B. Specific Remedies

Author:Robert J. Sharpe - Kent Roach
Profession:Court of Appeal for Ontario - Faculty of Law, University of Toronto

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1) Declaratory Relief

In some cases, the rights claimant may seek no more than a declaration from the court of the Charter right at issue. In the common law tradition, courts tend to avoid making hollow pronouncements of law removed from any concrete order. There is, however, a well-established jurisdiction to award declarations of rights in appropriate cases. In constitutional law, the declaration has proved to be an important remedy because of its flexibility. By declaring the right and going no further, the court defines the respective legal rights and obligations of the parties but leaves to them the task of implementing the demands of the constitution. From an institutional perspective, it may not be desirable for the court to become too involved in the details of implementation unless absolutely necessary. The alternative to a declaration is often a court order or injunction, which has to be articulated in clear terms 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 branches of governments," they can be inadequate when Charter violations are the result of systemic flaws; where

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"administrators have proven themselves unworthy of trust"; where subsequent litigation is likely; and where there is a need for remedial specificity and ongoing monitoring of compliance.21Litigation involving minority-language education rights early in the life of the Charter serves as an example of the effective use of the remedy of declaration. As seen in Chapter 16, section 23 of the Charter guarantees parents the right to have their children educated in English or French in certain circumstances. While the courts are able to determine when section 23 rights arise, it is quite another matter for them to determine the institutional arrangements appropriate to fulfill those rights. The demands of the Charter will be one important consideration in the design of a minority-language education facility, but there will be many other matters to be taken into account that have nothing to do with constitutional law. Furthermore, there may be a variety of ways to design a school system that respects the demands of section 23. Courts and judges are not experts in schools or education. Courts do not have the competence to raise resources or allocate public funds among competing claims and demands. In view of this, it may be in the public interest as well as in the interest of the litigants for the court simply to declare the right and leave it to the litigants and the appropriate public authorities to work out the practical arrangements. In Mahe v Alberta,22

the Supreme Court of Canada upheld the section 23 claim of a group of French-speaking parents and granted a declaration of their rights but stopped short of determining the details of school administration. Chief Justice Dickson explained:

I think it best if the court restricts itself in this appeal to making a declaration in respect of the concrete rights which are due to the minority language parents in Edmonton under s 23. Such a declaration will ensure that the appellant’s rights are realized while, at the same time, leaving the government with the flexibility necessary to fashion a response which is suited to the circumstances . . . . [T]he government should have the widest possible discretion in selecting the institutional means by which its s 23 obligations are to be met; the courts should be loath to interfere and impose what will be necessarily procrustean standards, unless that discretion is not exercised at all, or is exercised in such a way as to deny a constitutional right.23

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Declarations may be preferred in other contexts. The Supreme Court reversed a mandatory order that Canada make diplomatic representations to the United States for Omar Khadr to be returned to Canada; instead, it issued a declaration that his rights had been violated by Canadian interrogations of him when subject to American military detention at Guantanamo Bay. The use of a declaration gave the government flexibility in deciding how to respond to the violation in light of its conduct of foreign policy with the United States.24The government issued a diplomatic note that requested the United States not to use the results of the Canadian interrogation in military commission proceedings against Khadr.

While Court declarations provide the government with flexibility to decide what precise steps to take to comply with them, a declaration can, at the same time, result in further litigation if the applicant is not satisfied with the government’s response to the declaration. This is what happened in both the Little Sisters and Khadr cases. Little Sisters bookstore was not satisfied with how customs responded to the declaration that customs had infringed the bookstore’s sections 2 and 15 rights; the bookstore commenced further litigation, which was ended when the Supreme Court refused to grant the small bookstore advance costs.25In subsequent litigation in the Khadr case, a trial judge found that Omar Khadr had not received an effective remedy and that the government should have consulted with him before issuing a diplomatic note in response to the declaration. The trial judge required the government to propose a more effective remedy and said it should have considered Khadr’s representations before issuing a remedy, which could have included a mandatory order that Canada request his repatriation.26This judgment, however, was stayed pending appeal, with the appeal judge expressing doubts whether courts could require the government to make diplomatic representations on behalf of its citizens. The appeal was subsequently held to be moot after Khadr pled guilty before an American military commission and returned to Canada to serve the remainder of his sentence.27The preference for general declaratory relief, even in the minority-language rights context, is not absolute. For example, when faced with nearly a century of Manitoba’s refusal to enact laws in French as well as

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in English, the Supreme Court did not rely on a declaration in the Reference Re Manitoba Language Rights.28As will be examined below, the Supreme Court, in its 2003 decision in Doucet-Boudreau,29affirmed the availability of injunctive relief and the retention of supervisory jurisdiction in a case where there was delay in implementing minority-language school rights under section 23 of the Charter. In the Insite case, the Court also found that the use of a declaration would be inadequate because it might result in delay and further litigation with respect to the granting of a ministerial exemption from drug laws to allow a safe injection site to operate. The Court issued a mandatory order that the minister grant the exemption stressing that, on the available evidence, there was no other constitutional option.30The Supreme Court’s preference for declaratory relief rather than more specific injunctive relief has also been seen in some equality rights cases. In Eldridge v British Columbia (Attorney General),31the Court interpreted section 15 of the Charter to require that those who are deaf or hearing impaired be provided with sign-language interpreters for medically required services. Justice La Forest stated for an unanimous court that a

declaration, as opposed to some kind of injunctive relief, is the appropriate remedy in this case because there are myriad options available to the government that may rectify the unconstitutionality of the current system. It is not this Court’s role to dictate how this is to be accomplished.32A declaration differs from an injunction because it is not enforced through the court’s contempt power. Because of this, declarations can be more general and vague than injunctions and can give the government more flexibility to decide how to comply with them.

2) Injunctions

An injunction is an order of the court requiring a party to act in a manner specified by the order. In its usual form, the injunction is a negative order that forbids a party from doing something that infringes the rights of another. It is also possible, however, for the court to give a mandatory injunction that requires the wrongdoer to take positive steps to respect the

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rights of the other party. In ordinary civil litigation, injunctions are seen as exceptional remedies, available only where damages are an inadequate remedy for the wrong. In constitutional litigation, injunctions and other mandatory orders may be appropriate, especially in cases where declarations or damages would be inadequate. The most difficult issue faced in connection with injunctions as a Charter remedy arises where the court is asked to grant an injunction that requires ongoing supervision or judicial involvement. Charter litigation often involves the operation of complex public institutions. Granting an injunction requiring that an institution take certain steps implies that the court is willing to enforce its order. If the public institution willingly complies, there is no problem. But what happens if there is resistance to the court’s order?

American experience with constitutional injunctions is instructive. In litigation involving desegregation of schools and conditions of prisons, American judges evolved what came to be known as the "structural" or "civil rights" injunction, whereby courts became involved in the detailed management of a scheme...

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