Remedies
| Author | Hon. Robert J. Sharpe, Kent Roach |
| Pages | 400-433 |
400
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 Char-
ter 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 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 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 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 viol ation, 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 i nfringement. 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 translate s the right into
concrete form. There would be little point in claiming right s without
effective and meaningf ul remedies for their violation.
Remedies 4 01
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 circumstances.” The remedies of stays of proceed-
ing and exclusion of evidence under section 24(2) in criminal cases
have been considered in Chapter 14. This chapter will review remedies
available under section 24(1) as well as a variety of remedi al responses
that courts use to en force the mandate in section 52(1) of the Constitu-
tion 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 avail-
ability of specific remedies i s examined, some general considerations
about the remedial role of the courts and remedi al decision making
will be examined.
A. GENERA L CONSIDERATIONS GOVERNING
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 violate 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 manda-
tory rule that legi slation 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 sect ion
24(1) on the basis of governmental fault.3
THE
CHARTER OF R IGHTS AND FREEDOM S
402
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 i n 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 it s 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). In addition, courts sometimes
soften the remedy of striking down a law by suspending a declaration
of invalidity for six to eighteen months in order to provide the legisla-
ture an opportunity to enact new legislation before the declaration of
invalidity take s effect.
The jurisdiction of courts and tribunals was discus sed in Chapter 7.
The provincial superior courts h ave constant concurrent juris diction 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 tribuna ls 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 th at 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 remed ies
unless the legisl ature has clearly removed that power from the tribun al.4
2) Purposes and Constraints in Crafting Remedies
In Doucet-Boudreau v Nova Scotia,5 the Supreme Court outlined some
general principles to govern the craft ing of appropriate and just rem-
edies under section 24(1) of the Charter. Section 24(1) should be given
the same generous and purposive interpretation as applies to other
parts of the Char ter. Its purpose is to provide responsive and effective
remedies.6 Section 24(1) can require novel and creative remedies, and
“it is difficult to imag ine language which could give the court a wider
36; R v Conway, [2010] 1 SCR 765.
6 Ibid at para 25.
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