C. Conclusion

Author:Robert J. Sharpe - Kent Roach
Profession:Court of Appeal for Ontario - Faculty of Law, University of Toronto
Pages:431-433
 
FREE EXCERPT

Page 431

Some of the most difficult and controversial Charter issues concern remedies. Section 24 confers an express mandate on the courts to ensure that violations of Charter rights are remedied in an appropriate fashion. In determining remedial issues, the courts have drawn on existing principles but have also had to find new remedial techniques. As with other Charter issues, there is a delicate institutional balance to

Page 432

be struck. Remedial choice is governed in part by the need to ensure that individuals receive an appropriate remedy and in part by consideration of the respective roles of courts and legislatures. In determining remedial measures to right particular wrongs, there is choice ranging from declaratory relief, which entails minimal judicial involvement, to injunctions, which may require ongoing judicial supervision. The Ward case clarifies that damages must be justified for purposes relating to compensation, vindication, or deterrence of Charter violations. Even if those purposes are present, the government will have an opportunity to demonstrate that the award of damages would harm effective governance. Similarly, there is a range of remedial options under section 52(1) of the Constitution Act, 1982 with respect to the validity of legislation. The courts may strike down all or parts of a law, mandate affirmative changes to the law through reading in, or decide to strike down the law but suspend or delay its declaration of invalidity. There is also the rare option of the courts finding that the government has justified a departure from the norm of retroactive remedies and that only prospective relief is required. As with other areas of Charter jurisprudence, the Supreme Court has not hesitated to break new ground, but at the same time, it has tried to proceed in a relatively cautious, incremental manner, conscious of the limits of the judicial function and the need to respect the role and responsibilities of the democratically elected representatives of the people.

FURTHER READINGS

CHOUDHRY, s, & K ROACH, "Putting the Past behind Us? Prospective Judicial and Legislative Constitutional Remedies" (2003) 21 Sup Ct L Rev (2d) 205

COOPER-STEPHENSON, KD, Charter Damage Claims (Calgary: Carswell, 1990)

...

To continue reading

FREE SIGN UP