Remedies

• Author: Robert J. Sharpe; Kent Roach
• Pages: 424-460

424

CH A PTE R 17

R EM EDIES

The Charter of Rights and Freedoms differs from the Canadian Bill of

Rights in its emphasis on effective remedies. Sect ion 24(1) of the Charter

provides:

Anyone whose rights or free doms, as guaranteed by th is Charter,

have been infr inged or denied may apply to a court of competent

jurisdict ion to obtain such remedy as the court conside rs appropriate

and just in the circ umstances.

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

The Constitution of Canad a is the supreme law of Canada, and a ny

law that is incon sistent with the provisions of the Con stitution is, to

the extent of the incons istency, of no force and effect.

As noted in Chapters 3 and 4, the f‌irst stage in any Ch arter case

is the consideration of whether a right or freedom has been infringed

or denied. If the court f‌inds th at there has been a Charter violation, it

then passes to t he second stage to consider whether the violation can

be justif‌ied as a rea sonable limit under section 1. If a violation cannot

be justif‌ied, the court must then dec ide what practical measure s should

be taken in view of the in fringement. 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 right s without

effective and meaningf ul remedies for their violation.

Remedies 425

There are a variety of possible remedial options. Section 24(1) of

the Charter assure s the individual whose rights have been violated t hat

he or she will be given “such remedy as the court considers appropri-

ate and just in the circumst ances.” The remedies of stays of proceeding,

sentence reductions, habeas cor pus, and exclusion of evidence under

section 24(2) in crimina l cases have been considered in Chapter 14.

This chapter will rev iew remedies available under section 24(1) as well

as a variety of remedia l responses that courts use to enforce the man-

date in section 52(1) of the Constitution Act, 1982 that any law that is

inconsistent with the Charter is of no force and effect to the extent of

the inconsistency. Before the availability of specif‌ic remedies is exam-

ined, some general considerations about the remedial role of the court s

and remedial decision making will be examined.

A. GENER AL CONSIDER ATIONS GOVER NING

THE EXERCISE OF REMEDIAL DISCRETION

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 d ifferent roles and purposes of

constitutional remedies under sect ion 24(1) of the Charter and section

52(1) of the Constitution Act, 1982. Chief Justice McLachlin has wr itten

in the 2008 case of R v Ferguson “that sections 52(1) and 24(1) serve

different remedial pur poses. Section 52(1) provides a remedy for laws

that v iolate Charter rights either in purpose or in effect. Section 24(1),

by contrast, provides a remedy for government acts that violate Char-

ter r igh ts .”1 Judges have an explicit grant of remedia l discretion under

section 24(1) and remedies can be sought under that section only by a

person whose own rights h ave been violated. Section 52(1) is a more

general statement of constitutional supremacy and it provides a man-

datory 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,2 for 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

1 R v Ferguson, [2008] 1 SCR 96 at para 61 [Ferg uson].

2 Schachter v Can ada, [1992] 2 SCR 679 [Schachter].

3 Mackin v New Brunswick, [2002] 1 SCR 405 [Mackin].

THE

CHARTER OF R IGHTS AND FREEDOM S

426

In Fergus on, the Court held that the only remedy for an uncon-

stitutional 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 t hat would be caused by craft ing case-

by-case exemptions from the law. At the same time, however, it would

be a mistake to as sume that striking down a law i n its entirety is the

only available remedy under section 52(1) to deal with a law th at is an

unjustif‌ied violation of the Charte r. Although section 52(1) is framed in

mandatory term s, judges still have remedia l 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 strik-

ing down of a law under section 52(1). Another alternative is a tailored

or less than complete declaration of invalidity, as was used when the

Court found the assisted suicide offence constitutionally overbroad.4 In

addition, courts sometimes soften t he remedy of striking down a law

by suspending a declaration of invalidity for six to eighteen months in

order to provide the legislature an opportun ity to enact new legislation

before the declaration of invalidity t akes effect. The Court extended

the suspended declarat ion of invalidity in the assisted dying c ase to

sixteen months to account for the time that Parliament was dissolved

from the 2015 election campaign, but also provided that individual ap-

plicants could obtain court-ordered exemptions from the assisted sui-

cide offence during this extended period.5

The jurisdiction of courts and t ribunals was discus sed in Chapter 7.

The provincial superior courts h ave 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 Constitutio n

Act, 1982. The jurisdiction of other courts and tribunals to award con-

stitutional remedies depends on t heir 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 t hat 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 legisl ature has clearly removed that power from the tribuna l.6

4 Carter v Canad a (Attorney General), [2015] 1 SCR 331 [Carter 2015].

5 Carter v Canada (Attor ney General), 2016 SCC 4 [Carter 2016].

6 Nova Scotia (Workers Compensation Board) v Mart in, [2003] 2 SCR 504 at para

36; R v Conway, [2010] 1 SCR 765.