Remedies
| Author | Robert J. Sharpe; Kent Roach |
| Pages | 491-530 |
491
CH AP TER 18
R EM EDIES
The Charter of Rights and Freedoms diers from the Cana dian Bill of
Rights in its emphasis on eective remedies. Sect ion 24(1) of the Char-
ter provides: “Anyone whose rights or freedoms, as guaranteed by
this Charter, have been infringed or denied m ay 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 t he
provisions of the Constitution is, to t he extent of the inconsistency, of
no force and eect.”
As noted in Chapters 3 and 4, the first stage in a ny Charter case is the
consideration of whether a right or freedom has been inf ringed or denied.
If the court finds th at 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 mea sures should be taken in view
of the infringement. It has long been a pr inciple of our law that there ca n
be no right without an eective remedy. A remedy is the operative ele-
ment of a court’s order that translates the r ight into concrete form. There
would be little point in claiming r ights without eective and meaningful
remedies for their violation.
There are a variety of possible remedial opt ions. Section 24(1) of the
Charter assures the individual whose r ights have been violated that he
or she will be given “such remedy as the court considers appropriate
THE CHARTER OF R IGHTS AND FR EEDOMS492
and just in the circumst ances.” The remedies of stays of proceeding,
sentence reductions, habeas corpus, and exclusion of evidence under
section 24(2) in criminal cases were considered in Chapter 14. This
chapter reviews remedies avai lable under section 24(1) as well as a var-
iety of remedial response s that courts use to enforce the mandate in
section 52(1) of the Constitution Act, 1982 that any law that is incon-
sistent with the Char ter is of no force and eect to the extent of the
inconsistency. As discussed in Chapter 17, section 24(1) of the Charter
does not apply to Aboriginal and tre aty rights under section 35 of the
Constitution Act, 1982. Nevertheless, the courts ca n order a range of
remedies to enforce both section 35 rights and the government’s duty
to consult with Indigenous peoples. Before the availabil ity of specific
remedies is exam ined, some general considerations about the remedial
role of the courts and remedial decision making will be examined.
A. GENER AL CONSIDER ATIONS GOVERNI NG
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 of Canada has stres sed the dierent roles and pur-
poses of constitutional remed ies under section 24(1) of the Charter a nd
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 dierent remedial purposes. Section 52(1) provides a remedy for
laws th at violate Char ter rights either in pur pose or in eect. Section
24(1), by contrast, provides a remedy for governme nt acts that v iolate
Charter r ig h ts .”1 Judges 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 provides a
mandator y rule t hat legislation that is inconsistent wit h the Const itu-
tion is of no force and eect. Remedies under both section 24(1) and sec-
tion 52(1) can only rarely be combined2 — for example, in case s where
ori gi nal ].
Remedies 493
a law is declared inval id under section 52(1), but damages are justified
under section 24(1) on the basis of governmental fault.3
In Fergu son , 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 crafting 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 in its entirety is t he
only available remedy under section 52(1) to deal with a law t hat is an
unjustified violation of the Charte r. Although section 52(1) is framed in
mandatory term s, judges still have many remedia l choices when deter-
mining remedies under t hat section. As will be seen, the remedies of
reading in, readi ng down, and severance are alternatives to the com-
plete striking down of a law under section 52(1). Another alternative is
a tailored or less tha n complete declaration of invalidity, as was used
when the Court found the assisted suicide oence constitutiona lly over-
broad.4 In addition, courts sometimes soften the remedy of striking
down a law by suspendi ng a declaration of invalidity for six to eighteen
months in order to provide the legislature w ith an opportunity to enact
new legislation before the declaration of invalidity takes eect. The
Court extended the suspended decl aration of invalidity in the as sisted
dying case to si xteen months to account for the time that Parliament
was dissolved from the 2015 election campaign but also provided that
individual applicants could obta in court-ordered exemptions from the
assisted suicide oence during this extended period.5
The jurisdiction of courts and t ribunals was di scussed in Chapter
7. 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 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 jurisdict ion
3 Mackinv New Brunswick (Minister of Finan ce); Ricev New Brunswick, 20 02 SCC 13,
A similar ap proach was taken by lower court s when the subsequent assi sted dying
restrict ions were found to violate s 7 of the Charter. See Truchon c Procureur gén é-
ral du Canada, 2019 QCCS 3792 and Truchon c Procureur général du Cana da, 2020
QCCS 772.
To continue reading
Request your trial