Remedies

• Author: Hon. Robert J. Sharpe/Kent Roach
• Profession: Court of Appeal for Ontario- Faculty of Law University of Toronto
• Pages: 336-358

CHAP TER 17

REMEDIES

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

Rights in its emphasis on effective remedie s. Section 24(1) of the Char-

ter provides:

Anyone whose rights or freedoms, as guaranteed by this Charter,

have been inf ringed or denied may apply to a cou rt of competent

jurisdict ion to obtain such remedy as the court consider s 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 Can ada, and any

law that is incon sistent with t he provisions of t he Constitution is, to

the extent of the incon sistency, of no force and effect.

As noted in chapters 3 and 4, the first st age in any Charter 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 ca n

be justified as a re asonable limit under section 1. If a violation cannot

be justified, t he court must then decide what practical me asures should

be taken i n view of the infr ingement. It has long bee n a principle of our

law that there can be no r ight without an effective remedy. A remedy

is the operative element of a court’s order that translates t he right into

concrete form. There are a variety of possible remedial options. Section

336

Remedies 337

24(1) of the Charter assures the individual whose rights have been vio-

lated that he or she will be given “such remedy as the court considers

appropriate and just in the circumstance s.” The remedies of stays of

proceeding and exclusion of evidence under sect ion 24(2) in crimi-

nal cases h ave been considered in chapter 14. This chapter will rev iew

remedies available under section 24(1) as well as a variety of remedial

responses t hat courts use to enforce the mandate 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.

A. DECL AR AT ORY R ELIEF

In some cases, the rights claimant may seek no more than a declara-

tion from the court of the Charter right at issue. In the common law

tradition, courts tend to avoid mak ing hollow pronouncements of law

removed from any concrete order. There is, however, a well-established

jurisdiction to award declarations of right in appropr iate cases. In con-

stitutional law, the declaration has proved to be an importa nt remedy

because of its flexibility. By declaring the right and going no further,

the court defines the res pective legal rights and obligat ions of the par-

ties but leaves to them the task of implementing the demands of the

constitution. From an instit utional perspect ive, it may not be desirable

for the court to become too involved in the details of implementation

unless absolutely necessar y. The alternative to a declaration is often a

court order or injunction, which has to be articulated in clear term s

because any violation of such an order may be punished as contempt

of court. Although “declarations are often preferable to injunctive relief

because they are more flexible, require less supervision, and are more

deferential to the other branche s of governments,” they can be inad-

equate when Charter violations are the result of systemic inadequacies;

where “administrators have proven themselves unworthy of trust”;

where subsequent litigation is likely; and where there is a need for re-

medial specificity and ongoing monitoring of compliance.1

Litigation involving minority l anguage education rights ser ves as

an example of the effective use of t he remedy of declaration. As seen in

chapter 16, section 23 of the Charter guarantees parents the right to have

their children educated in Engli sh or French in certain circum stances.

1Little Sisters Book and Ar t Emporium v. Canada (Minister of Justice), [2000] 2

S.C.R. 1120, 193 D.L.R. (4th) 193 at paras. 258 –61 [Little Sisters], Iacobucci J. in

dissent, b ut not on this issue.