Remedies

• Author: Robert J. Sharpe, Kent Roach
• Pages: 373-403

373

CHA PTER 17

R EM EDIES

The Charter of Rights and Freedoms d iffers from the Canadian Bill of

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

ter provides:

Anyone whose r ights or freedoms, as guaranteed by this Charter,

have been in fringed or den ied may apply to a court of competent

jurisdict ion to obtain such remedy as the court considers appropriate

and just in the circ umstances.

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

The Constitution of Canada i s the supreme law of Canada, and any

law that is incon sistent with the provisions of the C onstitution 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 ha s been infringed

or denied. If the court f‌inds th at there h as been a Charte r viol ation, it

then pas ses to the second stage to consider whether the violation can

be justif‌ied as a re asonable 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 th at there can be no right w ithout an effective remedy. A remedy

is the operative element of a court’s order that translates the right into

concrete form. There would be litt le point in claiming rights without

effective and meaningf ul remedies for their violation.

THE CHARTER OF R IGHTS AND FR EEDOMS374

There a re a variety of pos sible remedial options. Section 24(1) of

the Charter assures the indiv idual whose rights have been violated that

he or she w ill be given “such remedy as t he court considers appropri-

ate and just in the circumstances.” The remedies of stays of proceeding

and exclusion of ev idence under section 24(2) in crimin al cases have

been considered in chapter 14. This chapter will review remedies avail-

able under section 24(1) as well as a var iety of remedial responses that

courts use to enforce the mandate in section 52(1) of the Constitution

Act, 1982 that any law that is inconsistent with the Ch arter is of no

force and effect to the extent of the inconsistency. Before the avai labil-

ity of specif‌ic remedies is examined, some general considerations about

the remedi al role of the courts and remedial decision m aking will be

examined.

A. GENERAL 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 h as stressed the different roles and purposes of

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

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

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

serve different remed ial purpos es. Section 52(1) provides a remedy for

laws that violate Ch arter rights either i n purpose or in effect. Section

24(1), by contra st, prov ides a remedy for gover nment acts that violate

Charter r ig ht s.” 1 Judges have an explicit grant of remedial discretion

under section 24(1) and remedies can only be sought under that sec-

tion by a person whose own r ights have been v iolated. Section 52(1) is

a more general statement of constitutional supremacy and it provides a

mandatory rule t hat legisl ation that is inconsistent with the constitu-

tion is of no force and effect. Remedies under both sect ion 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 S.C.R. 96 at para. 61 [Ferg uso n].

2 Schachter v. Canada, [1992] 2 S.C.R. 679 [Schachter].

3 Mackin v. New Brunswick, [2002] 1 S.C.R. 405.