Preface

• Author: W.H. Charles
• Pages: 13-16

xi

Preface

It has been more than thirt y years since the Const itution Act, 19821 was

passed by the British Parliament. Pa rt I of that Act contains the Cana dian

Charter of Rights and Freedoms,2 which establishes for all Canad ians recogni-

tion and protection of certain basic rights and freedoms considered to be es-

sential to the maintenance of our free a nd democratic society. One section

of the Charte r, section 24, entitled “Enforcement,” provides that any person

or group whose rights have been denied or infrin ged upon by state action

can apply to a court for a remedy deemed by the court to be “appropriate and

just in the circumsta nces.” Section 24(1) does not list specif‌ic remedies that

may qualify as appropriate a nd just. Instead, a broad discretion is conferred

upon the court to determine what speci f‌ic remedy would be considered by

the court to be suitable in the circu mstances of the individual case.

Remedies can be either defensive, as in the case of a stay of proceeding s,

or af‌f‌irmative, as in t he case of an injunction or damages, which require fur-

ther positive action.3 In addition to damages, an injunct ion, or a stay, there are

a variety of other potential remedies, such as a decla ration, costs, an acquit-

tal, or a prerogative writ in the form of cer tiorari, mandamus, prohibition,

or habeas corpus.4 Exclusion of evidence as a remedy is specif‌ically prov ided

1 Being Schedule B to the Cana da Act 1982 (UK), 1982, c 11.

2 Part I of the Constitution Act, 1982, ibid [Charter].

3 This distinction is expla ined more fully by Professor Ken Cooper-Stephenson

in his book Char ter Damages Claims (Toronto: Carswell, 1990) at 4–6.

4 A more complete list would include interpretive remedial act ions such

as “reading dow n,” severance, nullif‌ication, constitut ional exemption, and