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

Page 400

The Charter of Rights and Freedoms differs from the Canadian Bill of Rights in its emphasis on effective remedies. Section 24(1) of the Charter 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.

In addition, section 52(1) of the Constitution Act, 1982 provides:

The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force and effect.

As noted in Chapters 3 and 4, the first stage in any Charter case is the consideration of whether a right or freedom has been infringed or denied. If the court finds that there has been a Charter violation, it then passes to the second stage to consider whether the violation can be justified as a reasonable limit under section 1. If a violation cannot be justified, the court must then decide what practical measures should be taken in view of the infringement. It has long been a principle of our law that there can be no right without an effective remedy. A remedy is the operative element of a court’s order that translates the right into concrete form. There would be little point in claiming rights without effective and meaningful remedies for their violation.

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