Damages in Constitutional Cases

• Author: Janet E. Minor
• Pages: 73-98

Damages

in

Constitutional

Cases

Janet

E.

Minor*

There

can be no

doubt that

the

Charter

poses

new and

unprecedented prob-

lems/or

the

courts,

not

only

in the

area

of

judicial

decision-making,

but in

fashioning remedies which will

at

once

be

effective

and

respectful

of

the

powers

of

other branches

of

government.

—

Madame Justice Beverly

M.

McLachlin

(1990)'

This

Court

has on

several occasions accepted

the

principle that damages

may

be

awarded

for

breach

of

Charter

rights....

However,

no

body

of

jurisprudence

has yet

developed

in

respect

of

the

principles which might govern

the

award

of

damages

under

the ...

Charter.

—

RJR-MacDonald

Inc.

v.

Canada (Attorney General)

(1994)^

After

more than

two

decades

of

experience with

the

Charter,

very little

can be

said

with

confidence

about

the

structure

of

the

damage claim under section

24(1).

—

Sujit

Choudry

&

Kent

Roach,

"Statutory

Discretion,

Constitutional

Remedies,

and

Democratic Accountability"

(2003)3

Janet

E.

Minor

is

General Counsel with

the

Constitutional

Law

Branch

of the

Min-

istry

of the

Attorney General.

The

views expressed

in

this paper

are the

author's

own and do not

represent

the

position

of the

Ministry

of the

Attorney General.

The

author thanks

Dan

Phelan,

student-at-law

with Constitutional

Law

Branch,

for his

very helpful assistance with research

and

preparation

of

this paper.

"The

Charter:

A New

Role

for the

Judiciary?" (1991)

29

Alta.

L.

Rev.

540 at

559.

[1994]

i

S.C.R.

311 at

para.

61,

Cory

and

Sopinka

JJ.

(2003)

41(1)

Osgoode

Hall L.J.

i

at 22.

73

*

i

2

3

74

JANET

E.

MINOR

Despite occasional disagreements over

the

appropriate means

of

redress,

the

case

law

of

this Court, although

the law is

undoubtedly still

in its

early

stages

of

development

in

this area, stresses

the

need

for

flexibility

and

imagination

in

the

crafting

of

remedies

for

infringements

of

fundamental

human

rights.

—

Quebec (Commission

des

droits

de law

personne

et des

droits

de la

jeunesse)

v.

Communaute

urbaine

de

Montreal

(2004)*

A.

INTRODUCTION

In

1982,

the

Charter

dramatically changed

the

landscape

of

constitutional

litigation.

It

required

the

court

to

engage

in the

interpretation

of

fundamental

rights

for

Canadian citizens

and

gave

it a

more prominent role

in

gov-

ernment policy-making. With

the

advent

of the

Charter,

new

responsibil-

ity

was

placed

in the

courts

as the final

arbiters

of our

constitutional

law,

with greatly expanded powers

of

judicial

review.5

From

the

beginning

there

was

much speculation about

how the

judiciary would embrace

the

new

mandate

set for it by the

Charter.

How

would

the

judiciary

adjudi-

cate

upon

the

expanded range

of

subject matter that would inevitably

come

before

it?

And,

of

equal importance,

how

would

the

judiciary

en-

force

the new

constitutional rights

and

freedoms?

The

Charter

provided

the

courts with very broad remedial powers:

section 52(1)

—

the

ability

to

declare legislation

to be of no

force

and ef-

fect;

and

section 24(1)

—

the

ability

to

impose

a

remedy that

the

court

considers "appropriate

and

just

in the

circumstances."

In

view

of the

wide discretionary language contained

in

section

24, no

doubt many

po-

tential

plaintiffs

saw the

door

to the

Consolidated Revenue Fund

open-

ing. History

has

proven otherwise,

as

Charter

damages continue

to be

infrequently

awarded

by the

courts.6

4

[2004]

i

S.C.R.

789 at

para.

26,

LeBel

J.

5

Madame Justice B.M.

McLachlin,

"The

Charter:

A New

Role

for the

Judiciary?"

(1991)

29

Alta.

L.

Rev. 540.

6

As a

non-exhaustive

list,

the

cases include:

• Per se

awards:

Grossman

v.

Canada

(1984),

9

D.L.R. (4th)

588

(F.C.T.D.);

Lord

v. Al-

lison

(1986),

3

B.C.L.R.

(2d)

300

(S.C.);

Dulude

v.

Canada

(2000),

192

D.L.R. (4th)

714

(F.C.A.);

King

v.

Ontario

(Ministry

of

Attorney

General),

[2002]

O.J.

No.

4766

(S.C.J.)

[King];

Lafond

v.

Purslow,

[2003]

B.C.J.

No. 144

(S.C.);

Morin

v,

P.E.I.

Regional

Ad-

ministrative

Unit

No. 3

School

Board,

[2005]

P.E.I.J.

No. 42

(S.C.A.D.)

[Morin].

•

Compensatory awards:

Blouin

v.

Canada,

[1991]

F.C.J.

No.

1171

(T.D.);

Johnson

v.

Ontario

(Minister

of

Revenue)

(1990),

75

O.R. (2d)

558

(C.A.);

Rollinson

v.

Canada,

[1994]

F.C.J.

No. 50

(T.D.);

Chrispen

v.

Prince

Albert

(City)

Police

Department

(1997),