this does not mean that violations of
international human rights law are directly justiciable in Canadian
courts. A justiciable question may be defined as one that a court of law
is prepared to answer.8Courts have found certain questions to be non-
justiciable for a variety of reasons including mootness, lack of stand-
ing, and the inappropriateness of the court as a forum for resolving
certain disputes. The conventional wisdom is that questions arising
from international law are not justiciable in Canadian courts unless the
international norm at issue has been implemented into Canadian law.
This approach oversimplifies to the point of error. The implemen-
tation requirement only applies to treaties. Matters of customary inter-
national law are automatically incorporated into the common law and
are therefore justiciable like other common law rules.9As for treaty law,
Canadian court practice is more welcoming of international law argu-
ments than is sometimes suggested. In responding to the contention
that so-called “pure” questions of international law are not justiciable,
the Supreme Court of Canada in Re Secession of Quebec10 noted that it
has looked to international law in a number of previous cases “to deter-
mine the rights or obligations of some actor within the Canadian legal
system.” Furthermore, a narrow approach to justiciability fails to take
account of the strong interpretive presumption that domestic law con-
forms with Canadian treaty obligations.11 Longstanding Anglo-Canadi-
an judicial practice makes clear that unimplemented treaty obligations
are justiciable to the extent required to apply the presumption of con-
formity. Thus, while a litigant may not be able to place direct reliance
on a right guaranteed by a Canadian treaty obligation, he is permitted
to raise that right and rely on it for the purposes of interpreting a
350 international human rights law
8 “The notion of justiciability is concerned with the appropriateness of courts
deciding a particular issue, or instead deferring to other decision-making institu-
tions like Parliament”: Re Canada Assistance Plan (British Columbia), [1991] 2
SCR 525 at 545.
9 See the discussions of implementation and incorporation in Chapter Eight.
11 See the discussion of the presumption of conformity in Chapter Eight.
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