A. General Considerations Governing the Exercise of Remedial

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

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1) The Availability of Remedies under Section 24(1) of the Charter and Section 52(1) of the Constitution Act, 1982

The Supreme Court has stressed the different roles and purposes of constitutional remedies under section 24(1) of the Charter and section 52(1) of the Constitution Act, 1982. Chief Justice MCLACHLIN has written in the 2008 case of R v Ferguson "that sections 52(1) and 24(1) serve different remedial purposes. Section 52(1) provides a remedy for laws that violate Charter rights either in purpose or in effect. Section 24(1), by contrast, provides a remedy for government acts that violate Charter rights."1Judges have an explicit grant of remedial discretion under section 24(1) and remedies can be sought under that section only by a person whose own rights have been violated. Section 52(1) is a more general statement of constitutional supremacy and it provides a mandatory rule that legislation that is inconsistent with the constitution is of no force and effect. Remedies under both section 24(1) and 52(1) can only rarely be combined,2for example, in cases where a law is declared invalid under section 52(1) but damages are justified under section 24(1) on the basis of governmental fault.3

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In Ferguson, the Court held that the only remedy for an unconstitutional mandatory minimum sentence enacted by Parliament is to strike down the law in its entirety under section 52(1). The Court was concerned about the uncertainty that would be caused by crafting case-by-case exemptions from the law. At the same time, however, it would be a mistake to assume that striking down a law in its entirety is the only available remedy under section 52(1) to deal with a law that is an unjustified violation of the Charter. Although section 52(1) is framed in mandatory terms, judges still have remedial choices when determining remedies under that section. As will be seen, the remedies of reading in, reading down, and severance are alternatives to the complete striking down of a law under section 52(1). In addition, courts sometimes soften the remedy of striking down a law by suspending a declaration of invalidity for six to eighteen months in order to provide the legislature an opportunity to enact new legislation before the declaration of invalidity takes effect.

The jurisdiction of courts and tribunals was discussed in Chapter 7. The provincial superior courts have constant concurrent jurisdiction to award constitutional remedies under both section 24(1) of the Charter and declarations of invalidity under section 52(1) of the Constitution Act, 1982. The jurisdiction of other courts and tribunals to award constitutional remedies depends on their statutory jurisdiction. In order to award a remedy under section 24(1) of the Charter, a court or tribunal must have jurisdiction, independent of section 24(1), over the parties, subject matter, and remedy requested. A tribunal that has jurisdiction to decide questions of law will be presumed to have jurisdiction to apply the Charter as the supreme law and to award Charter remedies unless the legislature has clearly removed that power from the tribunal.4

2) Purposes and Constraints in Crafting Remedies

In Doucet-Boudreau v Nova Scotia,5the Supreme Court outlined some general principles to govern the crafting of appropriate and just remedies under section 24(1) of the Charter. Section 24(1) should be given the same generous and purposive interpretation as applies to other parts of the Charter. Its purpose is to provide responsive and effective remedies.6Section 24(1) can require novel and creative remedies, and "it is difficult to imagine language which could give the court a wider

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and less fettered discretion."7The remedial discretion of the superior courts is not limited by statutes or common law, but only by constitutional principles that require

1) a meaningful remedy that responds to the circumstances of the violation and the claimant;

2) respect for the role of the legislature and the executive;

3) reliance on judicial functions and powers; and

4) fairness to the party against whom the remedy is directed.8This approach stresses the need for remedies to be effective while also setting out constraints on remedies, including the need to respect the roles of courts, legislatures, and the executive, and to be fair to the parties. Effective and meaningful remedies require attention to both the nature of the violation in the past and the need to ensure compliance with the Charter in the future. In the result, a majority of the Court upheld a trial judge’s decision to retain...

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